Exhibit 4.6


 


THE SYMBOL "****" DENOTES
PLACES WHERE PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. SUCH MATERIAL HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.


 


June 3, 2010


 


CONFIDENTIAL


 


ProSeed Capital Holdings CVA


Vlierbeekberg 107


3090 Overijse, Belgium


 


FEE AGREEMENT


 


This agreement (this
“Agreement”) sets forth the terms of the agreement between a RedHill Biopharma Ltd., together with its
subsidiaries, affiliates, shareholders, stakeholders (the “Company”) and ProSeed Capital Holdings CVA
(together with its subsidiaries and affiliates, “ProSeed”), pursuant to which the Company has agreed
to engage ProSeed, on a non-exclusive basis, to perform certain advisory services, as described herein. Specifically, the Company
and ProSeed agree as follows:


 


1.          Services;
Introduced Parties. During the term of this Agreement, ProSeed will identify, make initial contacts with and arrange direct
or indirect introductions for the Company with potential equity and/or debt investors, joint venture/licensing partners, buyers
and acquisition targets (“Introduced Parties”). The parties shall agree upon the identity of all Introduced
Parties, who shall be listed on Exhibit A attached to this Agreement (which Exhibit A shall be updated from time
to time to include additional Introduced Parties). ProSeed will not, directly or indirectly, disclose the identity of the Company
without the Company’s prior consent when making initial contacts with potential joint venture/strategic partners and buyers,
but ProSeed shall be entitled to mention the Company in a generic way when approaching potential Introduced Parties. The Company
shall be under no obligation to enter into any transaction or other arrangement with any Introduced Party and the terms thereof
shall be subject to the Company’s sole discretion and approval. ProSeed will not make any agreement or commitment on behalf
of the Company without prior authorization from the Company. In addition, ProSeed will not provide confidential information regarding
the Company to any potential investor, joint venture/licensing partner, buyer and/or acquisition targets without the prior written
approval of the Company. For the purposes of this Agreement, “Introduced Parties” shall also include and cover those
parties that have previously been introduced by ProSeed to the Company as identified on Exhibit A attached to this Agreement
provided ProSeed advises RedHill and actively contributes to the discussions between RedHill and these parties regarding their
new investment in RedHill. ProSeed has endeavored (and will continue to endeavor) to ensure that Exhibit A is as complete
as possible, however, in the event that during the term of this Agreement ProSeed subsequently determines that an Introduced Party
has been inadvertently omitted from Exhibit A, such Exhibit A shall be amended, subject to the consent of the
Company (not to be unreasonably withheld), to include such omitted Introduced Party.


 



    	 



    	 



    

 


2.          Compensation
–Financing Transactions. In the event that the Company consummates a financing transaction or any other form
of equity or debt based, or equity or debt linked financing, including but not limited to convertibles and warrants, in which the
Company receives cash, cash equivalents, securities, and/or any other monetary and/or non-monetary value or consideration, including
the exercise of warrants, with any Introduced Party (an “Financing Transaction”) during the term of this
Agreement (and/or within the “tail period” specified in Section 6, below), ProSeed shall be entitled to a cash or equity
fee (at the choice of ProSeed) equal to 6.0% plus VAT (if applicable) of the cash proceeds received by the Company from such Introduced
Party. All amounts payable to ProSeed under this Section 2 shall be paid to ProSeed (or its designee) within 21 days of the closing
of the applicable Financing Transaction.


 


3.          Notice
of Transactions with Introduced Parties. The Company will inform ProSeed and keep ProSeed updated about relevant developments
involving Introduced Parties on a regular basis and in a timely manner. The Company will inform ProSeed in writing about any transaction
that will result in a fee payable to ProSeed under Sections 2 or 4 of this Agreement within 7 days of the date of such transaction
and will provide ProSeed with the details thereof and, except as may otherwise be prohibited by confidentiality obligations, a
copy of the relevant transaction documents related thereto. For the avoidance of doubt, the parties agree that the fees payable
under Sections 2of this Agreement shall be mutually exclusive and ProSeed shall not be entitled to receive duplicate fees on any
transactions covered thereby.


 


4.          Termination.
This Agreement will be affective until December 31, 2011; provided, however, that either party may terminate this Agreement
prior to such date upon not less than 30 days' prior written notice. Upon any termination of this Agreement, the parties shall
agree in writing as to the identity of the Introduced Parties through the date of such termination. Notwithstanding any provision
herein to the contrary, in the event that the Company consummates an Financing Transaction with any of such Introduced Parties
during the 18-month period following the expiration or termination of this Agreement (the “tail period”),
ProSeed shall be entitled to receive and/or continue to receive compensation as provided in Sections 2 of this Agreement in respect
of such transaction as provided herein. Notwithstanding the foregoing, warrants given to or bought by Introduction Parties before
or during the term or tail of this Agreement but exercised after the term or tail of this Agreement entitle ProSeed to the above
mentioned fees.


 


5.          ProSeed
Acknowledgements. ProSeed further acknowledges and agrees that (i) ProSeed's relationship with the Company is non-exclusive,
(ii) that the Company is under no obligation whatsoever to enter a transaction with any Introduced Party, (iii) that the Company
may independently, or with the help of others not related to ProSeed, seek persons to invest in the Company, and in the event such
persons invest in the Company, no compensation will be owed to ProSeed, (iv) that ProSeed and the Company must comply with all
laws and regulations applicable to the issuance of Company securities, (v) that, except as provided in Sections 2 and 4 hereof,
ProSeed is not entitled to any other fee, retainer, reimbursement, commission or other payment from the Company and (vi) that in
the event of any tax liability that may result to ProSeed with respect to any compensation arising out of this Agreement, it shall
be assumed solely by ProSeed and ProSeed will provide the Company with an exemption from any tax withholding liability (failing
which, the Company shall be entitled to withhold any legally required amounts from payments due to ProSeed hereunder).


 



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6.          Miscellaneous.
This Agreement shall be governed by the laws of United Kingdom with exclusive jurisdiction of the courts of London. This Agreement,
together with any confidentiality agreements between ProSeed and the Company, embodies the entire agreement and understanding of
the parties hereto and supersedes all prior agreements and understandings, written and oral, relating to the subject matter hereof,
and may not be modified or amended or any term or provision hereof waived or discharged, except in writing, signed by the party
against whom such modification, waiver or discharge is sought to be enforced. This Agreement is not assignable by either party
without the prior written consent of the other party.


 


If you agree that this
Agreement accurately reflects our agreement on this matter, please sign as indicated below and forward a copy to the Company.


 


Company


 


	By:	/s/ Ori Shilo	 
	 	Ori Shilo, VP Finance and Operation	 


 


	ProSeed Capital Holdings CVA	 
	 	 
	By:	/s/ Benjamin Van Oudenhove	 
	 	Benjamin Van Oudenhove	 
	 	Chairman	 


 



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EXHIBIT A


ProSeed Introduced Parties 


Non-exhaustive list


 


[****]


 



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