PART
I.
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INFORMATION
REQUIRED IN
THE
SECTION 10
(a)
PROSPECTUS
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(a)
The
documents constituting the prospectus under Part I of this Registration
Statement with respect to the non-plan share options will be sent or given
to
the participants, as applicable, as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the “Securities Act”). These documents have
been omitted from this Registration Statement as permitted by Part I of Form
S-8.
(b)
Upon
written or oral request, XTL Biopharmaceuticals Ltd. (the “Company”) will
provide, without charge, the documents incorporated by reference in Item 3
of
Part II of this Registration Statement. The documents are incorporated by
reference in the Section 10(a) prospectus for the non-plan share options. The
Company will also provide, without charge, upon written or oral request, other
documents required to be delivered to participants pursuant to Rule 428(b)
of
the Securities Act. Requests for the above-mentioned information should be
directed to Ron Bentsur at (845) 267-0707, or by mail to XTL Biopharmaceuticals
Ltd., 711 Executive Blvd., Suite Q, Valley Cottage, NY 10989.
PART
II.
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INFORMATION
REQUIRED IN REGISTRATION
STATEMENT
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Item
3.
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Incorporation
of Documents by Reference.
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The
following documents filed with the Securities and Exchange Commission (the
“Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) are hereby incorporated by reference into this Registration
Statement:
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(1)
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The
Company’s Annual Report on Form 20-F for the year ended December 31, 2006;
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(2)
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The
Company’s Current Reports on Form 6-K filed with the Commission on March
29, 2007 (Film No. 07728344), June 11, 2007, August 15, 2007, August
28,
2007, September 10, 2007, September 17, 2007, September 26, 2007,
October
2, 2007, October 25, 2007, and October 31, 2007;
and
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(3)
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The
description of the Company’s share capital, par value NIS 0.02 per share,
contained in the Registration Statement on Form F-1, filed with the
Commission on April 20, 2006 (File
333-133445
).
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All
other
documents subsequently filed by the Company pursuant to Section 13(a), 13(c),
14
and 15(d) of the Exchange Act prior to the filing of a post-effective amendment
to this Registration Statement that indicates that all securities offered have
been sold or that deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and to
be
part hereof from the date of filing of such documents.
Any
statement contained in a document incorporated by reference herein and filed
prior to the filing hereof shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained
herein modifies or supersedes such statement, and any statement contained herein
or in any other document incorporated by reference herein shall be deemed to
be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in any other subsequently filed document which also
is incorporated by reference herein modifies or supersedes such statement.
Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration
Statement.
Item
6.
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Indemnification
of Directors and Officers.
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Israeli
law permits a company to insure an office holder in respect of liabilities
incurred by him or her as a result of an act or omission in the capacity of
an
office holder for:
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·
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a
breach of the office holder’s duty of care to the company or to another
person;
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·
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a
breach of the office holder’s fiduciary duty to the company, provided that
he or she acted in good faith and had reasonable cause to believe
that the
act would not prejudice the company;
and
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·
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a
financial liability imposed upon the office holder in favor of another
person.
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Moreover,
a company can indemnify an office holder for any of the following obligations
or
expenses incurred in connection with the acts or omissions of such person in
his
or her capacity as an office holder:
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·
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monetary
liability imposed upon him or her in favor of a third party by a
judgment,
including a settlement or an arbitral award confirmed by the court;
and
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·
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reasonable
litigation expenses, including attorneys’ fees, actually incurred by the
office holder or imposed upon him or her by a court, in a proceeding
brought against him or her by or on behalf of the company or by a
third
party, or in a criminal action in which he or she was acquitted,
or in a
criminal action which does not require criminal intent in which he
or she
was convicted; furthermore, a company can, with a limited exception,
exculpate an office holder in advance, in whole or in part, from
liability
for damages sustained by a breach of duty of care to the
company.
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The
Company’s Articles of Association allow for insurance, exculpation and
indemnification of office holders to the fullest extent permitted by law. The
Company has entered into indemnification, insurance and exculpation agreements
with its directors and executive officers, following shareholder approval of
these agreements. The Company has directors’ and officers’ liability insurance
covering its officers and directors for a claim imposed upon them as a result
of
an action carried out while serving as an officer or director, for (a) the
breach of duty of care towards the Company or towards another person, (b) the
breach of fiduciary duty towards the Company, provided that the officer or
director acted in good faith and had reasonable grounds to assume that the
action would not harm the Company’s interests, and (c) a monetary liability
imposed upon him in favor of a third party.
Exhibit Number
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Description
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4.1
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Articles
of Association†
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4.2
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Form
of Share Certificate (including both Hebrew and English translations)
^
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5.1
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Opinion
of Kantor & Co. regarding legality of the ordinary
shares
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23.1
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Consent
of Somekh Chaikin, a member firm of KPMG International, an independent
registered public accounting firm, dated January 17,
2008
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23.2
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Consent
of Kesselman & Kesselman, a member of PricewaterhouseCoopers
International Ltd., dated January 17, 2008
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23.3
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Consent
of Kantor & Co. (included in Exhibit 5.1)
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24.1
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Power
of Attorney (included on signature
page)
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†
Incorporated by reference from the registration statement on Form 20-F filed
by
XTL Biopharmaceuticals Ltd. with the Securities and Exchange Commission on
July
14, 2005, as it may be amended or restated.
^
Incorporated by reference from the annual report on Form 20-F filed by XTL
Biopharmaceuticals Ltd. with the Securities and Exchange Commission on March
23,
2007, as it may be amended or restated.
A.
Rule
415 Offering
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(a)
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The
undersigned registrant hereby
undertakes:
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(1)
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i)
To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii)
To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(iii)
To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
(2)
That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities being offered therein, and the offering
of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3)
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
B.
Subsequent
Documents Incorporated by Reference
The
undersigned registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall
be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be
the initial bona fide offering thereof.
C.
Indemnification
of Officers, Directors and Controlling Persons
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of
such issue.
POWER
OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that we, the undersigned officers and directors of XTL
Biopharmaceuticals Ltd. hereby severally constitute Ron Bentsur and Bill
Kessler, and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement filed herewith and any
and all amendments to said Registration Statement, including any registration
statements filed pursuant to Rule 462(b), and generally to do all such things
in
our names and in our capacities as officers and directors to enable XTL
Biopharmaceuticals Ltd. to comply with the provisions of the Securities Act
of
1933, as amended, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signature as they may be signed
by our said attorneys, or any of them, to said Registration Statement and any
and all amendments thereto.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities indicated
as of January 18, 2008.
Signatures
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Title
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/s/ Michael S. Weiss
Michael
S. Weiss
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Chairman
of the Board of Directors
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/s/ Ron Bentsur
Ron
Bentsur
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Chief
Executive Officer and
Authorized U.S. Representative
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/s/ Bill Kessler
Bill
Kessler
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Director
of Finance
(principal
financial and accounting officer)
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/s/ William J. Kennedy, Ph.D
William
J. Kennedy, Ph.D
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Non-executive
Director
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/s/ Ido Seltenreich
Ido
Seltenreich
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Non-executive
Director and External Director
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/s/ Vered Shany, D.M.D.
Vered
Shany, D.M.D.
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Non-executive
Director and External Director
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/s/ Ben Zion Weiner, Ph.D
Ben
Zion Weiner, Ph.D
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Non-executive
Director
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