RedHill Biopharma Ltd F-1, filed Jun 25, 2025
RedHill Biopharma Ltd. (RDHL)
F-1
2025-06-25
View Original
Added on
October 16, 2026
As filed with the Securities and Exchange Commission on June 25, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
REDHILL BIOPHARMA LTD.
(Exact name of Registrant as specified in its charter)
Not Applicable
(Translation of Registrant’s name into English)
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Israel
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2834
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Not Applicable
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(State or other jurisdiction of
incorporation or organization) |
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(Primary Standard Industrial
Classification Code Number) |
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(I.R.S. Employer
Identification No.) |
21 Ha'arba'a Street
Tel Aviv, 6473921, Israel
Tel: 972-3-541-3131
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
RedHill Biopharma Inc.
8311 Brier Creek Parkway
Suite 105-161
Raleigh, NC 27617
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
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Rick A. Werner, Esq.
Jayun Koo, Esq.
Haynes and Boone, LLP
30 Rockefeller Plaza, 26th Floor
New York, New York 10112
Tel. (212) 659-7300
Fax (212) 918-8989
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Perry Wildes, Adv.
Goldfarb Gross Seligman & Co.
One Azrieli Center
Tel Aviv 6702100, Israel
+972 (3) 607-4444
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Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not
to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting
Standards Codification after April 5, 2012.
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement
shall become effective on such date as the Securities and Exchange Commission, acting pursuant to such Section 8(a), may determine.
The information in this preliminary prospectus is not complete and may be changed. The selling shareholder named
in this prospectus may not sell these securities until the registration statement filed with the Securities and Exchange Commission, of which this preliminary prospectus is a part, is effective. This preliminary prospectus is not an offer to sell
these securities, and the selling shareholder named in this prospectus is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JUNE 25, 2025
PRELIMINARY PROSPECTUS
REDHILL BIOPHARMA LTD.
5,596,490 AMERICAN DEPOSITARY SHARES REPRESENTING 55,964,900,000 ORDINARY SHARES
This prospectus relates to resale from time to time by the selling shareholder identified in this prospectus (the “Selling Shareholder”), of up to
5,596,490 American Depositary Shares (“ADSs”), each ADS representing ten thousand (10,000) ordinary shares, par value NIS 0.01 per share (“Ordinary Shares”), or 55,964,900,000 ordinary shares in the
aggregate, that may be issued by us to Alumni Capital LP (“Alumni” or the “Selling Shareholder”) pursuant to that certain Any Market Purchase Agreement, dated as of June 20, 2025, by and between us and Alumni (the “Any Market Purchase Agreement”),
establishing a committed equity line of credit. Such ADSs include (i) up to 5,263,157 ADSs (the “AMPA ADSs”) that may be issued by the Company in connection with an equity line of credit, from time to time after the date of this prospectus, upon
the terms and subject to the conditions in the Any Market Purchase Agreement, which may include up to 5,263,157 ADSs (the “Prefunded Warrant ADSs”) issuable to the Selling Shareholder upon exercise of prefunded warrants (the “Prefunded Warrants”
and together with the AMPA ADSs and Prefunded Warrant ADSs, the “Purchase Notice Securities”) to purchase Ordinary Shares represented by ADSs that may be issued in lieu of ADSs, and (ii) up to 333,333 ADSs (the “Commitment Warrant ADSs”, and
together with the AMPA ADSs and the Prefunded Warrant ADSs, the “Offered ADSs”) issuable to Alumni upon the exercise of that certain unregistered commitment warrant (the “Commitment Warrant”) to purchase Ordinary Shares represented by ADSs issued
to Alumni as consideration for Alumni’s execution, delivery, and performance of the Any Market Purchase Agreement.
Under the Any Market Purchase Agreement, the Company has the right, but not the obligation, from time to time, at the Company’s
discretion subject to the terms of the Any Market Purchase Agreement, to issue and sell to Alumni, and Alumni is obligated to purchase, ADSs for an aggregate purchase price of up to USD $10 million (the “Commitment Amount”), which would represent
5,263,157 ADSs based on the closing price of the ADSs on the Nasdaq Capital Market, LLC, or Nasdaq, on June 20, 2025, of USD $1.90 per ADS. The ADSs will be issued and sold to Alumni at a per ADS price equal to, at the election of the Company as
specified in the relevant written notice from the Company to Alumni (the “Purchase Notice”), subject to the terms of the Any Market Purchase Agreement: (i) with respect the sales pursuant to the first Purchase Notice (the “Initial Purchase Notice”),
which may be for a purchase price of up to USD $1,000,000, the lowest daily volume weighted average price (“VWAP”) of the ADSs during the five (5) consecutive business days immediately prior to the date of the Purchase Notice (each such date, a
“Purchase Notice Date”) with respect to a Purchase Notice, multiplied by eighty-two (82%) (the “Initial Purchase Price”), (ii) the lowest daily VWAP of the ADSs during the five (5) consecutive business days immediately prior to the Purchase Notice
Date with respect to a Purchase Notice (a “Regular Purchase Notice”), as determined by Alumni, multiplied by ninety percent (90%) (the “Regular Purchase Price”) or (iii) the lowest traded price of the ADSs on the Purchase Notice Date with respect to
a Purchase Notice, as determined by Alumni, multiplied by ninety six percent (96%) (the “Forward Purchase Price”).
We are registering herein 5,263,157 AMPA ADSs, which would represent an aggregate purchase price of approximately USD $10 million based on the closing
price of the ADSs on the Nasdaq Capital Market, LLC, or Nasdaq, on June 20, 2025, of USD $1.90 per ADS. The purchase price in each Purchase Notice will fluctuate based on the market price of the ADSs, and the Any Market Purchase Agreement does not
provide a floor price. Accordingly, it is not possible at this stage to predict the number of ADSs that may ultimately be sold pursuant to the Any Market Purchase Agreement. Pursuant to the Any Market Purchase Agreement, in the event that we sell
all of the AMPA ADSs registered herein, we will have to file one or more new registration statements to register resale of the additional ADSs, and such additional new registration statements shall be effective before we can obligate Alumni to
purchase additional ADSs pursuant to the Any Market Purchase Agreement.
In addition, we may not affect any sales under the Any Market Purchase Agreement and Alumni shall not have any obligation to purchase
ADSs under the Any Market Purchase Agreement (i) if those ADSs, when aggregated with all other ADSs then held or beneficially owned by the Selling Shareholder and its affiliates, would result in the Selling Shareholder and its affiliates holding or
having beneficial ownership, at any single point in time, of more than 4.99% of the number of ADSs outstanding immediately after the issuance of Purchase Notice Securities issuable pursuant to a Purchase Notice, or (ii) where the issuance of such
ADSs, when aggregated with all other ADSs and Ordinary Shares then held or beneficially owned by the Selling Shareholder and its affiliates, would result in the Selling Shareholder and its affiliates holding having beneficial ownership, at any single
point in time, of more than 4.99% of the Company’s issued share capital or voting rights in it (unless and until the Company obtains the approval of its shareholders for the issuance of ADSs in excess of such amount), in either case subject to the
option to issue Prefunded Warrants in lieu of AMPA ADSs with respect to the sales pursuant to the Initial Purchase Notice or any Regular Purchase Notice.
Due to the reasons above, we may not have access to the right to sell the full USD $10 million of ADSs under the Any Market Purchase
Agreement to the Selling Shareholder. Please see “Selling Shareholder—Material Relationships with Selling Shareholder—Equity Line of Credit” for more information regarding the Any Market Purchase Agreement.
We are not selling any securities under this prospectus and will not receive any of the proceeds from the sale of the Offered ADSs by
the Selling Shareholder. We will receive the exercise price of any Commitment Warrant or Prefunded Warrants exercised by the Selling Shareholder for cash. Any proceeds received by us from the exercise of the Commitment Warrant or Prefunded Warrants
will be used for general corporate purposes. See “Plan of Distribution” for a description of the Any Market Purchase Agreement and “Selling Shareholder” for additional
information regarding the Selling Shareholder.
The Selling Shareholder is identified in the table commencing on page 19. The Selling Shareholder is an “underwriter” within the meaning
of Section 2(a)(11) of the Securities Act of 1933, as amended (the “Securities Act”), and any profits on the sales of shares of our ADSs by the Selling Shareholder and any discounts, commissions, or concessions received by the Selling Shareholder are
deemed to be underwriting discounts and commissions under the Securities Act. The Selling Shareholder will pay or assume any discounts, commissions or concessions received by them except as set forth in the Any Market Purchase Agreement The Selling
Shareholder may offer, sell or distribute all or a portion of the Offered ADSs hereby registered publicly or through private transactions at prevailing market prices or at negotiated prices. We will bear all costs, expenses and fees in connection
with the registration of these Offered ADSs, including with regard to compliance with state securities or “blue sky” laws. The timing and amount of any sale are within the sole discretion of the Selling Shareholder. Although the Selling Shareholder
is obligated to purchase our AMPA ADSs under the terms of the Any Market Purchase Agreement to the extent we choose to sell such AMPA ADSs to it (subject to certain conditions), there can be no assurances that the Selling Shareholder will sell any or
all of the AMPA ADSs purchased under the Any Market Purchase Agreement, the Commitment Warrant ADSs or the Prefunded Warrant ADSs.
This prospectus describes the general manner in which the Offered ADSs may be offered and sold by the Selling Shareholder. If necessary,
the specific manner in which the Offered ADSs may be offered and sold will be described in a supplement to this prospectus. Any such prospectus supplement may also add, update or change information in this prospectus. You should carefully read this
prospectus and any applicable prospectus supplement carefully before you invest. For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution” in this
prospectus.
The ADSs are listed on The Nasdaq Capital Market under the symbol “RDHL.” On June 24, 2025, the last reported sales price of the ADSs
was $1.94 per ADS.
We are a “foreign private issuer” as defined under the federal securities laws and, as such, are subject to reduced
public company reporting requirements. See “Prospectus Summary – Implications of Being a Foreign Private Issuer.”
Investing in the ADSs involves a high degree of risk.
Please carefully consider the risks discussed in this prospectus under “Risk Factors” beginning on page 9 and the “Risk Factors” in “Item 3: Key Information - Risk Factors” of our most recent Annual Report on Form 20-F and under similar headings in other documents incorporated by reference in this prospectus and in any applicable prospectus supplement for a discussion of the factors you should
consider carefully before deciding to purchase the ADSs.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2025
TABLE OF CONTENTS
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i
This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission (the “SEC”). As
permitted by the rules and regulations of the SEC, the registration statement filed by us includes additional information not contained in this prospectus. You may read the registration statement and the other reports we file with the SEC at the
SEC’s website or its offices described below under the heading “Where You Can Find More Information.”
The Selling Shareholder named in this prospectus may resell, from time to time, in one or more offerings, the Offered ADSs. Information
about the selling shareholder may change over time.
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to
the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as
exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below. You should read this prospectus in its entirety before making an investment decision. You should also read and
consider the information in the documents to which we have referred you in the section of the prospectus entitled “Where You Can Find More Information” and “Incorporation of
Certain Information by Reference.”
We have not, and the Selling Shareholder has not, authorized anyone to provide any information or to make any representations other than
those contained in this prospectus. We take no responsibility for and can provide no assurance as to the reliability of any other information that others may give you. This prospectus does not constitute an offer to sell, or a solicitation of an
offer to purchase, the securities offered by this prospectus in any jurisdiction to or from any person to whom or from whom it is unlawful to make such offer or solicitation of an offer in such jurisdiction. The information in this prospectus is
accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or any sale of our securities.
We further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any
document that is incorporated by reference herein were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a
representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately
representing the current state of our affairs.
For investors outside the United States: We have not done anything that would permit the sale of our securities in any jurisdiction
where action for that purpose is required, other than in the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the
securities and the distribution of this prospectus outside the United States.
Unless the context otherwise requires, all references to “RedHill,” “we,” “us,” “our,” the “Company” and similar designations refer to
RedHill Biopharma Ltd. and its wholly owned subsidiary, RedHill Biopharma Inc. The term “including” means “including but not limited to,” whether or not explicitly so stated. The term “NIS” refers to New Israeli Shekels, the lawful currency of the
State of Israel, the terms “dollar,” “USD $,” “$” or “U.S.” refer to U.S. dollars, the lawful currency of the United States of America. Our functional and presentation currency is the U.S. dollar. Foreign currency transactions in currencies other
than U.S. dollars are translated in this prospectus into U.S. dollars using exchange rates in effect at the date of the transactions.
Unless otherwise indicated or the context requires, the term “therapeutic candidates” refers to investigational drug products that are
still in development and have not been approved by the United States Food and Drug Administration (“FDA”) or other relevant regulatory authority and the term “commercial products” means products approved by the FDA that we commercialize or promote
from time to time.
Effective August 20, 2024, we effected a ratio change of the ADSs to our Ordinary Shares from the previous ratio of one (1) ADS
representing four hundred (400) Ordinary Shares to a new ratio of one (1) ADS representing ten thousand (10,000) Ordinary Shares. The ratio change had the same effect as a one-for-twenty-five reverse ADS split. Unless otherwise indicated, ADSs and
per ADS amounts in this prospectus have been retroactively adjusted to reflect the changes in ratio for all periods presented.
This prospectus includes or incorporates by reference statistical, market and industry data and forecasts which we obtained from
publicly available information and independent industry publications and reports that we believe to be reliable sources. These publicly available industry publications and reports generally state that they obtain their information from sources that
they believe to be reliable, but they do not guarantee the accuracy or completeness of the information. Although we are responsible for all of the disclosures contained in this prospectus, including such statistical, market and industry data, we
have not independently verified any of the data from third-party sources, nor have we ascertained the underlying economic assumptions relied upon therein. In addition, while we believe the market opportunity information included in this prospectus
is generally reliable and is based on reasonable assumptions, such data involves risks and uncertainties, including those discussed under the heading “Risk Factors.”
1
This prospectus and the information incorporated by reference herein contain statements that constitute forward-looking statements,
including statements concerning our industry, our operations, our anticipated financial performance and financial condition, and our business plans and growth strategy and product development efforts. These statements involve known and unknown risks,
uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. In some cases, you
can identify forward-looking statements by terms, including “anticipates,” “believes,” “could,” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,” “predicts,” “projects,” “should,” “will,” “would,” and similar expressions intended to
identify forward-looking statements. Forward-looking statements reflect our current views with respect to future events and are based on assumptions and subject to risks and uncertainties, many of which are beyond the Company’s control and cannot be
predicted or quantified. In addition, this prospectus, our Annual Report on Form 20-F for the year ended December 31, 2024, and documents incorporated by reference into this prospectus contain information
obtained from independent industry and other sources that we may not have independently validated. You should not put undue reliance on any forward-looking statements. Unless we are required to do so under U.S. federal securities laws or other
applicable laws, we do not intend to update or revise any forward-looking statements.
Factors that could cause our actual results to differ materially from those expressed or implied in such forward-looking statements
include, but are not limited to:
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the going concern reference in our financial statements and our ability to obtain additional financing or successfully conclude a strategic business transaction;
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our ability to regain and maintain compliance with the listing standards of Nasdaq;
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our ability to close strategic business transactions;
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estimates of our expenses, future revenues, capital requirements and our needs for additional financing;
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our ability to obtain additional financing;
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the commercialization and market acceptance of Talicia® and any future commercial products;
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our ability to generate sufficient revenues from Talicia® and any future commercial products, including obtaining commercial insurance and government reimbursement;
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our ability to advance our therapeutic candidates into clinical trials or to successfully complete our preclinical studies or clinical trials, and to complete the development of such
therapeutic candidates and obtain approval for marketing by the FDA or other regulatory authorities;
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our reliance on third parties to satisfactorily conduct key portions of our commercial operations, including manufacturing and other supply chain functions, market analysis services,
safety monitoring, regulatory reporting and sales data analysis and the risk that those third parties may not perform such functions satisfactorily;
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our ability to maintain an appropriate sales and marketing infrastructure;
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our ability to establish and maintain corporate collaborations;
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that Talicia® or commercial products that we may commercialize or promote in the future may be withdrawn from the market by regulatory authorities and our need to comply with continuing
laws, regulations and guidelines to maintain clearances and approvals for those products;
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our exposure to significant drug product liability claims;
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the initiation and completion of any postmarketing studies or trials;
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our ability to acquire products approved for marketing in the U.S. that achieve commercial success and to maintain our own marketing and commercialization capabilities;
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our estimates of the markets, their size, characteristics and their potential for Talicia® and any future commercial products and therapeutic candidates and our ability to serve those
markets;
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the successful commercialization of products we in-license or acquire;
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our inability to enforce claims relating to a breach of a representation and warranty by a counterparty;
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the hiring and continued employment of executives, sales personnel, and contractors;
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our receipt and timing of regulatory clarity and approvals for Talicia® and any future commercial products and therapeutic candidates, and the timing of other regulatory filings and
approvals;
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the initiation, timing, progress, and results of our research, development, manufacturing, preclinical studies, clinical trials, and other commercial efforts and therapeutic candidate
development, as well as the extent and number of additional studies that we may be required to conduct;
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our ability to advance our therapeutic candidates into clinical trials or to successfully complete our preclinical studies or clinical trials;
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our ability to develop or obtain approval for RHB-104/RHB-204 in Crohn’s may be adversely impacted if a validated lab test for MAP will not become available;
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our reliance on third parties to conduct key portions of our clinical trials, including data management services and the risk that those third parties may not perform such functions
satisfactorily;
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our reliance on third parties to manufacture and supply our therapeutic candidates and their respective active pharmaceutical ingredients with the requisite quality and manufacturing
standards in sufficient quantities and within the required timeframes and at an acceptable cost;
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the research, manufacturing, clinical development, commercialization, and market acceptance of our therapeutic candidates;
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the interpretation of the properties and characteristics of Talicia® and any future commercial products or therapeutic candidates and of the results obtained in research, preclinical
studies or clinical trials;
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the implementation of our business model, strategic plans for our business, commercial products, and therapeutic candidates;
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the impact of other companies and technologies that compete with us within our industry;
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the scope of protection we are able to establish and maintain for intellectual property rights covering Talicia® and any future commercial products and therapeutic candidates, including
from existing or future claims of infringement, and our ability to operate our business without infringing or violating the intellectual property rights of others;
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parties from whom we license or acquire our intellectual property defaulting in their obligations toward us;
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the failure by a licensor or a partner of ours to meet their respective obligations under our acquisition, in-license or other development or commercialization agreements or renegotiate
the obligations under such agreements, or if other events occur that are not within our control, such as bankruptcy of a licensor or a partner;
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our reliance on the actions of third parties, including sublicensors and their other sublicensees, to maintain our rights under our in-licenses which are sublicenses;
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the effect of a potential occurrence of patients suffering serious adverse events using investigative drugs under our Expanded Access Program;
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our ability to implement network systems and controls that are effective at preventing cyber-attacks, malware intrusions, malicious viruses and ransomware threats;
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the impact on our business of the political and security situation in Israel, the U.S. and other places in which we operate; and
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other factors discussed in other factors disclosed in this prospectus and in the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2024.
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Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures or
investments we may make. No forward-looking statement is a guarantee of future performance. You should read this prospectus, the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2024 and in any document incorporated by
reference herein completely and with the understanding that our actual future results may be materially different from what we expect. The forward-looking statements in this prospectus represent our views as of the date of this prospectus. We
anticipate that subsequent events and developments will cause our views to change. However, while we may elect to update these forward-looking statements at some point in the future, we have no current intention of doing so except to the extent
required by applicable law. You should, therefore, not rely on these forward-looking statements as representing our views as of any date subsequent to the date of this prospectus.
4
This summary highlights information contained in other parts of this prospectus or incorporated by reference
into this prospectus from our filings with the SEC, listed in the section of the prospectus entitled “Incorporation of Certain Information by Reference.” Because it is only a summary, it does not contain all of the information that you should
consider before purchasing our securities in this offering and it is qualified in its entirety by, and should be read in conjunction with, the more detailed information appearing elsewhere or incorporated by reference into this prospectus.
You should read the entire prospectus, the registration statement of which this prospectus is a part, and the information incorporated by reference herein in their entirety, including the “Risk Factors” and our financial statements and the
related notes incorporated by reference into this prospectus, before making an investment decision. Some of the statements in this prospectus and the documents incorporated by reference herein constitute forward-looking statements that
involve risks and uncertainties. See information set forth under the section “Cautionary Note Regarding Forward-Looking Statements.”
Overview
We are a specialty biopharmaceutical company, primarily focused on GI, infectious diseases and oncology. Our primary goal is to
become a leading specialty biopharmaceutical company.
We are currently focused primarily on the advancement of our development pipeline of clinical-stage therapeutic candidates. We
also commercialize in the U.S. our GI-related product, Talicia® (omeprazole, amoxicillin, and rifabutin), and continue to explore our strategic plans for other potential products and activities.
Among our therapeutic candidates, we are exploring opaganib as a potential treatment for various conditions, including GI-ARS,
viral infections such as COVID-19, Ebola virus disease and additional viruses as part of pandemic preparedness, several cancers and diabetes and obesity-related disorders. Furthermore, we are investigating RHB-107 (upamostat) as a potential
treatment for COVID-19 and other viruses as part of pandemic preparedness, including the Ebola virus.
Our current pipeline consists of five therapeutic candidates, part of which are in late stage clinical development. We generate
our pipeline of therapeutic candidates by identifying, validating and in-licensing or acquiring products that are consistent with our product and corporate strategy and that have the potential to exhibit a favorable probability of therapeutic
and commercial success. We have one product, Talicia®, that we primarily developed internally which has been approved for marketing and, to date, none of our other therapeutic candidates has generated revenues. We have out-licensed our
commercial product, Talicia®, for specific territories outside the U.S., and one of our therapeutic candidates, RHB-102, worldwide (except for the U.S., Canada, and Mexico). Furthermore, we plan to commercialize our therapeutic candidates,
upon approval, if any, through licensing and other commercialization arrangements with pharmaceutical companies on a global and territorial basis or independently with a dedicated commercial operation or in potential partnership with other
commercial-stage companies. We also evaluate, on a case-by-case basis, co-development, co-promotion, licensing, acquisitions and similar arrangements.
Recent Events
Equity Line of Credit
On June 20, 2025, the Company entered into the Any Market Purchase Agreement with the Selling Shareholder establishing a USD
$10 million equity line of credit. Pursuant to the Any Market Purchase Agreement, the Company has the right, but not the obligation, to issue, from time to time, at the Company’s discretion, to the Selling Shareholder, and the Selling
Shareholder is obligated to purchase, ADSs for an aggregate purchase price of up to USD $10 million (the “Commitment Amount”) at the Company’s request and subject to the terms of the Any Market Purchase Agreement, any time during the
period commencing on June 20, 2025, and ending on the earlier (i) the date on which the ADSs cease trading on the NYSE, the NYSE American, The Nasdaq Capital Market, The Nasdaq Global Market, or The Nasdaq Global Select
Market (or any nationally recognized successor to any of the foregoing (an “Eligible Market), (ii) the date on which the Investor shall have purchased Purchase Notice Securities for an aggregate purchase price equal to the Commitment
Amount, or (iii) 5:00 p.m. Eastern Time on June 30, 2026.
5
In consideration for the Selling Shareholder’s execution and delivery of the Any Market Purchase Agreement, on June 20, 2025, we issued to the
Selling Shareholder the Commitment Warrant valid for a term of five years, entitling the Selling Shareholder to purchase up to 333,333 Commitment Warrant ADSs at $3.00 per ADS, subject to adjustments therein. In addition, we agreed to pay
$20,000 representing legal fees of Alumni, which shall be deducted from the proceeds of the sales made pursuant to the Any Market Purchase Agreement.
Specifically, the Initial Purchase Notice may be up to USD $1,000,000 at the purchase price equal to Initial Purchase Price.
From and after the closing of the purchase and sale of the Purchase Notice Securities pursuant to the Initial Purchase Notice, we may, at our discretion, direct the Selling Shareholder to purchase (A) the number of ADSs having an aggregate
purchase price equal to the lesser of $500,000 or sixty percent (60%) of the average daily trading volume of the ADSs on the Principal Market over the most recent five business days prior to the respective Purchase Notice Date, unless waived
upon mutual discretion between us and the Selling Shareholder, up to an amount no greater than an aggregate purchase price equal to $3,000,000, at the Regular Purchase Price, or (B) the number of ADSs having an aggregate purchase price equal
to the lesser of $500,000 or thirty percent (30%) of the trading volume of the ADSs on the Principal Market beginning at 4:00 a.m. New York time on the Purchase Notice Date and ending at the time on the Purchase Notice Date that the Purchase
Notice has been received by email by Alumni, at the Forward Purchase Price. Subject to the terms of the Any Market Purchase Agreement, we may deliver up to two Purchase Notices with the Forward Purchase Price on any given business day.
The Company cannot issue any AMPA ADSs to the Selling Shareholder until the date that the registration statement to which this
prospectus relates is declared effective by the SEC and a final prospectus in connection therewith is filed and all of the other conditions set forth in the Any Market Purchase Agreement are satisfied.
The Any Market Purchase Agreement also prohibits us from directing the Selling Shareholder to purchase any ADSs (i) if those
ADSs, when aggregated with all other ADSs then held or beneficially owned by the Selling Shareholder and its affiliates, would result in the Selling Shareholder and its affiliates holding or having beneficial ownership, at any single point in
time, of more than 4.99% of the number of ADSs outstanding immediately after the issuance of Purchase Notice Securities issuable pursuant to a Purchase Notice, or (ii) where the issuance of such ADSs, when aggregated with all other ADSs and
Ordinary Shares then held or beneficially owned by the Selling Shareholder and its affiliates, would result in the Selling Shareholder and its affiliates holding or having beneficial ownership, at any single point in time, of more than 4.99%
of the Company’s issued share capital or voting rights in it (unless and until the Company obtains the approval of its shareholders for the issuance of ADSs in excess of such amount), in either case subject to the option to issue Prefunded
Warrants in lieu of AMPA ADSs with respect to the sales pursuant to the Initial Purchase Notice or any Regular Purchase Notice.
The Any Market Purchase Agreement will automatically terminate on the earlier of (i) the date on which the ADSs cease trading on
an Eligible Market, (ii) the date on which the Investor shall have purchased Purchase Notice Securities for an aggregate purchase price equal to the Commitment Amount, or (iii) 5:00 p.m. Eastern Time on June 30, 2026. The Any Market Purchase
Agreement does not include any of the following: (i) limitations on the Company’s use of amounts it receives as the purchase price for the ADSs sold to the Selling Shareholder; (ii) financial or business covenants; (iii) restrictions on
future financings; (iv) rights of first refusal; or (v) participation rights or penalties.
The Any Market Purchase Agreement contains customary representations, warranties, conditions and indemnification obligations of
the parties. Pursuant to the Any Market Purchase Agreement, the Company also agreed to file the registration statement to which this prospectus relates with the SEC, covering the resale of the ADSs issued or sold to the Selling Shareholder
under the Any Market Purchase Agreement under the Securities Act. The Selling Shareholder has agreed that neither it nor any of its affiliates will engage in any short-selling or hedging of the ADSs during the term of the Any Market Purchase
Agreement.
The description of the Any Market Purchase Agreement does not purport to be complete and is qualified in its entirety by
reference to the full text of the Any Market Purchase Agreement, a copy of which is filed as an exhibit to the registration statement of which this prospectus forms a part and is incorporated herein by reference.
Nasdaq Minimum Stockholders’ Equity Requirement
On April 15, 2025, we received a written notification (the “Notification Letter”) from the Listing Qualifications Department of
Nasdaq Stock Market LLC (“Nasdaq”), notifying us that we are no longer in compliance with Nasdaq Listing Rule 5550(b)(1) (the “Minimum Stockholders’ Equity Rule”).
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The Minimum Stockholders’ Equity requires companies listed on The Nasdaq Capital Market to maintain a minimum of $2,500,000 in
stockholders' equity for continued listing. However, based on our Annual Report on Form 20-F for the fiscal year ended December 31, 2024, filed on April 10, 2025, we reported a stockholders’ deficit of $4,683,000, and we do not meet the
alternatives of market value of listed securities or net income from continuing operations. We are thus non-compliant with the Minimum Stockholders’ Equity Rule.
The Notification Letter has no immediate effect on our listing on The Nasdaq Capital Market at this time, nor are our business
operations affected by receipt of the Notification Letter. In accordance with the Nasdaq Listing Rules, we submitted to Nasdaq a plan to regain compliance. If the plan is accepted, Nasdaq can grant an extension of up to 180 calendar days from
receipt of the Notification Letter to evidence compliance.
We are looking into various options available to regain compliance and maintain our continued listing on The Nasdaq Capital
Market. There can be no assurance that our plan will be accepted or we will be able to regain compliance with the Minimum Stockholders’ Equity.
Kukbo Litigation
On September 2, 2022, we filed a lawsuit against Kukbo in the Supreme Court of the State of New York, County of New York,
Commercial Division, as a result of Kukbo’s default in delivering to us $5.0 million under a subscription agreement, dated October 25, 2021 (the “Subscription Agreement”), in exchange for the ADSs we were to issue to Kukbo, and in delivering to
us the $1.5 million due under the Exclusive License Agreement. Kukbo thereafter filed counterclaims with various allegations such as breach of contract, misrepresentation, and the breach of the duty of good faith and fair dealing. On November
20, 2023, we entered into a Contingency Fee Agreement with our legal firm, Haynes and Boone, LLP (“H&B”), under which certain legal costs related to the Kukbo litigation will be assumed by H&B. On December 2, 2024, we were awarded a
judgment of approximately $8 million, including $6.5 million in principal and approximately $1.5 million in accrued interest, plus costs, in a summary judgment by the Supreme Court of the State of New York, New York County in our legal
proceedings against Kukbo. The Court dismissed the entirety of Kukbo’s counterclaims in the case. Kukbo filed a notice of appeal and perfected its appeal on June 4, 2025. We intend to file our response to Kukbo’s appeal on or before August 6,
2025. The appeal is currently set for hearing in the Supreme Court of the State of New York, Appellate Division, First Judicial Department’s September 2025 term. We intend to vigorously pursue the recovery of attorneys’ fees and the
collection of the judgment.
License Agreement with Hyloris Pharmaceuticals
In February 2025, we entered into an exclusive worldwide development and commercialization licensing agreement, excluding North
America, with Hyloris Pharmaceuticals SA ("Hyloris") for RHB-102 (Bekinda®). Under the terms of the agreement, Hyloris will pay us an upfront payment, in addition to up to $60 million in potential milestone payments, contingent upon achieving
specified commercial targets, plus up to mid-20s percent royalties on revenues, subject to certain cost recoupments, with minimum annual payments to us, in return for exclusive rights to RHB-102 across all indications and territories outside
the United States, Canada, and Mexico. We intend to continue the development for FDA approval in the U.S, if granted, for RHB-102. Hyloris will be responsible for all development, regulatory, and commercialization activities related to RHB-102
in its territories across all indications including acute gastroenteritis and gastritis, IBS-D, and oncology support.
ATM Program with H.C. Wainwright & Co., LLC
On February 3, 2025, we entered into a sales agreement (the “Wainwright Sales Agreement”) with H.C. Wainwright & Co., LLC
(“Wainwright”), for the sale of ADSs, pursuant to which we are able to offer and sell, from time to time, ADSs through our ATM program, with Wainwright acting as our agent. Under the prospectus supplement relating to the ATM program and the
accompanying base prospectus, we are permitted to sell ADSs having an aggregate offering price of up to $3,464,000 from time to time through Wainwright, acting as our agent, in accordance with the Wainwright Sales Agreement. To date, we have
sold 890,001 ADSs at a weighted average offering price of $3.85 per ADS for aggregate net proceeds of approximately $3.3 million pursuant to the Wainwright Sales Agreement and related prospectus supplement and accompanying base prospectus.
Implications of Being a Foreign Private Issuer
We are subject to the information reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
that are applicable to “foreign private issuers,” and under those requirements we file reports with the United States Securities and Exchange Commission, or SEC. As a foreign private issuer, we are not subject to the same requirements that are
imposed upon U.S. domestic issuers by the SEC. Under the Exchange Act, we are subject to reporting obligations that, in certain respects, are less detailed and less frequent than those of U.S. domestic reporting companies. For example, although
we often report our financial results on a quarterly basis, we are not required to issue quarterly reports, proxy statements that comply with the requirements applicable to U.S. domestic reporting companies, or individual executive compensation
information that is as detailed as that required of U.S. domestic reporting companies. We also have four months after the end of each fiscal year to file our annual reports with the SEC and are not required to file current reports as frequently
or promptly as U.S. domestic reporting companies.
Furthermore, our officers, directors and principal shareholders are exempt from the requirements to report transactions in our equity securities
and from the short-swing profit liability provisions contained in Section 16 of the Exchange Act. As a foreign private issuer, we are also not subject to the requirements of Regulation FD (Fair Disclosure) promulgated under the Exchange
Act. In addition, as a foreign private issuer, we are permitted, and follow certain home country corporate governance practices instead of those otherwise required under the listing rules of Nasdaq for domestic U.S. issuers. These
exemptions and leniencies reduce the frequency and scope of information and protections available to you in comparison to those applicable to a U.S. domestic reporting company.
Corporate Information
We were incorporated as a limited liability company under the laws of the State of Israel on August 3, 2009. Our principal executive offices are
located at 21 Ha’arba’a Street, Tel-Aviv, Israel and our telephone number is +972 (3) 541-3131.
The SEC maintains an internet site that contains reports, proxy and information statements and other information regarding issuers that file
electronically with the SEC at http://www.sec.gov. Our website address is http://www.redhillbio.com. Information contained on, or that can be accessed
through, our website does not constitute a part of this prospectus. Our registered agent in the U.S. is Redhill Biopharma Inc., and the address is 8311 Brier Creek Parkway, Suite 105-161, Raleigh, NC 27617, U.S.A.
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| Ordinary Shares Currently Outstanding(1) |
22,953,451,000
|
| ADSs Offered by the Selling Shareholder |
Up to 5,596,490 ADSs representing 55,964,900,000 ordinary shares, comprised of (i) 5,263,157 ADSs that may be issued as AMPA ADSs or Prefunded Warrant ADSs,
which would represent an aggregate purchase price of approximately USD $10 million based on the closing price of the ADSs on the Nasdaq Capital Market, LLC, or Nasdaq, on June 20, 2025, of USD $1.90 per ADS, and (ii) up to
333,333 Commitment Warrant ADSs. The selling shareholder is identified in the table commencing on page 19.
|
| Use of Proceeds |
We are not selling any securities under this prospectus and will not receive any of the proceeds from the sale of the Offered ADSs by the Selling Shareholder. We will receive the
exercise price of any Commitment Warrant or Prefunded Warrants exercised by the Selling Shareholder for cash. Any proceeds received by us from the exercise of the Commitment Warrant or Prefunded Warrants will be used for general
corporate purposes. For more information on the use of proceeds, see “Use of Proceeds”.
|
| Risk Factors |
Investing in the ADSs involves a high degree of risk. See “Risk Factors” beginning on page 9 and other information included and
incorporated by reference in this prospectus fora discussion of factors that you should carefully considerbefore deciding to invest in our securities.
|
| Nasdaq Listing |
The ADSs are listed on The Nasdaq Capital Market under the symbol “RDHL.”
|
(1) ) The number of ordinary shares outstanding is based on 22,953,451,000 Ordinary Shares as of June 24, 2025. As of June 24, 2025, we had
outstanding (i) 25,380,000 Ordinary Shares issuable upon the exercise of outstanding options to purchase Ordinary Shares at a weighted average exercise price of $0.63 per share (equivalent to 2,538 ADSs at a weighted average exercise price of
$6,305.93 per ADS), (ii) 8,082,160,000 Ordinary Shares issuable upon the exercise of outstanding warrants to purchase Ordinary Shares at a weighted average exercise price of $0.002 per share (equivalent to 808,216 ADSs at a weighted average
exercise price of $19.78 per ADS), (iii) 123,322 outstanding Restricted Share Units (“RSUs”), each RSU representing one ADS.
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Any investment in our securities involves a high degree of risk. You should carefully consider the risks described
below and in “Item 3. Key Information—D. Risk factors” in our Annual Report on Form 20-F for the year ended December 31, 2024, incorporated by reference herein, and all of the information included or incorporated by reference in this prospectus
before deciding whether to purchase our securities. The risks and uncertainties described below or incorporated by reference in this prospectus are not the only risks and uncertainties we face. Additional risks and uncertainties not presently known
to us or that we currently deem immaterial may also impair our business operations. If any of the events or circumstances described in the following risk factors actually occur, our business, financial condition and results of operations would
suffer. In that event, the price of our Ordinary Shares could decline, and you may lose all or part of your investment. The risks discussed below also include forward-looking statements and our actual results may differ substantially from those
discussed in these forward-looking statements. See “Cautionary Statement Regarding Forward-Looking Statements.”
Risks Related to this Offering
It is not possible to predict the actual number of shares we will sell under the Any Market Purchase Agreement to
the Selling Shareholder, or the actual gross proceeds resulting from those sales.
On June 20, 2025, we entered into the Any Market Purchase Agreement with the Selling Shareholder, pursuant to which the Selling
Shareholder has committed to purchase ADSs for an aggregate purchase price of up to USD $10 million, subject to certain limitations and conditions set forth in the Any Market Purchase Agreement. The ADS that may be issued under the Any Market
Purchase Agreement may be sold by us to the Selling Shareholder at our discretion from time to time following the Commencement Date.
We generally have the right to control the timing and amount of any sales of our ADSs to the Selling Shareholder under the Any Market
Purchase Agreement. Sales of our ADSs, if any, to the Selling Shareholder under the Any Market Purchase Agreement will depend upon market conditions and other factors. We may ultimately decide to sell to the Selling Shareholder all, some or none of
the ADSs that may be available for us to sell to the Selling Shareholder pursuant to the Any Market Purchase Agreement.
Because the purchase price per ADS to be paid by the Selling Shareholder for the ADSs that we may elect to sell to the Selling
Shareholder under the Any Market Purchase Agreement, if any, will fluctuate based on the market prices of our ADSs during the applicable pricing period for each purchase made pursuant to the Any Market Purchase Agreement, if any, it is not possible
for us to predict, as of the date of this prospectus and prior to any such sales, the number of ADSs that we will sell to the Selling Shareholder under the Any Market Purchase Agreement, the purchase price per ADS that the Selling Shareholder will
pay for ADSs purchased from us under the Any Market Purchase Agreement, or the aggregate gross proceeds that we will receive from those purchases by the Selling Shareholder under the Any Market Purchase Agreement, if any.
Limitations in the Any Market Purchase Agreement, including a beneficial ownership limitation for the Selling Shareholder, and our
ability to meet the conditions necessary to register resale of the ADSs to be sold under the Any Market Purchase Agreement, deliver a purchase notice, could prevent us from being able to raise funds up to the Commitment Amount.
Moreover, although the Any Market Purchase Agreement provides that we may sell ADSs for an aggregate purchase price of up to an
aggregate of USD $10 million to the Selling Shareholder, only 5,263,157 AMPA ADSs are being registered for resale by the Selling Shareholder under the registration statement that includes this prospectus, consisting of the AMPA ADSs that we may elect
to sell to the Selling Shareholder, in our sole discretion, from time to time, subject to the restrictions and satisfaction of the conditions in the Any Market Purchase Agreement, through sales under the Any Market Purchase Agreement. Even if we
elect to sell to the Selling Shareholder all of the AMPA ADSs being registered for resale under this prospectus, depending on the market prices of our ADSs at the time of such sales, the actual gross proceeds from the sale of all such shares may be
substantially less than the USD $10 million Commitment Amount under the Any Market Purchase Agreement, which could materially adversely affect our liquidity.
9
If we desire to issue and sell to the Selling Shareholder under the Any Market Purchase Agreement more than the number of AMPA ADSs
being registered for resale under this prospectus, and the beneficial ownership limitation and other limitations in the Any Market Purchase Agreement would allow us to do so, we would need to file with the SEC one or more additional registration
statements to register under the Securities Act the resale by the Selling Shareholder of any such additional ADSs and the SEC would have to declare such registration statement or statements effective before we could sell additional ADSs.
Any issuance and sale by us under the Any Market Purchase Agreement of a substantial amount of ADSs in addition to the ADSs being
registered for resale by the Selling Shareholder under this prospectus could cause additional substantial dilution to our shareholders. The number of our ADSs ultimately offered for sale by the Selling Shareholder is dependent upon the ADSs, if any,
we ultimately sell to the Selling Shareholder under the Any Market Purchase Agreement.
The resale by the Selling Shareholder of a significant amount of shares registered for resale in this offering at any given time, or the
perception that these sales may occur, could cause the market price of our ADSs to decline and to be highly volatile.
Investors who buy shares at different times will likely pay different prices.
Pursuant to the Any Market Purchase Agreement, we will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold to
the Selling Shareholder. If and when we do elect to sell ADSs to the Selling Shareholder pursuant to the Any Market Purchase Agreement, the Selling Shareholder may resell all, some or none of such ADSs at any time or from time to time in its
discretion and at different prices. As a result, investors who purchase ADSs from the Selling Shareholder in this offering at different times will likely pay different prices for those ADSs, and so may experience different levels of dilution and in
some cases substantial dilution and different outcomes in their investment results. Investors may experience a decline in the value of the ADSs they purchase from the Selling Shareholder in this offering as a result of future sales made by us to
the Selling Shareholder at prices lower than the prices such investors paid for their ADSs in this offering.
We may require additional financing to sustain our operations and without it we will not be able to continue
operations.
The extent to which we rely on the Selling Shareholder as a source of funding will depend on a number of factors, including the prevailing market price of
our ADSs, our ability to meet the conditions necessary to sell Purchase Notice ADSs under the Any Market Purchase Agreement, the impacts of the ownership limitations set forth in the Any Market Purchase Agreement and the extent to which we are able
to secure funding from other sources. Regardless of the amount of funds we ultimately raise under the Any Market Purchase Agreement, if any, we may seek other sources of funding. Even if we were to sell to the Selling Shareholder the total
Commitment Amount under the Any Market Purchase Agreement, we may need additional capital to fully implement our business plan.
Sales and issuances of our ADSs or other securities might result in significant dilution and could cause the price
of our ADSs to decline.
We are registering for resale an aggregate of 5,596,490 ADSs by the Selling Shareholder. Sales of substantial amounts of our ADSs in the public
market, or the perception that such sales might occur, could adversely affect the market price of ADSs, and the market value of our other securities. We cannot predict if and when the Selling Shareholder may sell such ADSs in the public
markets. Pursuant to the Any Market Purchase Agreement, we may issue and sell Purchase Notice Securities for an aggregate purchase price of up to USD $10 million to Alumni. The timing, frequency, and the price at which we issue the Purchase
Notice Securities are subject to market prices and management’s decision to sell the ADSs, if at all.
In particular, as a result of the Any Market Purchase Agreement, Alumni is an “underwriter” as such term is defined in Section 2(a)(11) of Securities Act, and the Any Market
Purchase Agreement contemplates that Alumni expects to resell the Offered ADSs we may issue and sell pursuant thereto. Upon effectiveness of this registration statement, Alumni may resell all, some or none of their ADSs beneficially owned by
them from time to time in their discretion and at different prices, subject to the terms of the Any Market Purchase Agreement. Furthermore, we expect that, because there will be a large number of shares registered, Alumni will continue to offer
such covered securities for a significant period of time, the precise duration of which cannot be predicted. As a result, investors may experience different levels of dilution (and in some cases substantial dilution) and different outcomes in
their investment results. Investors may experience a decline in the value of the shares they purchase as a result of future issuances by the Company, whether to Alumni or others at prices lower than the prices such investors paid for their
shares. In addition, if we issue a substantial number of shares to such parties, or if investors expect that we will do so, the actual sales of shares or the mere existence of the Any Market Purchase Agreement may adversely affect the price of
the ADSs or make it more difficult for us to sell equity or equity-related securities in the future at a desirable time and price, or at all.
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To raise capital, we may sell ADSs, ordinary shares, convertible securities or other equity securities in one or more transactions
other than those contemplated by the Any Market Purchase Agreement, at prices and in a manner we determine from time to time. We may sell shares or other securities in any other offering at a price per share that is less than the price per share
paid by investors in this offering, and investors purchasing shares or other securities in the future could have rights superior to existing shareholders. The price per share at which we sell additional ADSs, or securities convertible or
exchangeable into ADSs, in future transactions may be higher or lower than the price per share paid by investors in this offering. Any sales of additional shares may dilute our shareholders.
Sales of a substantial number of ADSs in the public market or the perception that these sales might occur could depress the market
price of our ADSs and could impair our ability to raise capital through the sale of additional equity securities. We are unable to predict the effect that sales may have on the prevailing market price of our ADSs. In addition, the sale of
substantial numbers of our ADSs could adversely impact their price.
Risks Related to the ADSs
Our failure to regain and maintain compliance with Nasdaq’s continued listing requirements could result in the
delisting of the ADSs.
The ADSs are currently listed for trading on Nasdaq. We must satisfy Nasdaq’s continued listing requirements, including, among other
things, a minimum bid price requirement of $1.00 per ADS and a minimum shareholders’ equity of $2.5 million, or risk delisting, which would have a material adverse effect on our business.
On April 15, 2025, we received the Notification Letter from the Listing Qualifications Department of Nasdaq, notifying us that we are no
longer in compliance with Nasdaq Listing Rule 5550(b)(1). The Minimum Stockholders’ Equity Rule requires companies listed on The Nasdaq Capital Market to maintain a minimum of $2,500,000 in stockholders' equity for continued listing. However, based
on our Annual Report on Form 20-F for the fiscal year ended December 31, 2024, filed on April 10, 2025, we reported a stockholders’ deficit of $4,683,000 and do not meet the alternatives of market value of listed securities or net income from
continuing operations, and we are thus non-compliant with the Minimum Stockholders’ Equity Rule. We have submitted to Nasdaq a plan to regain compliance. However, there can be no assurance that our plan will be accepted or that we will be able to
regain compliance with the Minimum Stockholders’ Equity Rule.
Previously, on March 11, 2024, we received a letter from Nasdaq indicating that for the thirty consecutive business days prior to March
11, 2024, the bid price for the ADSs had closed below the minimum $1.00 per ADS requirement for continued listing on Nasdaq under Nasdaq Listing Rule 5450(a)(1). In accordance with Nasdaq Listing Rule 5810(c)(3)(A), we were provided an initial period
of 180 calendar days, or until September 9, 2024, to regain compliance.
On August 20, 2024, we implemented a ratio change of the ADSs to the Company’s non-traded Ordinary Shares from the previous ratio of one
(1) ADS representing four hundred (400) Ordinary Shares to a new ratio of one (1) ADS representing ten thousand (10,000) Ordinary Shares. For ADS holders, the ratio change had the same effect as a one-for-25 reverse ADS split. On September 3, 2024,
we regained compliance with the minimum bid price requirement under Nasdaq Listing Rule 5550(a)(2) for continued listing on The Nasdaq Capital Market.
However, we may fail to maintain long-term compliance with such minimum bid price requirement and there is no assurance we would be able
to successfully implement another ratio change. Moreover, we previously implemented two ratio changes of the ADSs to the Company’s non-traded Ordinary Shares prior to receiving the letter from Nasdaq in March 2024. If we again fail to comply with
such minimum bid price requirement, we may not be able to again implement a ratio change in compliance with applicable Nasdaq rules in the near term. In the event we are able to implement a ratio change, such ratio change could have the effect of
causing us to not comply with other listing requirements of Nasdaq, such as the listing requirements related to publicly held shares.
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Additionally, in the recent past, we did not meet the continued listing requirement for market value of publicly held shares (“MVPHS”),
and only regained compliance with such requirement by transferring the listing of the ADSs to Nasdaq from the Nasdaq Global Market in November 2023. No assurance can be given that the price of the ADSs will not again be in violation of Nasdaq’s
minimum bid price requirement or the MVPHS requirement in the future.
Our failure to meet these requirements may result in our securities being delisted from Nasdaq. A delisting could substantially decrease
trading in the ADSs, adversely affect the market liquidity of the ADSs as a result of the loss of market efficiencies associated with Nasdaq and the loss of federal preemption of state securities laws, adversely affect our ability to obtain financing
on acceptable terms, if at all, and may result in the potential loss of confidence by investors, suppliers, customers and employees and fewer business development opportunities. Additionally, the market price of the ADSs may decline further and
shareholders may lose some or all of their investment.
U.S. holders of ADSs may suffer adverse tax consequences if we were characterized as a passive foreign investment
company.
Based on the current composition of our gross income and assets and on reasonable assumptions and projections no assurance can be
given that we will not be treated as a passive foreign investment company (a “PFIC”), for U.S. federal income tax purposes for 2025. If we were characterized as a PFIC, U.S. holders of the ADSs may suffer adverse tax consequences such as (i)
having gains realized on the sale of the ADSs treated as ordinary income rather than capital gain, not qualifying for the preferential rate otherwise applicable to dividends received in respect of the ADSs by individuals who are U.S. holders, and
(ii) having interest charges apply to certain distributions by us and upon certain sales of the ADSs.
Risks Related to Our Business
We face risks associated with the lawsuit we initiated against Kukbo. Even if we prevail in the lawsuit against
Kukbo, we may need to enforce the judgment in South Korea if Kukbo does not promptly pay the judgment.
On September 2, 2022, we filed a lawsuit against Kukbo Co. Ltd. (“Kukbo”) in the Supreme Court of the State of New York, County of New
York, Commercial Division, as a result of Kukbo’s default in delivering to us $5.0 million under the Subscription Agreement (as defined herein), in exchange for the ADSs we were to issue to Kukbo, and in delivering to us the further payment of $1.5
million due under the Exclusive License Agreement. Kukbo thereafter filed counterclaims alleging breach of contract, misrepresentation, and the breach of the duty of good faith and fair dealing. On December 2, 2024, we were awarded a judgment of
approximately $6.5 million in principal and approximately $1.5 million in accrued interest as of the date of the judgment, which interest continues to accrue at a rate of 9% per annum, in a summary judgment by the Supreme Court of the State of New
York. In addition, in accordance with the court's ruling that we are entitled to recover attorneys’ fees, we filed a motion seeking recovery of approximately $1.8 million in legal fees as of December 31, 2024. The court dismissed the entirety of
Kukbo’s counterclaims in the case. Kukbo filed a notice of appeal and perfected its appeal on June 4, 2025. We intend to file our response to Kukbo’s appeal on or before August 6, 2025. The appeal is currently set for hearing in the Supreme Court
of the State of New York, Appellate Division, First Judicial Department’s September 2025 term.
We are party to a contingency fee agreement with our legal counsel, Haynes and Boone, LLP, entered into on November 20, 2023, as amended
on December 29, 2024. Under this agreement, such firm is entitled to a double-digit percentage of any gross recovery, if and only if the case ends in a final favorable outcome not subject to further appeal. If no collection is made within six months
of such an outcome, we are required to pay such firm its standard hourly fees incurred since entering the agreement—approximately $1.1 million as of December 31, 2024—and must pay the full contingency amount if collection occurs later.
We intend to vigorously pursue the recovery of attorneys’ fees and the collection of the judgment. Due to the uncertainties of
litigation, we can give no assurance that we will ultimately prevail on appeal or succeed in collecting any or all of the amounts awarded to us. If we do not prevail, we will not owe any legal fees under the contingency arrangement; however, if we
prevail but are unable to collect in a timely manner, we still may be required to pay the legal fees described above even if we do not receive any recovery. In addition, we may have to pay associated damages and related expenses and legal fees if
Kukbo receives a favorable appeal on the judgment (if an appeal is filed). The lawsuit against Kukbo may additionally divert management’s attention and resources in preparing for any continued litigation and defending our claim, result in disruptions
to our business, and require us to pay legal fees, damages, or associated expenses, all of which could adversely affect our ability to conduct our business.
12
We conduct some of our operations in Israel. Conditions in Israel, including the recent attack by Hamas and other
terrorist organizations from the Gaza Strip and Israel’s war against them, may affect our operations.
Because we are incorporated under the laws of the State of Israel and some of our operations are conducted in Israel, our business and
operations are directly affected by economic, political, geopolitical and military conditions in Israel. Since the establishment of the State of Israel in 1948, a number of armed conflicts have occurred between Israel and its neighboring countries
and terrorist organizations active in the region. These conflicts have involved missile strikes, hostile infiltrations and terrorism against civilian targets in various parts of Israel, which have negatively affected business conditions in Israel.
In addition, Israel faces many threats from more distant neighbors, in particular, Iran. Parties with whom we do business have sometimes
declined to travel to Israel during periods of heightened unrest or tension, forcing us to make alternative arrangements when necessary. In addition, the political and security situation in Israel may result in parties with whom we have agreements
involving performance in Israel claiming that they are not obligated to perform their commitments under those agreements pursuant to force majeure provisions in such agreements. Any hostilities involving Israel or the interruption or curtailment of
trade within Israel or between Israel and its trading partners could adversely affect our operations or results of operations and could make it more difficult for us to raise capital.
In October 2023, Hamas terrorists infiltrated Israel’s southern border from the Gaza Strip and conducted a series of attacks on civilian
and military targets. Hamas also launched extensive rocket attacks on Israeli population and industrial centers located along Israel’s border with the Gaza Strip and in other areas within the State of Israel. These attacks resulted in extensive
deaths, injuries and kidnapping of civilians and soldiers. Following the attack, Israel’s security cabinet declared war against Hamas and a military campaign against these terrorist organizations commenced in parallel to their continued rocket and
terror attacks. In addition, since the commencement of these events, there have been continued hostilities along Israel’s northern border with Lebanon (with the Hezbollah terror organization) and on other fronts from various extremist groups in the
region, such as the Houthis in Yemen and various rebel militia groups in Syria and Iraq. In October 2024, Israel began limited ground operations against Hezbollah in Lebanon, and in November 2024, a ceasefire was brokered between Israel and
Hezbollah. In addition, in April 2024 and October 2024, Iran (in concert with other regional actors) launched direct attacks on Israel involving hundreds of drones and missiles and has threatened to continue to attack Israel and is widely believed to
be developing nuclear weapons. Such attacks may continue due to continuing tensions in the region. In addition, the collapse of the Assad regime in Syria in December 2024 has led to increased instability in the region. Additionally, Yemeni rebel
group, the Houthis, launched a series of attacks on global shipping routes in the Red Sea, causing disruptions of supply chain. On June 12, 2025, Israel conducted a series of air strikes in Iran targeting Iran’s nuclear program and leadership. In the
following days, this conflict escalated. On June 21, 2025, U.S. President Donald Trump announced that the United States had conducted air strikes against three nuclear sites within Iran. Any or all of these situations may potentially escalate in the
future to more violent events which may affect Israel and us.
Although we currently do not expect the ongoing conflict to affect our customers, manufacturing, research and development, supply chain,
commercialization activities and current clinical studies, which are all located in and/or take place outside of Israel, there can be no assurances that further unforeseen events will not have a material adverse effect on us or our operations in the
future.
The Israel Defense Force (the “IDF”), the national military of Israel, is a conscripted military service, subject to certain exceptions.
Following the October 7, 2023 attacks, the IDF called up more than 350,000 of its reserve forces to serve. One member of management is currently subject to military service in the IDF and has been called to serve. It is possible that there will be
further military reserve duty call-ups in the future, which may affect our business due to a shortage of skilled labor and loss of institutional knowledge, and necessary mitigation measures we may take to respond to a decrease in labor availability,
such as overtime and third-party outsourcing, for example, may have unintended negative effects and adversely impact our results of operations, liquidity or cash flows.
13
Additionally, five members of our management team and eight of our non-management employees reside in Israel. Shelter-in-place and
work-from-home measures, government-imposed restrictions on movement and travel and other precautions taken to address the ongoing conflict may temporarily disrupt our management and employees’ ability to effectively perform their daily tasks.
It is currently not possible to predict the duration or severity of the ongoing conflict or its effects on our business, operations and
financial conditions. The ongoing conflict is rapidly evolving and developing, and could disrupt our business and operations, interrupt our sources and availability of supply and hamper our ability to raise additional funds or sell our securities,
among others.
Our commercial insurance does not cover losses that may occur as a result of events associated with the security situation in the Middle
East. The Israeli government is currently committed to cover the reinstatement value of direct damages that are caused by terrorist attacks or acts of war. However, there is no assurance that this government coverage will be maintained, or if
maintained, will be sufficient to compensate us fully for damages incurred. Any losses or damages incurred by us could have a material adverse effect on our business.
Several countries, principally in the Middle East, restrict doing business with Israel and Israeli companies, and additional countries
may impose restrictions on doing business with Israel and Israeli companies. In addition, there have been increased efforts by activists to cause companies and consumers to boycott Israeli goods based on Israeli government policies. Such business
restrictions and boycotts, particularly if they become more widespread, may materially and adversely impact our business.
Furthermore, prior to the attacks by Hamas and Iran, the Israeli government was pursuing extensive changes to Israel’s judicial system.
This led to protests at various levels domestically, and investment banks and other investors have voiced concerns that the proposed changes may negatively impact the business environment in Israel. This may, in turn, could slow the flow of
international investment and negatively affect our business, financial condition and prospects.
14
We report under International Financial Reporting Standards as issued by the International Accounting Standards Board and
Interpretations. None of the consolidated financial statements were prepared in accordance with generally accepted accounting principles in the United States.
The term “NIS” refers to New Israeli Shekels, the lawful currency of the State of Israel, the terms “dollar,” “USD $,” “$” or “U.S.”
refer to U.S. dollars, the lawful currency of the United States of America. Our functional and presentation currency is the U.S. dollar. Foreign currency transactions in currencies other than U.S. dollars are translated in this prospectus into U.S.
dollars using exchange rates in effect at the date of the transactions.
We have made rounding adjustments to some of the figures included in this prospectus. Accordingly, numerical figures shown as totals in
some tables may not be an arithmetic aggregation of the figures that preceded them.
15
All of the ADSs offered by the Selling Shareholder pursuant to this prospectus will be sold by the Selling Shareholder for its account.
We will not receive any proceeds from the sale of the Offered ADSs by the Selling Shareholder. All net proceeds from the sale of the ADSs covered by this prospectus will go to the Selling Shareholder. We expect that the Selling Shareholder will sell
its ADSs as described under “Plan of Distribution.”
We are not selling any securities under this prospectus and will not receive any of the proceeds from the sale of the Offered ADSs by
the Selling Shareholder. We will receive the exercise price of any Commitment Warrant or Prefunded Warrants exercised by the Selling Shareholder for cash. Any proceeds received by us from the exercise of the Commitment Warrant or Prefunded Warrants
will be used for general corporate purposes.
We have never declared or paid cash dividends to our shareholders. Currently, we do not intend to pay cash dividends on our equity
securities in the foreseeable future and intend to retain all available funds and any future earnings for use in the operation and expansion of our business. We currently intend to reinvest any future earnings, if any, in developing and expanding our
business. Any future determination relating to our dividend policy will be at the discretion of our board of directors and will depend on a number of factors, including future earnings, if any, our financial condition, operating results, contractual
restrictions, capital requirements, business prospects, applicable Israeli law and other factors our board of directors may deem relevant. If we pay any dividends on our ordinary shares, we will pay those dividends, which shall be payable in respect
of the ordinary shares underlying the ADSs, to the Depositary, as the registered holder of such ordinary shares, and the Depositary then will pay such amounts to the ADS holders in proportion to the ordinary shares underlying the ADSs held by such
ADS holders, subject to the terms of the Deposit Agreement, including the fees and expenses payable thereunder. See the section entitled “Description of American Depositary Shares” in this prospectus.
16
The table below sets forth our cash and cash equivalents and our total capitalization (defined as total debt and shareholders’ equity)
as of December 31, 2024:
| • |
on an actual basis;
|
| • |
on a pro forma basis to reflect (i) the issuance of 890,001 of the ADSs at a weighted average offering price of $3.85 per ADS for an aggregate of $3.3 million in net proceeds pursuant the
Wainwright Sales Agreement and (ii) the issuance of 85,778 ADSs to warrant holders that exercised their existing warrants for cash, on May 14, 2025, at an exercise price of $1.50 per ADS, reduced from a prior exercise price of $18.75 per ADS
(together, the “Pro Forma Adjustments”); and
|
| • |
on a pro forma as adjusted basis, to give effect to (i) the issuance and sale of 5,263,157 ADSs representing 52,631,570,000 Ordinary Shares, as AMPA ADSs, at
an assumed offering price of $1.90 per ADS, which is the last reported sales price of our ADSs on the Nasdaq on June 20, 2025, assuming the equity line of credit will be utilized by us and after deducting the estimated offering
expenses by us and no issuance of any Prefunded Warrants, and (ii) the issuance of the Commitment Warrants and no exercise of the Commitment Warrants
|
The pro forma and pro forma as adjusted data included in the table below is unaudited. Investors should read this table in conjunction
with our audited consolidated financial statements and related notes as of and for the year ended December 31, 2024 and management’s discussion and analysis thereon, each as incorporated by reference into this prospectus, as well as “Use of Proceeds” in this prospectus.
The pro forma as adjusted information below is illustrative only and our capitalization following the completion of this offering is
subject to adjustment based on the actual public offering price of our securities and other terms of this offering determined at pricing. You should read this capitalization table in conjunction with “Use of Proceeds,”
and our financial statements and the related notes thereto appearing elsewhere in this prospectus or incorporated by reference herein.
|
|
|
As of December 31, 2024
|
|
|||||||||
|
|
|
Actual
|
|
|
Pro Forma
|
|
|
Pro Forma As Adjusted
|
|
|||
|
|
|
(in thousands)
|
|
|||||||||
|
Total debt (1)
|
|
$
|
22,726
|
|
|
$
|
22,335
|
|
|
$
|
22,335
|
|
|
Ordinary shares, par value NIS 0.01 per share
|
|
|
35,036
|
|
|
|
61,997
|
|
|
|
213,020
|
|
|
Additional paid-in capital
|
|
|
375,082
|
|
|
|
351,710
|
|
|
|
210,137
|
|
|
Warrants
|
|
|
—
|
|
|
|
—
|
|
|
|
492
|
|
|
Accumulated deficit
|
|
$
|
(414,801
|
)
|
|
$
|
(414,551
|
)
|
|
$
|
(414,672
|
)
|
|
Total shareholders’ equity
|
|
|
(4,683
|
)
|
|
|
(844
|
)
|
|
|
8,977
|
|
|
Total capitalization and indebtedness
|
|
$
|
18,043
|
|
|
$
|
21,491
|
|
|
$
|
31,312
|
|
| (1) |
Includes $22.2 million reported as current liabilities, which mainly consist of allowance for deductions from revenue, accrued expenses, accounts payable and derivative financial
instruments, and $0.5 million reported as non-current liabilities, which consist mainly of royalty obligations. The warrants granted in (i) the underwritten offering consummated in December 2022, (ii) the registered direct offering
consummated in January 2024, and (iii) the registered direct offering consummated in April 2024 were classified as a financial liability due to a net settlement provision. Therefore, some of the proceeds of the issuances were classified as
derivative financial instruments and increased the total debt accordingly.
|
As of December 31, 2024, prior to giving effect to this offering, we had outstanding (i) 26,190,400 Ordinary Shares issuable upon the
exercise of outstanding options to purchase Ordinary Shares at a weighted average exercise price of $0.63 per share (equivalent to 2,619 ADSs at a weighted average exercise price of $6,329.96 per ADS), (ii) 5,606,626,800 Ordinary Shares issuable upon
the exercise of outstanding warrants to purchase Ordinary Shares at a weighted average exercise price of $0.003 per share (equivalent to 560,662 ADSs at a weighted average exercise price of $29.60 per ADS), and (iii) 37,766 outstanding RSUs, each RSU
representing one ADS.
Unless otherwise stated, outstanding share information throughout this prospectus excludes such outstanding securities and assumes no
exercise of the outstanding options or warrants or vesting or settlement of the outstanding RSUs, as applicable, described above.
17
This prospectus relates to resale from time to time by the selling shareholder identified in this prospectus (the “Selling Shareholder”), of up to
5,596,490 ADSs, each ADS representing ten thousand (10,000) Ordinary Shares, that may be issued by us to Alumni pursuant to the Any Market Purchase Agreement, establishing an equity line of credit. Such ADSs include (i) up to 5,263,157 AMPA ADSs
that may be issued by the Company in connection with the Any Market Purchase Agreement, from time to time after the date of this prospectus, upon the terms and subject to the conditions in the Any Market Purchase Agreement, which may include up
to 5,263,157 ADSs (the “Prefunded Warrant ADSs”) issuable to the Selling Shareholder upon exercise of Prefunded Warrants to purchase Ordinary Shares represented by ADSs that may be issued in lieu of ADSs, and (ii) up to 333,333 Commitment
Warrant ADSs issuable to Alumni upon exercise of that certain unregistered Commitment Warrant issued to Alumni as consideration for Alumni’s execution, delivery, and performance of the Any Market Purchase Agreement. We are registering the ADSs
pursuant to the provisions of the Any Market Purchase Agreement we entered into with the Selling Shareholder on June 20, 2025, in order to permit it to offer the shares for resale from time to time. Except for the transactions contemplated by the
Any Market Purchase Agreement or as otherwise disclosed in this prospectus, the Selling Shareholder has not had any material relationship with us within the past three years.
The Selling Shareholder is an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act. Any underwriters,
broker-dealers or agents that participate in the sale of the ADSs or interests therein may be “underwriters” within the meaning of Section 2(a)(11) of the Securities Act.
The table below lists the Selling Shareholder and other information regarding the beneficial ownership of the of ADSs by the Selling
Shareholder. The percent of beneficial ownership for the Selling Shareholder is based on 2,295,345 ADSs outstanding as of June 24, 2025. Beneficial ownership is determined in accordance with the rules of the SEC. These rules generally attribute
beneficial ownership of securities to persons who possess sole or shared voting power or investment power with respect to such securities. Except as otherwise indicated, each Selling Shareholder listed below has sole voting and investment power
with respect to the shares of our ADSs. The second column lists the number of ADSs beneficially owned by the Selling Shareholder, based on its ownership of the ADSs as of June 24, 2025, subject to the beneficial ownership limitations on exercises
or conversion, as applicable. The third column lists the ADSs being offered by this prospectus by the Selling Shareholder. The fourth column assumes the sale of all of the shares offered by the Selling Shareholder pursuant to this prospectus.
The Any Market Purchase Agreement also prohibits us from directing the Selling Shareholder to purchase any ADSs (i) if those ADSs,
when aggregated with all other ADSs then held or beneficially owned by the Selling Shareholder and its affiliates, would result in the Selling Shareholder and its affiliates holding or having beneficial ownership, at any single point in time, of
more than 4.99% of the number of ADSs outstanding immediately after the issuance of Purchase Notice Securities issuable pursuant to a Purchase Notice, or (ii) where the issuance of such ADSs, when aggregated with all other ADSs and Ordinary Shares
then held or beneficially owned by the Selling Shareholder and its affiliates, would result in the Selling Shareholder and its affiliates holding or having beneficial ownership, at any single point in time, of more than 4.99% of the Company’s
issued share capital or voting rights in it (unless and until the Company obtains the approval of its shareholders for the issuance of ADSs in excess of such amount), in either case subject to the option to issue Prefunded Warrants in lieu of AMPA
ADSs with respect to the sales pursuant to the Initial Purchase Notice or any Regular Purchase Notice.
Information concerning the Selling Shareholder may change from time to time and any changed information will be set forth in supplements
to this prospectus, if and when necessary. No offer or sale under this prospectus may be made by a shareholder unless that holder is listed in the table below, in any supplement to this prospectus or in an amendment to the related registration
statement that has become effective. We will supplement or amend this prospectus if applicable to include additional Selling Shareholder upon provision of all required information to us and subject to the terms of any relevant agreement between us
and the Selling Shareholder.
The Selling Shareholder is not obligated to sell any of the ADSs offered by this prospectus. Because the Selling Shareholder
identified in the table below may sell some or all of the ADSs owned by it that are included in this prospectus, and because there are currently no agreements, arrangements or understandings with respect to the sale of any of such securities, no
estimate can be given as to the number of securities covered by this prospectus that will be held by the Selling Shareholder.
The Selling Shareholder may sell all, some or none of their ADSs in this offering. See “Plan of
Distribution.”
18
|
ADSs
Beneficially Owned Prior to Offering |
Number
of ADSs Owned After the Offering |
|||||||||||||||||||
|
Selling Shareholder
|
Number (1)
|
Percent (2)
|
Maximum Number
of ADSs to be Sold Pursuant to this Prospectus |
Number
|
Percent (3)
|
|||||||||||||||
|
Alumni Capital LP (4)
|
120,552
|
4.99
|
%
|
5,596,490
|
0
|
0
|
%
|
|||||||||||||
|
(1)
|
This number represents maximum amount of Commitment Warrant ADSs, issuable upon exercise of the Commitment Warrant issued to Alumni on June 20,
2025, under a 4.99% beneficial ownership limitation set forth in the terms of the Commitment Warrant. If there were no beneficial ownership limitation, the maximum amount of Commitment Warrant ADSs, issuable upon exercise of the Commitment
Warrant would be 333,333.
|
|
(2)
|
The percent of beneficial ownership for the Selling Shareholder is based on 2,295,345 ADSs outstanding as of June 24, 2025.
|
|
(3)
|
Assumes that the Selling Shareholder (i) will sell all of the ADSs beneficially owned by it that are covered by this prospectus and (ii) does not
acquire beneficial ownership of any additional ADSs. Beneficial ownership is determined in accordance with SEC rules and generally includes voting or investment power with respect to securities. ADSs subject to Warrants currently
exercisable, or exercisable within 60 days of June 24, 2025, as well as all ADSs registered herein, are counted as outstanding for computing the holdings of the selling shareholder holding such options or warrants.
|
|
(4)
|
Alumni Capital GP LLC is the general partner of Alumni Capital LP. Ashkan Mapar is the manager of Alumni Capital GP LLC, which is the general partner of Alumni Capital LP and, in that capacity, may be deemed
to possess voting and dispositive power over securities owned by Alumni Capital LP; however, Ashkan Mapar disclaims beneficial ownership of these securities except to the extent of his pecuniary interest therein. The address of the
Selling Shareholder is 601 Brickell Key Drive, Suite 700, Miami, FL 33131.
|
Material Relationships with Selling Shareholder
Equity Line of Credit
On June 20, 2025, the Company entered into the Any Market Purchase Agreement with the Selling Shareholder establishing a USD $10 million
equity line of credit. Pursuant to the Any Market Purchase Agreement, the Company has the right, but not the obligation, to issue, from time to time, at the Company’s discretion, to the Selling Shareholder, and the Selling Shareholder is obligated to
purchase, ADSs for an aggregate purchase price of up to USD $10 million (the “Commitment Amount”) at the Company’s request any time during the period commencing on the date on which the Selling Shareholder receives the Commitment Warrant and ending
on the earlier (i) the date on which the ADSs cease trading on an Eligible Market, (ii) the date on which the Investor shall have purchased Purchase Notice Securities for an aggregate purchase price equal to the Commitment Amount, or (iii) 5:00 p.m.
Eastern Time on June 30, 2026.
In consideration for the Selling Shareholder’s execution and delivery of the Any Market Purchase Agreement, on June 20, 2025, we issued
to the Selling Shareholder the Commitment Warrant valid for a term of five years, entitling the Selling Shareholder to purchase up to 333,333 Commitment Warrant ADSs at $3.00 per ADS, subject to adjustments therein. In addition, we agreed to pay
$20,000 representing legal fees of Alumni, which shall be deducted from the proceeds of the sales made pursuant to the Any Market Purchase Agreement.
19
Specifically, the Initial Purchase Notice may be up to USD $1,000,000 at the purchase price equal to Initial Purchase Price. From and
after the closing of the purchase and sale of the Purchase Notice Securities pursuant to the Initial Purchase Notice, we may, at our discretion, direct the Selling Shareholder to purchase (A) the number of ADSs having an aggregate purchase price
equal to the lesser of $500,000 or sixty percent (60%) of the average daily trading volume of the ADSs on the Principal Market over the most recent five business days prior to the respective Purchase Notice Date, unless waived upon mutual discretion
between us and the Selling Shareholder, up to an amount no greater than an aggregate purchase price equal to $3,000,000, at the Regular Purchase Price, or (B) the number of ADSs having an aggregate purchase price equal to the lesser of $500,000 or
thirty percent (30%) of the trading volume of the ADSs on the Principal Market beginning at 4:00 a.m. New York time on the Purchase Notice Date and ending at the time on the Purchase Notice Date that the Purchase Notice has been received by email by
Alumni at the Forward Purchase Price. Subject to the terms of the Any Market Purchase Agreement, we may deliver up to two Purchase Notices with the Forward Purchase Price on any given business day.
The Company cannot issue any AMPA ADSs to the Selling Shareholder until the date that the registration statement to which this
prospectus relates is declared effective by the SEC and a final prospectus in connection therewith is filed and all of the other conditions set forth in the Any Market Purchase Agreement are satisfied.
The Any Market Purchase Agreement also prohibits us from directing the Selling Shareholder to purchase any ADSs (i) if those ADSs, when
aggregated with all other ADSs then held or beneficially owned by the Selling Shareholder and its affiliates, would result in the Selling Shareholder and its affiliates holding or having beneficial ownership, at any single point in time, of more than
4.99% of the number of ADSs outstanding immediately after the issuance of Purchase Notice Securities issuable pursuant to a Purchase Notice, or (ii) where the issuance of such ADSs, when aggregated with all other ADSs and Ordinary Shares then held or
beneficially owned by the Selling Shareholder and its affiliates, would result in the Selling Shareholder and its affiliates holding or having beneficial ownership, at any single point in time, of more than 4.99% of the Company’s issued share capital
or voting rights in it (unless and until the Company obtains the approval of its shareholders for the issuance of ADSs in excess of such amount), in either case subject to the option to issue Prefunded Warrants in lieu of AMPA ADSs with respect to
the sales pursuant to the Initial Purchase Notice or any Regular Purchase Notice.
The Any Market Purchase Agreement will automatically terminate on the earlier of (i) the date on which the ADSs cease trading on an
Eligible Market, (ii) the date on which the Investor shall have purchased Purchase Notice Securities for an aggregate purchase price equal to the Commitment Amount, or (iii) 5:00 p.m. Eastern Time on June 30, 2026. The Any Market Purchase Agreement
does not include any of the following: (i) limitations on the Company’s use of amounts it receives as the purchase price for the ADSs sold to the Selling Shareholder; (ii) financial or business covenants; (iii) restrictions on future financings; (iv)
rights of first refusal; or (v) participation rights or penalties.
The Any Market Purchase Agreement contains customary representations, warranties, conditions and indemnification obligations of the
parties. Pursuant to the Any Market Purchase Agreement, the Company also agreed to file the registration statement to which this prospectus relates with the SEC, covering the resale of the ADSs issued or sold to the Selling Shareholder under the Any
Market Purchase Agreement under the Securities Act. The Selling Shareholder has agreed that neither it nor any of its affiliates will engage in any short-selling or hedging of the ADSs during the term of the Any Market Purchase Agreement.
The description of the Any Market Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to
the full text of the Any Market Purchase Agreement, a copy of which is filed as an exhibit to the registration statement of which this prospectus forms a part and is incorporated herein by reference. See “Recent
Events—Equity Line of Credit.”
20
At our extraordinary general meeting of the shareholders held on May 26, 2025, our shareholders approved the increase of our authorized
share capital to NIS 1,600,000,000, divided into (i) 159,994,000,000 registered Ordinary Shares of NIS 0.01 par value each and (ii) 6,000,000 preferred shares of NIS 0.01 par value each.
As of June 24, 2025, there were 22,953,451,000 Ordinary Shares issued and outstanding and no preference shares issued and outstanding.
All the Company’s issued and outstanding shares are fully paid. For a description of our Ordinary Shares and ADSs, see our Annual Report on Form 20-F for the year ended December 31, 2024, including Exhibit 2.3, Description of Share Capital, which is
incorporated herein by reference.
21
Each of the ADSs represents 10,000 Ordinary Shares. The ADSs trade on The Nasdaq Capital Market under the symbol “RDHL.”
The form of the Deposit Agreement for the ADSs and the form of American Depositary Receipt that represents an ADS have been incorporated
by reference as exhibits to this prospectus.
Fees and Expenses
|
Persons depositing or withdrawing shares or
American Depositary Shareholders must pay: |
|
For:
|
|
|
$5.00 (or less) per 100 American Depositary Shares (or portion of 100 American Depositary Shares)
|
●
|
Issuance of American Depositary Shares, including issuances resulting from a distribution of shares or rights or other
property
|
|
|
●
|
Cancellation of American Depositary Shares for the purpose of withdrawal, including if the Deposit Agreement terminates
|
||
|
$0.05 (or less) per American Depositary Share
|
●
|
Any cash distribution to American Depositary Shareholders
|
|
|
A fee equivalent to the fee that would be payable if securities distributed to you had been shares and the shares had been deposited for issuance
of American Depositary Shares
|
●
|
Distribution of securities distributed to holders of deposited securities which are distributed by the Depositary to American
Depositary Shareholders
|
|
|
$0.05 (or less) per American Depositary Shares per calendar year
|
●
|
Depositary services
|
|
|
Registration or transfer fees
|
●
|
Transfer and registration of shares on our share register to or from the name of the depositary or its agent when you deposit
or withdraw shares
|
|
|
Expenses of the Depositary
|
●
|
Cable, telex and facsimile transmissions (when expressly provided in the Deposit Agreement)
|
|
|
●
|
Converting foreign currency to U.S. dollars
|
||
|
Taxes and other governmental charges the Depositary or the custodian have to pay on any American Depositary Share or share underlying an American
Depositary Share, for example, stock transfer taxes, stamp duty or withholding taxes
|
●
|
As necessary
|
|
|
Any charges incurred by the Depositary or its agents for servicing the deposited securities
|
●
|
As necessary
|
|
The Depositary collects its fees for delivery and surrender of American Depositary Shares directly from investors depositing shares or
surrendering American Depositary Shares for the purpose of withdrawal or from intermediaries acting for them. The Depositary collects fees for making distributions to investors by deducting those fees from the amounts distributed or by selling a
portion of the distributable property to pay the fees. The Depositary may collect its annual fee for depositary services by deduction from cash distributions or by directly billing investors or by charging the book-entry system accounts of
participants acting for them. The Depositary may generally refuse to provide fee-attracting services until its fees for those services are paid.
Other material terms and provisions of the ADSs are described under the caption “Description of Share
Capital” in this prospectus and are incorporated herein by reference.
22
The following table sets forth the estimated costs and expenses payable by the registrant expected to be incurred in connection with the
registration of the Offered ADSs being registered hereby:
|
EXPENSES
|
AMOUNT
|
|||
|
SEC registration fee
|
$
|
1,714
|
||
|
Legal fees and expenses
|
110,000
|
|||
|
Accounting fees and expenses
|
10,000
|
|||
|
Miscellaneous
|
52,632
|
|||
|
Total
|
$
|
174,346
|
||
All amounts in the table are estimates except the SEC registration fee. The Company will pay all of the expenses of this offering.
23
On June 20, 2025, we entered into the Any Market Purchase Agreement with the Selling Shareholder. The Any Market Purchase Agreement provides that, upon the
terms and subject to the conditions set forth therein, the Selling Shareholder is committed to purchase up to USD $10.0 million in ADSs. From time to time, and at our sole discretion, we may present the Selling Shareholder with purchase notices to
purchase Purchase Notice Securities. The Purchase Notice Securities will be issued and sold to the Selling Shareholder at a per share price equal to, at the election of the Company as specified in the relevant Purchase Notice, subject to the
applicable terms and limitations as set forth in the Any Market Purchase Agreement: (i) the Initial Purchase Price, (ii) the Regular Purchase Price or (ii) the Forward Purchase Price. The ADSs offered by this prospectus are being offered for resale
by the Selling Shareholder.
It is possible that our shares may be sold from time to time by the Selling Shareholder in one or more of the following manners:
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ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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a block trade in which the broker-dealer so engaged will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the
transaction;
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an exchange distribution in accordance with the rules of the applicable exchange;
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to a broker-dealer as principal and resale by the broker-dealer for its account;
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through brokers, dealers, or underwriters who may act solely as agents;
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“at the market” into an existing market for our common stock;
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in other ways not involving market makers or established business markets, including direct sales to purchasers or sales effected through agents;
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in privately negotiated transactions; or
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a combination of any such methods of sale.
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In order to comply with the securities laws of certain states, if applicable, the ADSs may be sold through registered or licensed
brokers or dealers. In addition, in certain states, the ADSs may not be sold unless they have been registered or qualified for sale in the state or an exemption from the state’s registration or qualification requirement is available and complied
with.
Brokers, dealers, underwriters or agents participating in any distribution of the ADSs may receive compensation in the form of
commissions, discounts, or concessions from the seller and/or purchasers of the ADSs for whom the broker-dealers may act as agent. The compensation paid to a particular broker-dealer may be less than or in excess of customary commissions. Neither we
nor Alumni Capital can presently estimate the amount of compensation that any agent will receive.
Alumni Capital is deemed to be an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act. Alumni Capital has
informed us that it will use an unaffiliated broker-dealer to effectuate all sales, if any, of the ADSs that it may purchase from us pursuant to the Purchase Agreement. Such sales will be made on Nasdaq at prices and at terms then prevailing or at
prices related to the then current market price. Each such unaffiliated broker-dealer will be an underwriter within the meaning of Section 2(a)(11) of the Securities Act. Alumni Capital has informed us that each such broker-dealer will receive
commissions from Alumni Capital that will not exceed customary brokerage commissions.
We know of no existing arrangements between Alumni Capital and any of our other shareholders, broker, dealer, underwriter, or agent
relating to the sale or distribution of the ADSs offered by this prospectus.
The Selling Shareholder has agreed that, during the term of the Any Market Purchase Agreement, neither the Selling Shareholder or its
affiliates will engage in any short sales (as such term is defined in Section 242.200 of Regulation SHO of the U.S. Exchange Act) or hedging transactions with respect to the ADS.
We have advised the Selling Shareholder that it is required to comply with Regulation M promulgated under the Exchange Act. With certain
exceptions, Regulation M precludes the Selling Shareholder, any affiliated purchasers, and any broker-dealer or other person who participates in the distribution from bidding for or purchasing, or attempting to induce any person to bid for or
purchase any security which is the subject of the distribution until the entire distribution is complete. Regulation M also prohibits any bids or purchases made in order to stabilize the price of a security in connection with the distribution of that
security. All of the foregoing may affect the marketability of the securities offered by this prospectus.
We will pay the expenses incident to the registration under the Securities Act of the offer and sale of our ADSs covered by this prospectus by the
Selling Shareholder. We estimate that our total expenses for the offering will be approximately $174,346 (excluding the Commitment Warrant). In consideration for the Selling Shareholder’s execution and delivery of the Any Market Purchase
Agreement, on June 20, 2025, we issued to the Selling Shareholder the Commitment Warrant valid for a term of five years, entitling the Selling Shareholder to purchase up to 333,333 Commitment Warrant ADSs at $3.00 per ADS, subject to adjustments
therein. In addition, we agreed to pay $20,000 representing legal fees of Alumni, which shall be deducted from the proceeds of the sales made pursuant to the Any Market Purchase Agreement. The resale by the
Selling Shareholder of the Commitment Warrant ADSs is being registered in this registration statement.
Our ADSs are listed on Nasdaq under the symbol “RDHL.”
Offer Restrictions Outside the United States
Other than in the United States, no action has been taken by us or Alumni Capital that would permit a public offering of the securities offered by this prospectus in any jurisdiction where
action for that purpose is required. The securities offered by this prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and
sale of any such securities be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this
prospectus comes are advised to inform themselves about and to observe any restrictions relating to the offering and the distribution of this prospectus. This prospectus does not constitute an offer to sell or a solicitation of an offer to
buy any securities offered by this prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.
24
Certain legal matters with respect to Israeli law and with respect to the validity of the offered securities under Israeli law will be
passed upon for us by Goldfarb Gross Seligman & Co. Certain legal matters with respect to U.S. federal securities law and New York law will be passed upon for us by Haynes and Boone, LLP.
The financial statements incorporated in this prospectus by reference to the Annual Report on Form 20-F for the year ended December 31,
2024, have been so incorporated in reliance on the report of Kesselman & Kesselman, Certified Public Accountants (Isr.) (which includes an explanatory paragraph regarding the existence of substantial doubt about the Company’s ability to continue
as a going concern as described in Note 1(a)(3) to the financial statements), a member firm of PricewaterhouseCoopers International Limited, an independent registered public accounting firm, given on the authority of said firm as experts in auditing
and accounting.
We are incorporated under the laws of the State of Israel. Service of process upon us and upon our directors and officers and the
Israeli experts named in this prospectus, many of whom reside outside the United States, may be difficult to obtain within the United States. Furthermore, because many of our assets and most of our directors and officers are located outside the
United States, any judgment obtained in the United States against us or any of our directors and officers may not be collectible within the United States.
It may be difficult to assert U.S. securities law claims in original actions instituted in Israel. Israeli courts may refuse to hear a
claim based on a violation of U.S. securities laws because Israel is not the most appropriate forum to bring such a claim. In addition, even if an Israeli court agrees to hear a claim, it may determine that Israeli law and not U.S. law is applicable
to the claim. If U.S. law is found to be applicable, the content of applicable U.S. law must be proved as a fact which can be a time-consuming and costly process. Certain matters of the procedure will also be governed by Israeli law.
Subject to specified time limitations and legal procedures, Israeli courts may enforce a United States judgment in a civil matter which,
subject to certain exceptions, is non-appealable, including judgments based upon the civil liability provisions of the Securities Act and the Exchange Act and including a monetary or compensatory judgment in a non-civil matter, provided that:
| • |
the judgments are obtained after due process before a court of competent jurisdiction, according to the laws of the state in which the judgment is given and the rules of private
international law currently prevailing in Israel;
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| • |
the prevailing law of the foreign state in which the judgments were rendered allows the enforcement of judgments of Israeli courts (however, the Israeli courts may waive this requirement
following a request by the attorney general);
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adequate service of process has been effected and the defendant has had a reasonable opportunity to be heard and to present his or her evidence;
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| • |
the judgments are not contrary to public policy, and the enforcement of the civil liabilities set forth in the judgment does not impair the security or sovereignty of the State of Israel;
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the judgments were not obtained by fraud and do not conflict with any other valid judgment in the same matter between the same parties;
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an action between the same parties in the same matter is not pending in any Israeli court at the time the lawsuit is instituted in the foreign court; and
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| • |
the obligations under the judgment are enforceable according to the laws of the State of Israel and according to the law of the foreign state in which the relief was granted.
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We have irrevocably appointed RedHill Biopharma Inc. as our agent to receive service of process in any action against us in any United
States federal or state court arising out of this offering or any purchase or sale of securities in connection with this offering.
If a foreign judgment is enforced by an Israeli court, it generally will be payable in Israeli currency, which can then be converted into non-Israeli
currency and transferred out of Israel. The usual practice in an action before an Israeli court to recover an amount in a non-Israeli currency is for the Israeli court to issue a judgment for the equivalent amount in Israeli currency at the rate of
exchange in force on the date of the judgment, but the judgment debtor may make payment in foreign currency. Pending collection, the amount of the judgment of an Israeli court stated in Israeli currency ordinarily will be linked to the Israeli
consumer price index plus interest at the annual statutory rate set by Israeli regulations prevailing at the time. Judgment creditors must bear the risk of unfavorable exchange rates.
25
We have filed with the U.S. Securities and Exchange Commission a registration statement (including amendments and exhibits to the
registration statement) on Form F-1 under the Securities Act. This prospectus, which is part of the registration statement, does not contain all of the information set forth in the registration statement and the exhibits and schedules to the
registration statement. The rules and regulations of the SEC allow us to omit certain information from this prospectus that is included in the registration statement. For further information, we refer you to the registration statement and the
exhibits and schedules filed as part of the registration statement. If a document has been filed as an exhibit to the registration statement, we refer you to the copy of the document that has been filed. Each statement in this prospectus relating to
a document filed as an exhibit is qualified in all respects by the filed exhibit.
We are subject to the informational requirements of the Exchange Act. Accordingly, we are required to file reports and other information
with the SEC, including annual reports on Form 20-F and reports on Form 6-K. The SEC maintains an Internet website that contains reports and other information about issuers, like us, that file electronically with the SEC. The address of that website
is www.sec.gov. Our website address is http://www.redhillbio.com. Information contained on, or that can be accessed through, our website does not constitute a part of
this prospectus.
As a foreign private issuer, we are exempt under the Exchange Act from, among other things, the rules prescribing the furnishing and
content of proxy statements, and our directors, executive officers and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act.
26
We file or furnish annual reports and reports of foreign private issuer and other information with the SEC. These filings and other
submissions contain important information that does not appear in this prospectus. The SEC allows us to incorporate by reference information into this document. This means that we can disclose important information to you by referring you to another
document filed separately with the SEC. The information incorporated by reference is considered to be a part of this document, except for any information superseded by information that is included directly in this prospectus.
We incorporate by reference the following documents or information that we have filed with the SEC:
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●
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the description of the ADSs and our Ordinary Shares contained in Exhibit
2.3 to our Annual Report on Form 20-F for the fiscal year ended December 31, 2024, filed with the SEC on April 10, 2025;
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●
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our Annual Report on Form 20-F for the fiscal year ended December 31, 2024, filed with the SEC on April 10, 2025; and
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●
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our Reports of Foreign Private Issuer on Form 6-K furnished with the SEC on January 21, 2025, February 3, 2025, February 4, 2025, February 25, 2025, February 27, 2025, March 12, 2025, March 18, 2025, March 26, 2025, April 1, 2025, April 8, 2025, April 16, 2025, April 17, 2025, April 28, 2025, May 2, 2025, May 5, 2025, May 13, 2025, May 19, 2025, May 27, 2025, and June 25, 2025 (in each case only to the extent provided in such Form 6-K).
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The information relating to us contained in this prospectus does not purport to be comprehensive and should be read together with the information contained
in the documents incorporated or deemed to be incorporated by reference in this prospectus.
You should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to
provide you with different information. You should not assume that the information in this prospectus is accurate as of any date other than the date of this prospectus or the date of the documents incorporated by reference in this prospectus. As you
read the above documents, you may find inconsistencies in information from one document to another. If you find inconsistencies between the documents and this prospectus, you should rely on the statements made in the most recent document. All
information appearing in this prospectus is qualified in its entirety by the information and financial statements, including the notes thereto, contained in the documents incorporated by reference herein.
We will provide you without charge, upon your written or oral request, a copy of any of the documents incorporated by reference in this
prospectus, other than exhibits to such documents which are not specifically incorporated by reference into such documents. Please direct your written or telephone requests to RedHill Biopharma Ltd., 21 Ha’arba’a Street, Tel Aviv 6473921, Israel,
Attn: Dror Ben-Asher, telephone number: +972 (3) 541-3131. You may also obtain information about us by visiting our website at www.redhillbio.com. Information contained in our website is included as an
inactive textual reference only and is not part of this prospectus. The SEC maintains an Internet site, http://www.sec.gov, that contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC.
27
REDHILL BIOPHARMA LTD.
UP TO 5,596,490 AMERICAN DEPOSITARY SHARES REPRESENTING 55,964,900,000 ORDINARY SHARES
PROSPECTUS
, 2025
PART II
Information Not Required in the Prospectus
Item 6. Indemnification of Directors and Officers
Exemption, Insurance, and Indemnification of Directors and Officers
Exemption of Officers and Directors
Under the Israeli Companies Law, a company may not exempt an officer or director from liability with respect to a breach of his duty of
loyalty, but may exempt in advance an officer or director from liability to the company, in whole or in part, with respect to a breach of his duty of care, except in connection with a prohibited distribution made by the company, if so provided in its
articles of association. Our articles of association provide for this exemption from liability for our directors and officers.
Directors’ and Officers’ Insurance
The Israeli Companies Law and our articles of association provide that, subject to the provisions of the Israeli Companies Law, we may
obtain insurance for our directors and officers for any liability stemming from any act performed by an officer or director in his capacity as an officer or director, as the case may be with respect to any of the following:
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a breach of such officer’s or director’s duty of care to us or to another person;
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a breach of such officer’s or director’s duty of loyalty to us, provided that such officer or director acted in good faith and had reasonable cause to assume that his act would not
prejudice our interests;
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a financial liability imposed upon such officer or director in favor of another person;
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financial liability imposed on the officer or director for payment to persons or entities harmed as a result of violations in administrative proceedings as described in Section
52(54)(a)(1)(a) of the Israeli Securities Law (“Party Harmed by the Breach”);
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expenses incurred by such officer or director in connection with an administrative proceeding conducted in this matter, including reasonable litigation expenses, including legal fees; or
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a breach of any duty or any other obligation, to the extent insurance may be permitted by law.
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Pursuant to the Compensation Policy, we may obtain a directors’ and officers’ liability insurance policy, which would apply to our or
our subsidiaries’ directors and officers, as they may be, from time to time, subject to the following terms and conditions: (a) the total insurance coverage under the insurance policy may not exceed $100 million; and (b) the purchase of such policy
must be approved by the Compensation Committee (and, if required by law, by the board of directors) which shall determine that such policy reflects the current market conditions and that it does not materially affect the Company's profitability,
assets or liabilities. In addition, pursuant to our Compensation Policy, should we sell our operations (in whole or in part) or in case of a merger, spin-off or any other significant business combination involving us or part or all of our assets, we
may obtain a director’s and officers’ liability insurance policy (run-off) for our directors and officers in office with regard to the relevant operations, subject to the following terms and conditions: (a) the insurance term may not exceed seven
years; (b) the coverage amount may not exceed $100 million; and (c) the purchase of such policy must be approved by the Compensation Committee (and, if required by law, by the board of directors) which shall determine that such policy reflects the
current market conditions and that it does not materially affect the Company's profitability, assets or liabilities. The Compensation Policy is in effect for three years from the May 2025 annual general meeting.
Pursuant to the foregoing approvals, we carry directors’ and officers’ liability insurance. This insurance is renewed on an annual
basis.
II - 1
Indemnification of Officers and Directors
The Israeli Companies Law provides that a company may indemnify an officer or director for payments or expenses associated with acts
performed in his capacity as an officer or director of the company, provided the company’s articles of association include the following provisions with respect to indemnification:
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a provision authorizing the company to indemnify an officer or director for future events with respect to a monetary liability imposed on him in favor of another person pursuant to a
judgment (including a judgment given in a settlement or an arbitrator’s award approved by the court), so long as such indemnification is limited to types of events which, in the board of directors’ opinion, are foreseeable at the time of
granting the indemnity undertaking given the company’s actual business, and in such amount or standard as the board of directors deems reasonable under the circumstances. Such undertaking must specify the events that, in the board of
directors’ opinion, are foreseeable in view of the company’s actual business at the time of the undertaking and the amount or the standards that the board of directors deemed reasonable at the time;
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a provision authorizing the company to indemnify an officer or director for future events with respect to reasonable litigation expenses, including counsel fees, incurred by an officer or
director in which he is ordered to pay by a court, in proceedings that the company institutes against him or instituted on behalf of the company or by another person, or in a criminal charge of which he was acquitted, or a criminal charge in
which he was convicted of a criminal offense that does not require proof of criminal intent;
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a provision authorizing the company to indemnify an officer or director for future events with respect to reasonable litigation fees, including attorney’s fees, incurred by an officer or
director due to an investigation or proceeding filed against him by an authority that is authorized to conduct such investigation or proceeding, and that resulted without filing an indictment against him and without imposing on him financial
obligation in lieu of a criminal proceeding, or that resulted without filing an indictment against him but with imposing on him a financial obligation as an alternative to a criminal proceeding in respect of an offense that does not require
the proof of criminal intent or in connection with a monetary sanction;
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a provision authorizing the company to indemnify an officer or director for future events with respect to a Party Harmed by the Breach;
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a provision authorizing the company to indemnify an officer or director for future events with respect to expenses incurred by such officer or director in connection with an
administrative proceeding, including reasonable litigation expenses, including legal fees; and
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a provision authorizing the company to indemnify an officer or director retroactively.
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Limitations on Insurance, Exemption and Indemnification
The Israeli Companies Law and our articles of association provide that a company may not exempt or indemnify a director or an officer
nor enter into an insurance contract, which would provide coverage for any monetary liability incurred as a result of any of the following:
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a breach by the officer or director of his duty of loyalty, except for insurance and indemnification where the officer or director acted in good faith and had a reasonable basis to
believe that the act would not prejudice the company;
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a breach by the officer or director of his duty of care if the breach was done intentionally or recklessly, except if the breach was solely as a result of negligence;
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any act or omission done with the intent to derive an illegal personal benefit; or
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any fine, civil fine, monetary sanctions, or forfeit imposed on the officer or director.
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In addition, under the Israeli Companies Law, exemption of, indemnification of, and procurement of insurance coverage for, our
directors and officers must be approved by our audit committee and board of directors and, in specified circumstances, by our shareholders.
II - 2
Letters of Indemnification
We may provide a commitment to indemnify in advance any director or officer of ours in the course of such person’s position as our
director or officer, all subject to the letter of indemnification, as approved by our shareholders from time to time and in accordance with our articles of association. We may provide retroactive indemnification to any officer to the extent allowed
by the Israeli Companies Law. As approved by our shareholders on May 13, 2022, the amount of the advance indemnity is limited to the higher of 25% of our then shareholders’ equity, per our most recent annual financial statements, or $10 million.
As part of the indemnification letters, we exempted our directors and officers, in advance, to the extent permitted by law, from any
liability for any damage incurred by them, either directly or indirectly, due to the breach of an officer’s or director’s duty of care vis-à-vis us, within his acts in his capacity as an officer or director. The letter provides that so long as not
permitted by law, we do not exempt an officer or director in advance from his liability to us for a breach of the duty of care upon distribution, to the extent applicable to the officer or director, if any. The letter also exempts an officer or
director from any liability for any damage incurred by him, either directly or indirectly, due to the breach of the officer or director’s duty of care vis-à-vis us, by his acts in his capacity as an officer or director prior to the letter of
exemption and indemnification becoming effective.
Item 7. Recent Sales of Unregistered Securities
Equity Line of Credit
On June 20, 2025, the Company entered into the Any Market Purchase Agreement with the Selling Shareholder establishing a USD $10 million
equity line of credit. Pursuant to the Any Market Purchase Agreement, the Company has the right, but not the obligation, to issue, from time to time, at the Company’s discretion, to the Selling Shareholder, and the Selling Shareholder is obligated to
purchase, ADSs for an aggregate purchase price of up to USD $10 million (the “Commitment Amount”) at the Company’s request and subject to the terms of the Any Market Purchase Agreement, any time during the period commencing on June 20, 2025, and
ending on the earlier (i) the date on which the ADSs cease trading on an Eligible Market, (ii) the date on which the Investor shall have purchased Purchase Notice Securities for an aggregate purchase price equal to the Commitment Amount, or (iii)
5:00 p.m. Eastern Time on June 30, 2026.
In consideration for the Selling Shareholder’s execution and delivery of the Any Market Purchase Agreement, on June 20, 2025, we issued
to the Selling Shareholder the Commitment Warrant valid for a term of five years, entitling the Selling Shareholder to purchase up to 333,333 Commitment Warrant ADSs at $3.00 per ADS, subject to adjustments therein. In addition, we agreed to pay
$20,000 representing legal fees of Alumni, which shall be deducted from the proceeds of the sales made pursuant to the Any Market Purchase Agreement.
Specifically, the Initial Purchase Notice may be up to USD $1,000,000 at the purchase price equal to Initial Purchase Price. From and
after the closing of the purchase and sale of the Purchase Notice Securities pursuant to the Initial Purchase Notice, we may, at our discretion, direct the Selling Shareholder to purchase (A) the number of ADSs having an aggregate purchase price
equal to the lesser of $500,000 or sixty percent (60%) of the average daily trading volume of the ADSs on the Principal Market over the most recent five business days prior to the respective Purchase Notice Date, unless waived upon mutual
discretion between us and the Selling Shareholder, up to an amount no greater than an aggregate purchase price equal to $3,000,000, at the Regular Purchase Price, or (B) the number of ADSs having an aggregate purchase price equal to the lesser of
$500,000 or thirty percent (30%) of the trading volume of the ADSs on the Principal Market beginning at 4:00 a.m. New York time on the Purchase Notice Date and ending at the time on the Purchase Notice Date that the Purchase Notice has been
received by email by Alumni at the Forward Purchase Price. Subject to the terms of the Any Market Purchase Agreement, we may deliver up to two Purchase Notices with the Forward Purchase Price on any given business day.
II - 3
The Company cannot issue any AMPA ADSs to the Selling Shareholder until the date that the registration statement is declared effective
by the SEC and a final prospectus in connection therewith is filed and all of the other conditions set forth in the Any Market Purchase Agreement are satisfied.
The Any Market Purchase Agreement also prohibits us from directing the Selling Shareholder to purchase any ADSs (i) if those ADSs, when
aggregated with all other ADSs then held or beneficially owned by the Selling Shareholder and its affiliates, would result in the Selling Shareholder and its affiliates holding or having beneficial ownership, at any single point in time, of more than
4.99% of the number of ADSs outstanding immediately after the issuance of Purchase Notice Securities issuable pursuant to a Purchase Notice, or (ii) where the issuance of such ADSs, when aggregated with all other ADSs and Ordinary Shares then held or
beneficially owned by the Selling Shareholder and its affiliates, would result in the Selling Shareholder and its affiliates holding or having beneficial ownership, at any single point in time, of more than 4.99% of the Company’s issued share capital
or voting rights in it (unless and until the Company obtains the approval of its shareholders for the issuance of ADSs in excess of such amount), in either case subject to the option to issue Prefunded Warrants in lieu of AMPA ADSs with respect to
the sales pursuant to the Initial Purchase Notice or any Regular Purchase Notice.
The Any Market Purchase Agreement will automatically terminate on the earlier of (i) the date on which the ADSs cease trading on an
Eligible Market, (ii) the date on which the Investor shall have purchased Purchase Notice Securities for an aggregate purchase price equal to the Commitment Amount, or (iii) 5:00 p.m. Eastern Time on June 30, 2026. The Any Market Purchase Agreement
does not include any of the following: (i) limitations on the Company’s use of amounts it receives as the purchase price for the ADSs sold to the Selling Shareholder; (ii) financial or business covenants; (iii) restrictions on future financings; (iv)
rights of first refusal; or (v) participation rights or penalties.
The Any Market Purchase Agreement contains customary representations, warranties, conditions and indemnification obligations of the
parties. Pursuant to the Any Market Purchase Agreement, the Company also agreed to file the registration statement to which this prospectus relates with the SEC, covering the resale of the ADSs issued or sold to the Selling Shareholder under the Any
Market Purchase Agreement under the Securities Act. The Selling Shareholder has agreed that neither it nor any of its affiliates will engage in any short-selling or hedging of the ADSs during the term of the Any Market Purchase Agreement.
The description of the Any Market Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to
the full text of the Any Market Purchase Agreement, a copy of which is filed as an exhibit to the registration statement of which this prospectus forms a part and is incorporated herein by reference.
Item 8. Exhibits
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(a)
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The following documents are filed as part of this registration statement:
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See the Exhibit Index attached to this registration statement, which is incorporated by reference herein.
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(b)
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Financial Statement Schedules
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None.
Item 9. Undertakings
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(a)
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The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of
Filing Fee Tables” or “Calculation of Registration Fee” table, as applicable, in the effective registration statement; and
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II - 4
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(iii)
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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;
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(2)
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That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment 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;
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(3)
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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;
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(4)
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To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A of Form 20-F
at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act need not be furnished, provided that
the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those financial statements.
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(5)
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That, for the purpose of determining liability under the Securities Act to any purchaser:
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(i)
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If the registrant is relying on Rule 430B (§ 230.430B of this chapter):
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(A)
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each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and
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each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act
shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract
of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date;
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(ii)
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If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A (§ 230.430A of this chapter), shall be deemed to be part of and included in the registration statement as of the date it is first
used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
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(h)
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Insofar as indemnification for liabilities arising under the Securities Act 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 SEC such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.
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II - 5
EXHIBIT INDEX
The following documents are filed as part of this registration statement:
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II - 6
| Power of Attorney (included in the signature page of to the Registration Statement). |
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* Filed herewith.
^ Indicates management contract or compensatory plan.
+ Confidential treatment granted with respect to certain portions of this exhibit.
† Certain identified confidential information in this exhibit has been omitted because such identified confidential information is (i) the type the Company
treats as private or confidential and (ii) is not material. A copy of the omitted portions will be furnished to the SEC upon its request.
II - 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form F-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Tel Aviv, Israel, on June 25, 2025.
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REDHILL BIOPHARMA LTD.
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By:
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/s/ Dror Ben-Asher
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Name: Dror Ben-Asher
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Title: Chief Executive Officer and Chairman of the
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Board of Directors
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By:
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/s/ Razi Ingber
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Name: Razi Ingber
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Title: Chief Financial Officer
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II - 8
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Dror Ben-Asher and
Razi Ingber and each of them, individually, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead in any and all capacities, in connection with this
registration statement, including to sign in the name and on behalf of the undersigned, this registration statement and any and all amendments thereto, including post-effective amendments and registrations filed pursuant to Rule 462 under the U.S.
Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the U.S. Securities and Exchange Commission, granting unto such attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or
his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Dror Ben-Asher
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Chief Executive Officer and Chairman of the Board of Directors
(Principal Executive Officer)
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June 25,
2025
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Dror Ben-Asher
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/s/ Razi Ingber
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Chief Financial Officer
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June 25,
2025
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Razi Ingber
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(Principal Financial Officer and Principal Accounting Officer)
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/s/ Shmuel Cabilly
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Director
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June 25,
2025
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Dr. Shmuel Cabilly
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/s/ Roni Mamluk
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Director
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June 25,
2025
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Dr. Roni Mamluk
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| /s/ Kenneth Reed |
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Director
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June 25,
2025
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Dr. Kenneth Reed
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/s/ Ofer Tsimchi
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Director
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June 25,
2025
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Ofer Tsimchi
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/s/ Rick Scruggs
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Chief Commercial Officer and Director
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June 25,
2025
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Rick Scruggs
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of 1933, the undersigned has signed this Registration Statement on
Form F-1, solely in the capacity of the duly authorized representative of RedHill Biopharma Ltd. in the United States, on June 25, 2025.
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REDHILL BIOPHARMA INC.
Authorized U.S. Representative
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By: /s/ Razi Ingber
Name: Razi Ingber
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II - 9
Exhibit 3.1
These Articles of Association are an unofficial translation of the Articles of Association
in Hebrew adopted by the Company.
The Articles of Association will take effect upon the public issuance of the Company
Articles of Association
of
Redhill Biopharma Ltd.
(“Company”)
As last amended by the annual general meeting of shareholders on May 26, 2025
Table of Contents
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| 12. |
Lien on Shares | 9 |
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2
| 1. |
| 1.1 |
In these Articles, each of the terms set forth below shall have the meaning set forth opposite it:
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Law -
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The provisions of any law applicable in the State of Israel.
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Administrative Proceeding -
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A proceeding pursuant to Chapter H3 (Imposing Monetary Sanction by the ISA), H4 (Imposing Administrative Enforcement Measures by the
Administrative Enforcement Committee) and/or I1 (Conditioned Arrangement for Avoidance of Taking Action of for Stopping Action) of the Securities Law, as amended from time to time
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The Companies Law -
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The Companies Law, 5759 – 1999; or any provision of law superseding same.
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The Securities Law -
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The Securities Law, 5728 – 1968; or any provision of law superseding same.
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Business Day -
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A day on which most of the banks in Israel are open for the performance of transactions.
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Writing -
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Print and any other form of imprinting words including documents transmitted in writing via facsimile, by telegraph, telex, email,
computer or in any other electronic means of communication, creating or allowing the creation of any copy and/or printed output of the document.
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Securities -
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As defined in Section 1 of the Securities Law.
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Incapacitated -
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A person declared incapacitated pursuant to the Legal Capacity and Guardianship Law, 5722 – 1962.
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Companies Ordinance -
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The Companies Ordinance [New Version], 5743 – 1983, or any provision of law superseding same.
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Simple Majority -
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A majority of over one half of the votes of the shareholders entitled to vote who have voted in person or by proxy or by means of a
voting paper, other than abstainees.
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A majority of 75% -
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A majority of 75% or more of the votes of the shareholders entitled to vote who have voted in person or by proxy or by means of a voting
paper, other than abstainees.
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Articles of Association -
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The Company's articles of association as per the wording herein or as duly modified, from time to time, either expressly or under any
law.
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The Companies Regulations -
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Regulations enacted by virtue of the Companies Law and/or by virtue of the Companies Ordinance.
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Securities Regulations -
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Regulations enacted by virtue of the Securities Law.
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Related Corporation -
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A corporation controlling the Company directly and/or indirectly and/or any corporation directly and/or indirectly controlled by such
corporation and/or any corporation controlled by the Company, directly and/or indirectly.
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3
| 1.2 |
In these Articles, reference to any organ or officeholder is to organs or officeholders of the company.
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| 1.3 |
The provisions of sections 3-10 of the Interpretation Law, 5741 – 1981, shall also apply, mutatis mutandis, to the interpretation of
these Articles, where there is no other provision in respect of such matter and where such matter or the context thereof, contain nothing which does not comply with such applicability.
Save for the provisions of this Article, any word or term in these Articles shall have the meaning imparted to them in the Companies Law, and where there is
no such meaning in the Companies Law, then the meaning imparted to them in the Companies Regulations, and where there is no such meaning, then the meaning imparted to them in the Securities Law, and where there is no such meaning, then the
meaning imparted to them in the Securities Regulations and where there is no such meaning, then the meaning imparted to them in any other law, all where the meaning imparted as aforesaid is not in conflict with the context where such word
or expression appears or with the purpose of the relevant provision in these Articles.
In case of reference in these Articles to a provision of law, and such provision has been revised or revoked, such provision shall be deemed valid and as
though it were part of the Articles, unless in consequence of such revision or cancellation, such provision has no effect.
The provisions of these Articles are designed to add to and contract out the provisions stipulated in the Companies Law. In the event that any of the
provisions of these Articles is in contravention of that permitted under law, the provisions of these Articles shall be interpreted to the extent possible in accordance with the provisions of the law.
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| 2. |
The Company is a public company.
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| 3. |
The Company may make donations, even if the donation is not made as part of commercial considerations.
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| 4. |
The Company shall engage in any lawful business.
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| 5. |
The liability of the shareholders of the Company is limited, each of them to full payment of the amount that he
has undertaken to pay for the shares allocated to him at the time of the allocation.
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4
| 6. |
The Company may amend any of the provisions of these Articles or substitute these Articles for other Articles, by
means of a resolution passed by the a simple majority at a general meeting, apart from the provisions of Sub-Articles 14.1, 14.2, 19.1 and 19.2 herein, the amendment or replacement of which is subject to a resolution to be passed by a
majority of 75% at a general meeting.
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Chapter Two - The Share Capital of the Company
| 7. |
| 7.1 |
The Company's registered share capital is NIS 1,600,000,000, divided into (i) 159,994,000,000 registered ordinary shares of NIS 0.01 par value each (hereinafter: "share", "ordinary share", "shares" or "ordinary shares", as the case may be) and (ii) 6,000,000 preferred shares of NIS 0.01 par value each (hereinafter: “the preferred
shares"). Each ordinary share confers a right to receive invitations to participate in and vote at the general meetings. A shareholder shall have one vote for every fully paid up ordinary share that he holds. All ordinary shares have
equal rights inter se with respect to dividend, distribution of bonus shares or any other distribution, capital refund and participation in distribution of surplus of Company assets upon liquidation.
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The preferred shares may be issued from time to time in one or more series pursuant to a resolution or
resolutions providing for such issue duly adopted by the board of directors (authority to do so being hereby expressly vested in the board of directors). The board of directors is further authorized, subject to any limitations prescribed by law, to
fix by resolution or resolutions the designation, powers, preferences, and rights of the shares of each such series and any qualifications, limitations or restrictions thereof. The board of directors is further authorized to increase (but not above
the total number of authorized shares of the class) or decrease (but not below the number of shares of any such series then outstanding) the number of shares of any series, the number of which was fixed by it, subject to the powers, preferences and
rights, and the qualifications, limitations and restrictions thereof stated in these Articles or the resolution of the board of directors originally fixing the number of shares of such series.
| 7.2 |
The provisions of these Articles in relation to shares, shall also apply, mutatis mutandis, to other securities to be issued by the
Company except to the extent otherwise determined by the board of directors.
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| 8. |
| 8.1 |
No Priority Right - the existing shareholders of the Company shall not have a priority right, a right of preference, or any other right whatsoever to acquire the
Company's securities. The board of directors may, at its exclusive discretion, first offer the Company's securities to all or any of the current shareholders.
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5
| 8.2 |
Redeemable Securities
The Company may issue redeemable securities, with rights attached to them and subject to such terms and conditions as shall be prescribed by the board of
directors.
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| 8.3 |
Commissions - the Company may pay any person a commission (including underwriting fees) in consideration of underwriting services, marketing or distribution of the
Company's securities, either conditionally or unconditionally, on such terms and conditions as shall be prescribed by the board of directors. Payment as aforementioned in this Article can be made either in cash or in securities of the
Company, or some of them in one way and some of them in another way.
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| 8.4 |
The board of directors may introduce distinctions between holders of the Company's securities in relation to the terms and conditions of allocation of the Company’s securities
and the rights attached to such securities and may also vary such terms and conditions, including waiving some of them. The board of directors may further issue calls to the holders of securities for payment of the money that has not yet
been paid for the securities held by them.
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| 8.5 |
Any payment on account of a share shall be credited initially on account of the nominal value and only then on account of the premium for each share, unless otherwise prescribed
in the terms of the allocation.
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| 8.6 |
A shareholder will not be entitled to his rights as a shareholder, including to a dividend, unless he has paid the amounts in full in accordance with the terms of the
allocation, with the addition of interest, linkage and expenses, if there were any, and all if not otherwise prescribed in the terms of the allocation.
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| 8.7 |
The board of directors may forfeit as well as sell, re-allocate or otherwise transfer any security as it shall decide, in respect of which the full consideration has not been
paid, including for nil consideration.
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| 8.8 |
The forfeiture of a security shall result, at the time of such forfeiture, in the revocation of any right in the Company and any claim or demand against it in relation to such
security, except for such rights and obligations as are excluded from this rule in accordance with these Articles or which the law confers on or imposes on a former shareholder.
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| 9. |
| 9.1 |
The secretary of the Company or whoever is appointed for such purpose by the board of directors of the Company shall be responsible for keeping a Register of the Company's
Shareholders. A shareholder is entitled to receive from the Company, free of charge, within two months after the allocation or the registration of the transfer (unless the terms of the issue stipulate another period of time), one certificate
or a number of certificates, at the Company's discretion, in respect of all the shares that are registered in his name, which shall specify the number of shares, and any other detail that is important in the opinion of the board of
directors. In the event of a jointly held share, the Company shall not be required to issue more than one certificate to all the joint holders, and delivery of such a certificate to one of the joint holders shall be deemed to be delivery to
all of them.
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6
| 9.2 |
The board of directors may close the register of shareholders for a total period of up to 30 days annually.
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| 9.3 |
Every certificate shall bear the seal or stamp of the Company or its printed name and shall bear the signature of one director and the Company secretary, or of two directors or
of any other person who has been appointed by the board of directors for such purpose.
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| 9.4 |
The Company may issue a new certificate in lieu of a certificate that was issued and was lost, defaced, or destroyed, on the basis of
such proof and guarantees as the Company may require, and after payment of an amount that shall be prescribed by the board of directors and the Company may also, in accordance with a resolution of the board of directors, replace existing
certificates with new certificates free of charge subject to such conditions as the board of directors shall stipulate.
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| 9.5 |
Where two or more persons are registered as the joint holders of a share, each of them may confirm receipt of a dividend or other payments for such share and his confirmation
will bind all holders of such share.
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| 9.6 |
The Company is entitled to recognize a holder of a share as a trustee and to issue a share certificate in the name of the trustee provided that the trustee has notified the
Company of the identity of the beneficiary of the trust. The Company will not be bound to or be required to, recognize a right that is based on the rules of equity or a right that is subject to a condition, or a future right or a partial
right to a share, or any other right in relation to a share, other than the absolute right of the registered holder in respect of any share, unless this is done on the basis of a judicial decision or in accordance with the requirements of any
law.
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| 10. |
| 10.1 |
The Company shares are transferable.
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| 10.2 |
No transfer will be registered of shares that are registered in the register of shareholders in the name of a registered shareholder, unless an original,
signed deed of transfer of the shares has been submitted to the Company (hereinafter: "deed of transfer"), unless otherwise stipulated by the board of directors
of the Company. The deed of transfer shall be drawn up in the form set out hereunder or in such other format as is as similar as possible to it or in another format which shall be approved by the board of directors.
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7
===========================================================================================================================================================================================================
Deed of Transfer
I, _______________ Identity Card No. / Corporate No. ____________________ (hereinafter: "the transferor")
of _______________ hereby transfer to _________________ Identity Card No. / Corporate No. ____________________ (hereinafter: "the transferee") of _________________ in consideration of the sum of NIS
__________________ that he has paid to me, ________ shares, each having a nominal value of NIS _________, which are marked by the numbers ______ to ___________ inclusive, of _____________Ltd. (hereinafter: "the
Company"), and they shall be in the possession of the transferee, his estate administrators, guardians, and his duly authorized representatives, in accordance with the conditions under which I personally held the shares at the time of
signature of this deed, and I, the transferee, agree to accept the said shares in accordance with the conditions set out above and subject to the Company's Articles, such as they are from time to time.
In Witness Whereof we have signed, this __ day of the month of _____, in the year _____
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Transferor -
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Transferee
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Name: ______________
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Name: ______________
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Signature: ______________
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Signature: ______________
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Witness to the Transferor's Signature:
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Witness to the Transferee's Signature:
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Name: ________, Advocate
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Name: ________, Advocate
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Signature: ____________
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Signature: ____________
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===========================================================================================================================================================================================================
Neither a transfer of non-fully paid up shares or of shares over which the Company has a lien or a charge shall be valid
unless it has been approved by the board of directors, which may, at its absolute discretion and without giving any reasons, refuse to register such a transfer.
The board of directors may refuse a transfer of shares as aforesaid and the board of directors may also make such a transfer
of shares conditional on an undertaking by the transferee, in such scope and in such manner as the board of directors shall stipulate, or settle the transferor's liabilities in respect of such shares or the liabilities in respect of which the Company
has a lien or a charge over such shares.
| 10.3 |
The transferor shall continue to be deemed to be the holder of the shares being transferred until such time as the name of the transferee is registered in the Company's register
of shareholders.
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| 10.4 |
A deed of transfer shall be submitted to the registered office of the Company for registration together with the certificates of registration of the shares that are about to be
transferred (if such certificates have been issued) and any other proof which the Company shall require as to the title of the transferor to such shares or his right to transfer them.
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| 10.5 |
A joint shareholder who wishes to transfer his right in a share but is not in possession of the share certificate, will not be bound to attach the share certificate to the
transfer deed provided that in the transfer deed it is stated that the transferor is not in possession of the share certificate in respect of the share in which his right is being transferred and that the share being transferred is held
jointly with others, together with their particulars.
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| 10.6 |
The Company may require payment of a fee for registration of the transfer of such an amount or at such rate as the board of directors shall determine from time to time.
|
1 So long as the Company shares are listed for trading on the stock exchange, the Company shares will be registered in the name of
the nominee company and the share transfer will be carried out via the nominee company and not as prescribed in Sub-Articles 10.1-10.4 of these Articles.
8
| 10.7 |
Upon the death of a holder of shares in the Company, the Company will recognize guardians, estate administrators or executors, and if there are no such persons, the lawful heirs
of the shareholder, as parties with the sole right to the shares of the shareholder, after the entitlement thereto is substantiated in such manner as shall be determined by the board of directors.
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| 10.8 |
In the event that a deceased shareholder held shares jointly with others, the Company will recognize the survivor as a shareholder in respect of the said shares, unless all the
joint holders of the share have notified the Company in writing prior to the death of one of them, of their wish that the provisions of this Article shall not apply, provided that this shall not absolve the estate of a joint holder of a share
from any obligation whatsoever that the joint holder would have had in respect of such share had he not passed away.
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| 10.9 |
A person who acquires a right to shares by virtue of being a guardian, estate administrator, heir of a shareholder, a receiver, liquidator or trustee in bankruptcy of a
shareholder or in accordance with any other legal provision, may, if and when he proves his right as such may be required by the board of directors, be registered as the shareholder or may transfer such shares to another person, subject to
the provisions of the Articles in relation to a transfer.
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| 10.10 |
A person who acquires a right to a Share as a result of a transfer thereof by operation of law, will be entitled to a dividend and to the other rights in respect of such share
and he may also accept and give receipts for a dividend or for other payments payable in respect of such share; however, he will not be entitled to receive notices regarding the general meetings of the Company (insofar as such a right
exists), and to participate at or vote at such meetings in connection with such share or to exercise any right whatsoever, which the share confers, except as aforesaid, until after he is registered in the register of shareholders.
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| 11. |
The Company will not issue bearer share warrants.
| 12. |
| 12.1 |
The Company shall have a first charge and a lien over all the shares that are not fully paid up, which are registered in the name of any shareholder, and over the proceeds of
sale thereof, in relation to monies (whether or not the time for payment thereof has fallen due), payment of which has already been called or which are to be paid at a fixed time in respect of such shares. The Company shall also have a first
charge over all the shares (except fully paid up shares) that are registered in the name of any shareholder as security for monies that are due from him or from his assets, whether his liability is individual or jointly with others. The said
charge shall also apply over such dividends as have been declared from time to time in respect of such shares.
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| 12.2 |
The board of directors may sell the shares to which the charge applies for the purpose of realizing the charge and lien, or any part thereof, in any manner as it sees fit. No
such sale shall proceed until after written notification has been given to such shareholder as to the intention of the Company to sell them, and the amounts have not been paid within fourteen days after such notification. The net proceeds of
any such sale, after payment of the sale expenses, shall be utilized in discharging the debts or obligations of such shareholder and the balance (if any remains) shall be paid to him.
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9
| 12.3 |
Where a sale of shares has occurred in order to realize a charge or a lien by the prima facie exercise of the powers vested as
aforesaid, the board of directors may register such shares in the register of shareholders, in the name of the purchaser, and the purchaser will be under no obligation to examine the propriety of the transaction or the way in which the
purchase price is used. Following registration of the said shares in the register of shareholders in the name of the purchaser, no person shall have the right to challenge the validity of the sale.
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| 13. |
The general meeting may resolve at any time to take one of the following actions, provided that a resolution of the general
meeting as aforesaid has been adopted by a simple majority.
| 13.1 |
Increase of the Registered Share Capital
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To increase the registered share capital of the Company, irrespective of whether or not all the shares registered at that
time have been issued. The increased capital will be divided into ordinary shares with equal rights.
| 13.2 |
Consolidation and Division of Share Capital
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To consolidate and re-divide some or all of its share capital into shares of a greater or smaller nominal value than that
which is specified in the Articles. In a case in which, as a result of such consolidation, shareholders whose shares have been consolidated are left with fractions of shares, the board of directors may, if it receives approval thereto from the
general meeting in the resolution as to consolidation of capital as aforesaid:
| A. |
Sell the aggregate of all the fractions, and for this purpose appoint a trustee in whose name the share certificates containing the fractions shall be issued, and the trustee
shall sell the said fractions, and the proceeds received less commissions and expenses shall be distributed to eligible shareholders. The board of directors will be entitled to decide that shareholders who are entitled to the consideration,
which is less than an amount that it shall stipulate, will not receive a consideration from the sale of the said fractions, and their share in the sale proceeds shall be distributed among such shareholders who are entitled to a consideration
that exceeds the stipulated amount, pro rata to the consideration to which they are entitled;
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| B. |
To allocate to all holders of shares in respect of whom the consolidation and the re-division leaves them with a fraction of a share, shares of the class of shares which, before
such consolidation, are fully paid up, in such a number that their consolidation with the fraction will be sufficient for one complete consolidated share, and such an allocation shall be deemed as being effective immediately prior to such
consolidation;
|
2 Subject to the provisions of Section 46.B. of the Securities Law, pursuant to which so long as the Company's shares are listed for
trading on the Stock Exchange, the Company's share capital will consist of one class of shares.
10
| C. |
Determine that shareholders shall not be entitled to receive a consolidated share in respect of a fraction of a consolidated share, which derives from the consolidation of half
or less of the number of shares whose consolidation creates one consolidated share, and they shall be entitled to receive a consolidated share in respect of a fraction of a consolidated share which derives from the consolidation of more than
half of the number of shares whose consolidation creates one consolidated share.
|
In the event that an action taken in accordance with sub-paragraphs (b) or (c) above requires the issue of additional
shares, payment therefor shall be made in the manner in which bonus shares may be repaid. Consolidation and division as aforesaid shall not be deemed to be a variation of the rights of the shares forming the subject of the consolidation and
division.
| 13.3 |
Cancellation of Un-allocated Registered Share Capital
|
To cancel registered share capital which has not yet been allocated provided that the Company is under no obligation to allocate such shares.
| 13.4 |
Split of Share Capital
|
To split some or all of the Company's share capital, into shares with a smaller nominal value than that which is prescribed
in the articles of association by division of some or all of the Company shares, at that time.
Chapter Three - General Meetings
| 14. |
| 14.1 |
Subjects within the authority of the General Meeting
|
Resolutions of the Company in respect of the following matters shall be passed by the general meeting:
| 14.1.1 |
Changes to the Articles.
|
| 14.1.2 |
Exercise of the powers of the board of directors, provided that the general meeting has decided by a majority of 75% of the votes of shareholders who are entitled to vote and
have voted either in person or by proxy, that the board of directors is incapable of exercising its powers and further that the exercise of its powers is essential for the proper management of the Company.
|
| 14.1.3 |
Approval of actions or transactions requiring approval of the general meeting pursuant to the provisions of Sections 255 and 268 to 275 of the Companies Law.
|
| 14.1.4 |
Any decision that, by law or under the Articles, must be passed by a resolution of a general meeting.
|
11
| 14.1.5 |
Any power which, by law, is vested in the general meeting.
|
| 14.2 |
Power of the General Meeting to Transfer Powers between the Company's Organs
|
The general meeting may by a majority of 75% of the votes of shareholders who are entitled to vote and have voted either in
person or by proxy, assume such powers as are vested in another organ and may also transfer powers that are vested in the general manager to the authority of the board of directors, and all either in respect of a particular matter or for a particular
period of time which shall not exceed the period of time required under the circumstances.
| 15. |
| 15.1 |
Notice of a General Meeting
|
The Company is not obliged to give notice of a general meeting to shareholders except in so far as this is mandatory by law.
The notice of a general meeting shall specify the place and the time for the convening of the meeting, its agenda, a summary
of the proposed resolutions and any other detail as may be required under law.
| 16.1 |
Quorum
|
No general meeting may proceed unless a quorum is present at the time of the deliberation. Two shareholders who are present
in person or by proxy and who hold or represent at least twenty five percent (25%) of the voting rights in the Company shall constitute a quorum. For the purpose of a quorum, a shareholder or his proxy, who also acts as proxy for other shareholders,
shall be deemed to be two or more shareholders, depending on the number of shareholders that he represents.
| 16.2 |
Postponement of the General Meeting in the Absence of a Quorum
|
Where half an hour has elapsed from the time designated for the meeting and no quorum is present, the meeting shall be
postponed to the business day following the day of the meeting, at the same time and at the same place or to such other day, time and place as shall be prescribed by the board of directors in a notification to the shareholders. The Company shall
give notice, via an immediate report, of postponement of the meeting and the time of the holding of the adjourned meeting.
Where no quorum is present at such adjourned meeting as aforesaid, at least one shareholder, who is present either in person
or by a proxy, shall be deemed as a quorum, except where such meeting has been called at the demand of shareholders.
| 16.3 |
Chairman of the General Meeting
|
The Chairman of the board of directors shall chair any general meeting, and, in his absence, it shall be chaired by whoever
is appointed for such purpose by the board of directors. In the absence of a chairman, or if he has not appeared at the meeting after 15 minutes from the time designated for the meeting, the shareholders present at the meeting shall, in person or by
proxy, elect one of the directors or the officeholders of the Company present at the meeting as chairman, or if no director or officeholder is present, or where all of them refuse to chair the meeting, one of the shareholders present, or one of the
officeholders present, shall be elected to chair the meeting.
12
The chairman of the meeting shall not have an additional or casting vote.
The decision by the chairman that a resolution at the general meeting was passed unanimously or by a specific majority or
was rejected and the minutes of the general meeting signed by the chairman shall serve as prima facie evidence of that stated therein.
| 17. |
| 17.1 |
Majority - resolutions at the general meeting shall be passed by a simple majority unless another majority is required by law or in accordance with the provisions of
Articles 6, 14.1.2, 14.2, 19.1, 19.2.5 and 19.2.6 of these Articles. Checking the majority will be carried out by means of counting of votes, where each shareholder will have one vote per each share held by him.
|
| 17.2 |
Confirmation of title - a shareholder must furnish the Company with confirmation of title at least two business days prior to the date of the general meeting. The
Company may waive such requirement.
|
| 17.3 |
Vote of a legally incapacitated party - a legally incapacitated party may only vote by a trustee, natural guardian or other legal guardian. Such persons may vote either
in person or by proxy.
|
| 17.4 |
Vote of joint holders of a share - where two or more shareholders are the joint holders of a share, one of them shall vote, either in person or by proxy. Where more than
one joint holder wish to participate in a vote, only the first of the joint holders will be able to vote. For such purpose the first of the joint holders shall be deemed to be the person whose name is recorded first in the register of
shareholders.
|
| 17.5 |
The manner of voting and the counting of votes shall be done in accordance with the provisions of the Companies Law. A resolution at a general meeting shall be passed if it has
received such majority as it is required to receive under law or in accordance with the provisions of these Articles.
|
| 18. |
| 18.1 |
Voting by Proxy
|
A shareholder may appoint a proxy to participate in and vote in his place, either at a particular general meeting or
generally at the general meetings of the Company, provided that the written document authorizing the appointment of a proxy has been delivered to the Company at least 48 hours prior to the date of the general meeting, unless the Company has waived
such requirement. A proxy need not be a shareholder of the Company.
If such proxy is not for a particular general meeting, a proxy that has been deposited prior to one general meeting shall
also hold good for other subsequent general meetings.
13
The foregoing shall also apply to a shareholder that is a corporation and which appoints a person to participate in and vote
in its place at the general meeting.
| 18.2 |
Format of the Proxy
|
The proxy shall be signed by the shareholder or by the person who is duly authorized in writing for such purpose, and where
the appointing party is a corporation it shall be signed in such manner as binds such corporation. The Company may require that it be furnished with written confirmation to its satisfaction as to the fact of the due authority of the signatories to
bind such corporation. A proxy shall be drawn up in the form specified hereunder. The Company secretary or the board of directors of the Company may, at their discretion, accept a proxy in a different form, including in the English language,
provided that the variations are not fundamental. The Company will only accept an original proxy or a copy of the proxy, provided that the same is duly authenticated by a notary or by an attorney at law holding an Israeli license.
===========================================================================================================================================================================================================
Proxy
|
To:
|
Date: _____________________
|
[Name of Company
Corporate address:]
Dear Sir or Madam;
Re: Annual / special general meeting of _______________ (the "Company")
to be held on (The "Meeting")
I the undersigned ____________________, Identity Card/Registration No. _______, of _____________Street ________________
being the registered holder of _____________(*) ordinary shares of NIS____ par value each, hereby empower _________________ Identity Card No. (**)_________________ and/or _________ Identity Card No. _____________and/or ______________Identity Card No.
__________to participate in and vote on my behalf and instead of me at the aforementioned meeting and at any adjourned meeting of the aforesaid meeting of the Company/at any general meeting of the Company, until I notify you otherwise.
________
Signature
_________________________
| (*) |
A registered shareholder may issue a number of proxies, each of them in reference to another quantity of shares of the Company held by him, provided that he shall not issue
proxies for a quantity of shares that is greater than the quantity of shares held by him.
|
| (**) |
In the event that the proxy does not hold an Israeli Identity Card, both the passport number and the country of its issue shall be stated instead.
|
===========================================================================================================================================================================================================
| 18.3 |
Validity of Proxy
|
A vote in accordance with a proxy shall be lawful even if the appointing party has previously died or has become legally
incapacitated or has become bankrupt or, in the event of a corporation - has been wound up, or has cancelled the proxy, or transferred the share in respect of which it was given, other than if notification in writing that such an event has occurred
has been received at the registered office of the Company prior to the meeting.
14
| 18.4 |
Disqualification of Proxies
|
Subject to the provisions of any law, the Company secretary will be entitled at his discretion, to disqualify proxies if a reasonable concern
exists that they are forged or that they have been furnished in respect of shares for which other proxies have been issued.
| 18.5 |
Voting by Voting Papers
|
In accordance with these Articles and the provisions of the Companies Law and the regulations enacted thereunder, the
Company shareholders shall be given the option to vote at general meetings of the Company by means of voting papers, on all such matters as are obligatory by law as well as on such matters in respect of which the board of directors shall decide from
time to time to allow a vote by means of voting papers.
Chapter Four - The Board of Directors
| 19. |
| 19.1 |
The number of directors - the number of directors of the Company shall not be less than five (5) and not more than eleven (11) (including anyoutside directors whose
appointment is required under law), unless otherwise decided by the general meeting by a majority of 75%.
|
| 19.2 |
Appointment of Directors at an Annual Meeting and their Replacement
|
| 19.2.1 |
The Company directors serving in office (who are not outside directors), will be divided into three groups, one third each, which will hereinafter be referred to as: the "First third to the Third Third") as nearly equal in number as practicable. The initial division into thirds will be carried out pursuant to the board of directors' resolution with respect to such
division. Should the number of directors vary, the number of directors in each group will vary in accordance with the aforesaid rule.
|
| 19.2.2 |
At the first annual meeting of the Company shareholders to be held after the Company has become a public company (in 2011), the office of the directors included in the first
third will terminate and they will be put up for re-appointment at that meeting.
|
At the second annual meeting of the Company shareholders to be held after the Company has become a public company (in
2012), the office of the directors included in the second third will terminate and they will be put up for re-appointment at that meeting.
At the third annual meeting of the Company shareholders to be held after the Company has become a public company (in 2013),
the office of the directors included in the third will terminate and they will be put up for re-appointment at that meeting.
15
At the three subsequent annual general meetings the aforesaid mechanism will reapply, and so on and so forth.
Any director elected as aforesaid, will be elected for a three-year term (unless his office is terminated in accordance
with the provisions of these Articles), so that every year the office of a group of one third of the board of directors will terminate, as aforesaid.
Directors may be elected for a term of less than three years in order to ensure that the three groups of directors have as
equal number of directors as possible as provided in Sub-Article 19.2.1 above.
Notwithstanding the foregoing, the term of office of any director elected to the Company's board of directors, and
originally nominated for election by virtue of the nomination right granted to any investor who purchased, in the Company's public offering which closed on December 27, 2016, together with its affiliates (as such term is defined in Rule 405 of the
Securities Act of 1933, as amended), at least $15 million of ADSs and warrants (excluding the proceeds, if any, from the exercise of warrants), shall automatically expire at the first annual meeting of the Company shareholders following the annual
meeting of the Company shareholders held in May 2017 unless such investor, at least 75 days prior to such first following annual meeting of shareholders evidences to the Company its beneficial ownership, together with its affiliates, of at least 4%
of the Company's outstanding shares. If not so expired at the first annual meeting of the Company shareholders following the annual meeting held in May 2017, the term of office of such director shall automatically expire at the second annual meeting
of the Company shareholders following the annual meeting of the Company shareholders held in May 2017 unless such investor, at least 75 days prior to such second following annual meeting of shareholders, evidences to the Company its beneficial
ownership, together with its affiliates, of at least 4% of the Company's outstanding shares. In any event, the term of office of such director shall automatically expire at the third annual meeting of the Company shareholders following the annual
meeting held in May 2017 unless re-elected by the Company's shareholders.
The elected directors shall assume their office commencing from the end of the meeting at which they were elected unless a
later date is stipulated in the resolution on their appointment.
| 19.2.3 |
The appointment of members of the board of directors (who are not outside directors), will be carried out by the shareholders present at the meeting, in person or by proxy, or
by means of a voting paper, by a simple majority of the votes of the shareholders as aforesaid.
|
| 19.2.4 |
If a director who was put up for re-appointment at the general meeting convened to deliberate same is not re-elected, the Company will convene another general meeting, at which
another proposed director will be put up for the approval of the meeting. Notwithstanding the foregoing, the office of the director who has not been re-appointed or his alternate (insofar as he has appointed an alternate in accordance with
the provisions of these Articles), will expire on the earlier of: (1) The additional general meeting as aforesaid; or (2) seventy days from the date of the annual general meeting as aforesaid in Sub-Article 19.2.2 above. It shall further be
clarified that a director appointed as aforesaid will belong to the group of the third to which the director he replaced belonged, so that his office will expire on the date of the general meeting at which the office of the other directors of
that third group will expire.
|
16
| 19.2.5 |
The general meeting may, at any time, by a majority of 75%, dismiss a director and it may decide at that time to appoint another person in his place by a majority of 75%. A
director whose dismissal is on the agenda of the meeting will be given a reasonable opportunity to present his position before such meeting.
|
| 19.2.6 |
A special meeting of the Company may appoint directors for the Company in lieu of directors whose office has terminated and also in
any case in which the number of members of the board of directors falls below the minimum that has been stipulated in these Articles or by the general meeting by a majority of 75% of the shareholders' votes. It should be clarified that a
director appointed as aforesaid will belong to the group of the third to which the director he replaced belonged, so that his office will expire on the date of the general meeting at which the office of the other directors of that third group
will expire.
|
| 19.2.7 |
The foregoing provisions of Sub-Articles 19.2.1 - 19.2.6 shall not apply to the appointment and term in office of outside directors, in respect of whom the provisions of the
Companies Law shall apply.
|
| 19.2.8 |
Subject to the provisions of the law in relation to the expiry of the office of a director, but notwithstanding the provisions of Section 230 of the Companies Law, the office of
a director shall not be terminated, other than as provided in this Article.
|
| 19.3 |
Appointment of Directors by the Board of Directors
|
The board of directors may appoint a director or additional directors for the Company, whether in order
to fill an office that has become vacant for any reason whatsoever or whether in the capacity of a director or additional directors, provided that the number of directors shall not exceed the maximum number of members of the board of directors. Any
director so appointed shall serve up to the first annual meeting held subsequent to his appointment. In the event that the number of directors has fallen below the minimum number of directors, as prescribed in Sub-Article 19.1 above, the remaining
directors may only act to convene a general meeting of the Company for the purpose of appointing the vacant positions of directors and up to the date of such meeting, act to conduct the Company's affairs in connection with matters that are pressing.
| 19.4 |
Date of Commencement of the Office of a Director - the elected directors shall assume their offices commencing at the end of the general meeting at which they were
elected or on the date of their appointment by the board of directors as provided above in Sub-Article 19.3, as the case may be, unless a later date is prescribed in the resolution on their appointment.
|
17
| 19.5 |
Alternate Director - subject to the provisions of the law, a director may from time to time appoint an alternate director for himself (hereinafter: "alternate director"), dismiss such an alternate director, and may also appoint another alternate director in lieu of any
alternate director whose office has been vacated for any reason, either for a specific meeting or permanently.
|
| 19.6 |
A Director's Proxy - any director and any alternate director may appoint a proxy who shall participate and vote in their name at, any meeting of the board of directors or
of a board of directors’ committee. Such an appointment may be general or for the purpose of one or a number of meetings. Where a director or an alternate director is present at such a meeting the proxy may not vote in lieu of the director who appointed him. Such an appointment shall be valid in accordance with the contents thereof or until its revocation by the appointor. A director or an alternate director of the Company may serve
as a proxy as aforesaid.
|
| 19.7 |
Termination of the Office of a Director - in the event of a director's position becoming vacant, the remaining directors may continue acting for as long as the number of
remaining directors does not fall below the minimum number of directors that has been determined in these Articles or prescribed by the general meeting. If the number of directors has fallen below the foregoing, the remaining directors may
only act in order to convene a general meeting of the Company.
|
| 19.8 |
Holding a Meeting by means of Communication and Without Convening
|
At a meeting that has been held by the use of any means of communication, it is sufficient that all of the directors who are
entitled to participate in the proceedings and in a vote, shall be able to hear each other.
The board of directors may also pass resolutions without actually convening, provided that all of the directors who are
entitled to participate in the discussion and to vote on the matter put forward for resolution have agreed not to meet to discuss such matter. Where resolutions have been passed as aforesaid, minutes of such resolutions shall be prepared, including
the resolution not to convene and shall be signed by the chairman of the board of directors. The provisions of these Articles shall apply mutatis mutandis to such a resolution. A resolution that has been passed in accordance with this Article shall be valid in all respects as though it had been passed at a duly convened and conducted meeting of the board of directors.
| 19.9 |
Remuneration of Members of the Board of Directors - subject to the provisions of the Companies Law the Company may remunerate the Directors for fulfilling their functions
as directors.
|
| 20. |
| 20.1 |
Appointment - the board of directors shall elect one of its members to serve as chairman of the board of directors and will also designate the term in which he is to
serve in his office, in the appointing resolution. If not stipulated otherwise in the resolution as to his appointment, the chairman of the board of directors shall serve in such capacity until another person is appointed in his place or
until he ceases serving as a director, whichever is the earlier.Where the chairman of the board of directors has ceased serving in office as a director of the Company, the board of directors, at the first board of directors meeting held
subsequently, shall elect a new chairman.
|
18
| 20.2 |
No Casting Vote - In the event of a tie of votes in a resolution of the board of directors, neither the chairman of the board of directors nor any person that has been
elected to conduct the meeting, shall have an additional vote.
|
| 21. |
| 21.1 |
Convening a Meeting of the Board of Directors
|
Any notification of a meeting of the board of directors may be given verbally or in writing provided that such notification
is given at least three business days prior to the date designated for the meeting, unless at least 75% of the members of the board of directors, their alternates or their proxies have agreed to shorten the said period of time. The aforesaid
notwithstanding, the board of directors may convene for a meeting without notice only in urgent cases and with the consent of a majority of the directors.
Notification as aforesaid shall be given in writing, by facsimile, by electronic mail or by other means of communication and
all to such address or the facsimile number, electronic mail address or the address to which notifications can be sent by other means of communication, as the case may be, which the Director furnished to the Company upon his appointment, or in a
subsequent written notification to the Company and shall include reasonable details regarding the issues brought up for discussion at the meeting
Where an alternate or a proxy has been appointed, notification shall be given to such alternate or proxy unless the director
has given notice that he wishes that notice shall also be given to him.
| 21.2 |
Quorum - the quorum for meetings shall be a majority of members of the board of directors who are not precluded by law from participating in a meeting, or any other
quorum as will be prescribed by a majority of the members of the board of directors from time to time.
|
| 21.3 |
Validity of Actions of the Directors in the case of a Disqualified Director - All such actions as have been taken in good faith at a meeting of the board of directors or
by a committee of the board of directors or by any person acting as a director shall be valid, even if it is subsequently discovered that there was a flaw in the appointment of a director or of such a person acting as aforesaid, or that they
or one of them was disqualified, as though such a person had actually been duly appointed and was qualified to be a director.
|
| 21.4 |
Committees of the Board of Directors
|
Subject to the provisions of the Companies Law, the board of directors may appoint board of directors’ committees.
The committees of the board of directors shall report to the board of directors their resolutions or recommendations on a
regular basis, as shall be prescribed by the board of directors. The board of directors may cancel the resolution of a committee that has been appointed by it; however, such cancellation shall not affect the validity of any resolution of a committee,
pursuant to which the Company acted, vis-à-vis another person, who was not aware of the cancellation thereof. Decisions or recommendations of the committee of the board of directors which require the approval
of the board of directors will be brought to the directors' attention a reasonable time prior to the discussion at the board of directors.
19
| 22. |
| 22.1 |
Subject to the provisions of any law, all such actions as have been taken by the board of directors or by a committee of the board of directors or by any person acting as a
director, or as a member of a committee of the board of directors, or by the general manager, as the case may be, shall be valid even if it is subsequently discovered that there was any flaw in the appointment of the board of directors, a
committee of the board of directors, the director who was a member of the committee or the general manager, as the case may be, or that any of the aforesaid officeholders was disqualified from serving in his position.
|
| 22.2 |
Subject to the provisions of the Companies Law:
|
| 22.2.1 |
If a person holds shares in the Company and if a person is an officeholder of the Company, a stakeholder, or an officeholder of any other corporation, including a corporation in
which the Company is a stakeholder, or which is a shareholder of the Company, it shall not disqualify the officeholder from serving as an officeholder of the Company. Likewise, an officeholder shall not be disqualified from serving as an
officeholder of the Company due to his contractual engagement or due to the contractual engagement of any corporation as aforesaid with the Company in any matter whatsoever and in any manner whatsoever.
|
| 22.2.2 |
The office of a person as an officeholder in the Company shall not disqualify him and/or a relative of his and/or another corporation in which he is a stakeholder from entering
into transactions in which the officeholder has a personal interest in any way with the Company.
|
| 22.2.3 |
An officeholder may participate in and vote at discussions in respect of the approval of transactions or acts in which he has a prima facie personal
interest, as prescribed in Sub-Articles 22.2.1 and 22.2.2.
|
| 22.3 |
Subject to the provisions of the Companies Law, a general notice that is given to the board of directors by an officeholder or a controlling shareholder of the Company with
regard to his personal interest in a particular entity, while giving details of his personal interest, shall amount to disclosure on the part of the officeholder or the controlling shareholder to the Company with regard to his personal
interest as aforesaid, for the purpose of the entering into any transaction which is not exceptional, with such an entity.
|
20
Chapter Five – Officeholders, Secretary, Internal Auditor and Auditor
| 23. |
| 23.1 |
The board of directors may, from time to time, appoint a general manager for the Company and may further appoint more than one general manager. The board of directors may
further dismiss the general manager or replace him at any time it deems fit, subject to the provisions of any agreement between him and the Company. The general manager will be responsible for the day-to-day management of the Company's
affairs within the framework of the policy determined by the board of directors and subject to its directives.
|
| 23.2 |
The general manager will have all the powers of management and performance that were vested, pursuant to the Law or these Articles, or by virtue thereof, in another organ of the
Company, apart from such powers as have been transferred from him to the board of directors. The general manager will be supervised by the board of directors.
|
| 23.3 |
The general manager may, subject to the approval of the board of directors, delegate some of his powers to another, who is his subordinate; the approval may be general and in
advance.
|
| 23.4 |
Without derogating from the provisions of the Companies Law and any law, the general manager will submit to the board of directors, reports on such issues, on such dates and in
such scope as shall be determined by the board of directors, either by means of a specific resolution or within the ambit of the board of directors' procedures.
|
| 23.5 |
The general manager will give notice to the chairman of the board of directors, without delay, of any exceptional matter that is material to the Company. If the Company has no
chairman of the board of directors or if the chairman of the board of directors is unable to fulfill his function, the general manager will give a notice to that effect to all members of the board of directors.
|
| 23.6 |
The general manager may from time to time appoint officeholders for the Company (apart from directors and general manager), for permanent, temporary or special functions, as the
general manager finds fit and the general manager may further terminate the services of one or more of the foregoing at any time.
|
| 24. |
| 24.1 |
The Company's board of directors will appoint an internal auditor, at the recommendation of the audit committee.
|
| 24.2 |
The officer in charge of the internal auditor at the organization will be the chairman of the board of directors.
|
| 24.3 |
The internal auditor will submit for the approval of the audit committee a proposed annual or periodic work plan and the audit committee will approve it with such amendments as
it finds fit.
|
21
| 25. |
The board of directors may appoint a Company secretary, on such terms as it shall deem appropriate, and appoint a deputy
secretary and determine the scope of their functions and their authorities. Where a Company secretary has not been appointed, the general manager, or whoever he designates to this end, and in the absence of a general manager, whoever is empowered for
such purpose by the board of directors, shall perform the secretary's functions that are prescribed under any law, in accordance with these Articles and in accordance with a resolution of the board of directors.
The Company secretary will be responsible for all the documents that are kept at the registered office of the Company and
for maintaining all the registers that the Company maintains by law.
| 26. |
| 26.1 |
Subject to the provisions of the Companies Law, the general meeting may appoint an auditor for a period that exceeds one year, as the general meeting shall decide.
|
| 26.2 |
The board of directors, following receipt of the audit committee's or the financial statement committee's (as determined by the board of directors) recommendations shall
determine the remuneration of the Company's auditor for audit work as well as his remuneration for other services that are not audit work, unless otherwise determined by the general meeting of the Company.
|
Chapter Six - Preservation of the Capital of the Company and its Distribution
| 27. |
The Company's resolution on distribution of dividend, bonus shares or any other distribution, including any distribution
that does not comply with the profit test prescribed in the Companies Law and the terms thereof, shall be passed by the board of directors of the Company.
| 28. |
| 28.1 |
Right to a Dividend or to Bonus Shares
|
| 28.1.1 |
A dividend or bonus shares shall be distributed to whoever is registered in the register of shareholders of the Company on the date of the resolution as to such distribution or
on such other date as shall be prescribed in such resolution.3
|
| 28.2 |
Payment of the Dividend
|
| 28.2.1 |
The board of directors may resolve that the dividend be paid, in whole or in part, in cash or by means of distribution of assets in kind, including in securities or in any other
manner, at its discretion.
|
3 It shall be clarified that so long as the Company shares are listed for trading on the Stock Exchange, any dividend or bonus
shares will be distributed to whoever is registered in the register of shareholders of the Company on the effective date determined on the date of the resolution.
22
|
The Company’s board of directors may, before resolving to distribute any dividend, allocate out of the profits, any amounts as it
shall deem fit for a general fund or a reserve fund for the distribution of dividend, distribution of bonus shares or for any other purpose whatsoever, as the board of directors shall resolve at its discretion.
Pending the realization of the said funds, the board of directors may invest any sums so allocated and the monies in the funds in any
investment whatsoever, as it shall deem fit, deal with such investments, alter them or make any other use thereof, and it may subdivide the reserve fund into special funds and use any fund or any part thereof for the Company's affairs,
without holding it separately from the other assets of the Company, all at the discretion of the board of directors and under such terms as it shall determine.
|
| 28.2.2 |
The Method of Payment4
|
|
If no other provisions have been prescribed in the resolution as to distribution of the dividend it will be permissible to pay
any dividend, after deduction of the requisite tax under any law, by check to the beneficiary only, which shall be sent by registered mail to the registered address of the shareholder that is entitled to it, or by bank transfer. Any
such check shall be drawn in favor of the person to whom it has been sent. A dividend in kind shall be distributed as stipulated in the distribution resolution.
In the event of joint registered shareholders, the check shall be sent to the shareholder whose name is recorded first in the
register of shareholders in relation to the joint ownership.
Sending of a check to a person whose name, on the effective date, is registered in the register of shareholders as the holder of
a share, or in the event of joint holders - of one of the joint holders, shall constitute discharge in respect of all the payments made in relation to such share.
The Company may resolve that a check below a certain amount, shall not be sent and amounts of the dividend that should have been
paid as aforesaid shall be treated as unclaimed dividend.
The Company may offset against the dividend to which a shareholder is entitled, any debt of such shareholder to the Company,
whether or not the time for payment thereof has fallen due.
|
| 28.2.3 |
Unclaimed Dividend
|
|
The board of directors may invest any amount of dividend that has not been claimed for a period of one year after having been
declared, or use it otherwise for the benefit of the Company until it is claimed. The Company will not be compelled to pay interest or linkage in respect of an unclaimed dividend.
After one year has elapsed from the due date of any unclaimed dividend, the Company may use the unclaimed dividend as aforesaid for
any purpose whatsoever and the shareholder who is entitled to such unclaimed dividend will have no claim and/or demand in relation thereto.
|
4 It should be clarified that so long as the Company shares are listed for trading on the Stock Exchange the provisions of this
Sub-Article 28.2.2 shall not apply.
23
| 28.3 |
Method of Capitalization of Profits into Capital Funds and Distribution of Bonus Shares
|
| 28.3.1 |
Funds
The board of directors may, at its discretion, set aside into special capital funds, any amount out of the Company’s profits, or
arising from a revaluation of its assets, or its pro rata stake in the revaluation of assets of its affiliated companies and determine the designation of such funds. The board of directors may also
cancel such funds.
|
| 28.3.2 |
Distribution of Bonus Shares – Subject to the provisions of the Companies Law, the board of directors may resolve to allocate bonus shares and render share capital as
part of the Company's profits, within the meaning thereof in Section 302 (b) of the Companies Law, from premium on shares or from any other source contained in its equity, referred to in its last financial statements, in such sum as shall be
determined by the board of directors and which shall not fall below the nominal value of the bonus shares.
Allocated bonus shares shall be deemed as fully repaid.
The board of directors resolving to allocate bonus shares may resolve that the Company will transfer to a special fund designated for future distribution of
bonus shares, such amount as the rendering thereof into share capital will be sufficient to allocate to whoever, at that time, for any reason whatsoever, has a right to purchase shares in the Company (including a right exercisable only on a
subsequent date), bonus shares which would have been due to him had he exercised the right to purchase the shares on the eve of the effective date for the right to receive the bonus shares (hereinafter, in this Article: the "effective date"). If after the effective date, the holder of the said right should exercise his right to purchase all or any of the shares, the Company will allocate bonus shares to him, having a par
value and to which he would have been entitled had he exercised the right to purchase the shares which he actually purchased, on the eve of the effective date. The bonus shares will entitle their owners to participate in distribution of
dividends as of the date designated by the board of directors. For the purpose of determining the amount to be transferred to the said special fund, any amount transferred to this fund for previous distributions of bonus shares shall be
treated as having already been capitalized, where shares entitling the holders of the right to purchase shares, have been allocated therefrom, for bonus shares.
For the purpose of distribution of bonus shares, the board of directors may, as it sees fit, resolve any difficulty that might arise and make adjustments,
such as deciding that fractions of a share shall not be distributed, issue certificates in respect of an aggregate quantity of share fractions, sell such fractions and pay the proceeds from the sale thereof to those entitled to receive the
fractions of the bonus shares and may also decide that cash payments shall be made to the shareholders, or that fractions of a lesser value than a stipulated amount (and if not stipulated then amounts which are less than NIS 50) shall not
be brought into account in making such adjustments. Notwithstanding the foregoing, a shareholder will be entitled to apply to the Company and ask that such payment be made to him at the Company's offices.
|
24
| 29. |
The Company may acquire its own securities. Where the Company has acquired securities as aforesaid it may cancel them.
Chapter Seven - Exemption, Indemnification and Insurance of Officeholders
| 30. |
The Company may exempt an officeholder therein, in advance or post factum, from
some or all of his liability for damage as a result of breach of a duty of care vis-à-vis the Company, to the maximum extent that is permissible under any law.
| 31. |
The Company may indemnify its officeholders to the maximum extent permissible under any law. Without derogating from the
generality of the foregoing, the following provisions shall apply:
| 31.1 |
The Company may indemnify an officeholder therein in respect of a liability, payment or expense imposed on him or that he has incurred as a result of an action, which he took by
virtue of his being an officeholder of the Company, as follows:
|
| 31.1.1 |
Any financial liability imposed on him in favor of another person under a judgment, including a judgment entered under a settlement or an award approved by a court.
|
| 31.1.2 |
Reasonable litigation fees, including lawyer’s fee, incurred by the officeholder due to any investigation or proceeding conducted against him by any authority competent to
conduct an investigation or proceeding, at the end of which no indictment was filed against him and no financial liability was levied on him as an alternative for a criminal proceeding, or at the end of which no indictment was filed against
him but a financial liability was levied as an alternative for a criminal proceeding in an offense not requiring proof of mens rea or in connection with a monetary sanction.
|
| 31.1.3 |
Reasonable litigation expenses, including lawyer's fees paid by the officeholder, or with which he was charged by the Court, in a proceeding filed against him by the Company or
on its behalf or by any other person, or in criminal charges from which he was acquitted, or in criminal charges in which he was convicted of an offense which does not require proof of mens rea.
|
25
| 31.1.4 |
A payment for the party harmed by the breach, as aforesaid in Section 52(54)(a)(1)(a) of the Securities Law (the "Party Harmed by the Breach").
|
| 31.1.5 |
Expenses incurred by an officer in connection with an Administrative Proceeding conducted in his matter, including reasonable litigation expenses, including legal fees.
|
| 31.1.6 |
Any other liability or expense for which it is permitted and/or will be permitted by law to indemnify an officeholder.
|
| 31.2 |
Advance Indemnification
|
The Company may give an undertaking in advance to indemnify an officeholder for a liability, payment or expense as specified
above in Sub-Article 31.1.1., provided that such advance indemnity undertaking shall be limited to such events as, in the opinion of the board of directors, are anticipated in view of the Company's actual activity at the time of giving the indemnity
undertaking, and to such amount or criterion as the board of directors have determined to be reasonable under the circumstances of the case, and further provided that such undertaking shall state the events that in the opinion of the board of
directors are anticipated in view of the Company's actual activity at the time of giving such undertaking as well as the amount or criterion that the board of directors have determined to be reasonable in the circumstances of the case. And the Company may also give an indemnity undertaking in advance to an officeholder in respect of liabilities or an expense as specified in Articles 31.1.2, 31.1.3, 31.1.4, and 31.1.5 above.
| 31.3 |
Retroactive Indemnification
|
The Company may indemnify an officeholder therein ex post facto.
| 32. |
| 32.1 |
The Company may insure its officeholders to the maximum extent permitted under any law. Without derogating from the generality of the foregoing, the Company may enter into a
contract for insuring the liability of an officeholder in the Company in respect of a liability or a payment that may be imposed on him as a result of an action that he has taken in his capacity as officeholder in the Company, in any of the
following cases:
|
| 32.1.1 |
Breach of the duty of care to the Company or to any other person;
|
| 32.1.2 |
Breach of a fiduciary duty vis-à-vis the Company, provided that the Officeholder acted in good faith and had reasonable grounds to
assume that his act would not compromise the Company's best interests;
|
| 32.1.3 |
Financial liability imposed on him in favor of another person;
|
| 32.1.4 |
Payment to the Party Harmed by the Breach;
|
| 32.1.5 |
Expenses incurred by an officer in connection with an Administrative Proceeding conducted in his matter, including reasonable litigation expenses, including legal fees;
|
26
| 32.1.6 |
Any other event for which it is permitted and/or will be permitted pursuant to the law to insure the liability of an officeholder.
|
| 33. |
| 33.1 |
It is neither the intention of the foregoing provisions in relation to exemption, indemnification and insurance, nor will there be any future intention, to restrict the Company
in any way from entering into a contract in relation to exemption, insurance or indemnification of the parties specified hereunder:
|
| 33.1.1 |
A person who is not an officeholder of the Company, including employees, contractors or consultants of the Company who are not officeholders of the Company;
|
| 33.1.2 |
Officeholders in other companies. The Company may enter into a contract in relation to exemption, indemnification and insurance of officeholders in companies under its control,
related companies and other companies in which it has any interest, to the maximum extent permitted under any law, and in this context the foregoing provisions in relation to exemption, indemnification and insurance of officeholders in the
Company shall apply, mutatis mutandis.
|
| 33.2 |
It should be clarified that in this Chapter, an undertaking in relation to exemption, indemnification and insurance of an officeholder as aforesaid may also be valid after the
office of such officeholder in the Company has terminated.
|
Chapter Eight - Merger, Winding Up and Reorganization of the Company
| 34. |
| 34.1 |
The requisite majority for approval of a merger by the general meeting shall be a simple majority.
|
| 35. |
| 35.1 |
If the Company is wound up, whether voluntarily or otherwise, the liquidator may, with the approval of a general meeting, distribute in specie
parts of the Company's assets among the shareholders, and he may, with like approval, deposit such part of the Company's assets with trustees for the benefit of the shareholders, as the liquidator, with such approval, shall deem appropriate.
|
| 35.2 |
Subject to special rights of shares, where shares have been issued with special rights, the Company's shares shall have equal rights inter se
in relation to the amounts of capital that have been paid or that have been credited as paid in respect of the nominal value of the shares, in connection with the surrender of capital and participation in a distribution of surplus assets of
the Company upon liquidation.
|
| 36. |
| 36.1 |
Upon the sale of assets of the Company, the board of directors, or the liquidators (in the case of liquidation) may, if they have been duly authorized to do so in a resolution
that has been passed by a simple majority at the general meeting of the Company, accept shares that are either fully or partially paid up, debentures or securities of another company, either Israeli or foreign, whether it has been
incorporated or is about to be incorporated, for the purchase of all or any of the Company's assets, and the directors (if the Company's profits so allow) or the liquidators (in case of a liquidation), may distribute, among the shareholders,
the shares or securities as aforesaid or any other assets of the Company without realizing them, or deposit them with trustees on behalf of the shareholders.
|
27
| 36.2 |
The general meeting may, by a resolution to be passed by the general meeting of the Company by a simple majority, decide as to a valuation of the securities or assets as
aforesaid at such price and in such manner as the general meeting shall decide, and all the shareholders will be bound to accept any valuation or distribution that has been authorized as aforesaid and to waive their rights in this context,
except, in the event that the Company is about to be wound-up or is in the process of winding-up, for such legal rights (if any) which, under the provisions of the law, cannot be amended, revised, or contracted out.
|
Chapter Nine - Notifications
| 37. |
| 37.1 |
A notification or any other document may be delivered by the Company to any shareholder who appears in the register of shareholders of the Company, either personally or by
sending by registered mail addressed in accordance with the registered address of such shareholder in the register of shareholders or to such address as the shareholder has notified in writing to the Company as his address for the delivery of
notifications, or by publication of notices in two newspapers in Israel, or by means of publishing an immediate report on the Magna system.
|
| 37.2 |
All notices to be given to the shareholders shall, in relation to shares that are jointly held, be given to such person whose name appears first in the register of shareholders
and any notification that is given in such manner shall be sufficient notification to all the joint shareholders.
|
| 37.3 |
Any notification or other document which is delivered or sent to a shareholder in accordance with these Articles shall be deemed to have been duly delivered and sent in respect
of all the shares held by him (whether as regards Shares held by him alone or by him jointly with others), even where such shareholder has passed away at that time or became insolvent, or an order has been issued for its winding up, or a
trustee or liquidator or receiver has been appointed for his shares (whether or not the Company was aware of the occurrence of such event), until another person is registered in the register of shareholders instead of him as the holder
thereof, and delivery or sending of a notification or document as aforesaid shall be deemed to be sufficient delivery or dispatch to any person who has a right to such shares.
|
| 37.4 |
Any notification or other document that has been sent by the Company in the mail to an address in Israel shall be deemed to have been delivered within 48 hours from the day on
which the letter containing such notification or document was dispatched at the post office or within 96 hours in the event that the address is overseas, and for the purpose of proving delivery, it shall be sufficient to prove that the letter
containing the notification or the document was duly addressed and was dispatched at the post office. Any notice or document delivered by means of notifications in newspapers or via an immediate report on the Magna system, will be deemed to
have been delivered on the date of publishing the notice or on the date of publishing the immediate report as aforesaid.
|
28
| 37.5 |
The Company is not obliged to give notice of a general meeting to shareholders except in so far as this is mandatory by law. The notice of a general meeting shall specify the
place and the time for the convening of the meeting, its agenda, a summary of the proposed resolutions and any other specification as is required under law.
|
| 37.6 |
Accidental omission in giving notice of a general meeting to any shareholder or non-receipt of a notification as to a meeting or other notification by any shareholder shall not
invalidate a resolution that has been passed at such meeting, or cause the invalidation of processes based on such notification.
|
| 37.7 |
Notices to directors may be given in any manner to be determined by the board of directors.
|
| 37.8 |
Any shareholder and any member of the board of directors may waive his right to receive notification, or his right to receive notification within a specific period of time, and
may agree that a general meeting of the Company or a meeting of the board of directors, as the case may be, shall convene and be held despite his not having received notification or despite such notification not having been received by him
within the required time.
|
| 38. |
| 38.1 |
Unless the Company consents in writing to the selection of an alternative forum:
|
| 38.1.1. |
The federal district courts of the United States shall be the exclusive forum for the resolution of any claim arising under the Securities Act of 1933, as amended; and
|
| 38.1.2. |
The Tel Aviv District Court (Economic Division) shall be the exclusive forum for (A) any derivative action or proceeding brought on behalf of the Company, (B) any action
asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Company to the Company or the Company’s shareholders, or (C) any action asserting a claim arising pursuant to any provision of the Israeli
Companies Law 5759-1999 or the Israeli Securities Law 5728-1968 and providing that any person or entity purchasing or otherwise acquiring or holding any interest in shares of the Company shall be deemed to have notice of and consented to
these provisions.
|
| 38.2. |
Any person or entity purchasing or otherwise acquiring or holding any interest in shares of the Company shall be deemed to have notice of and consented to these provisions
|
29
Exhibit 5.1
Tel Aviv, June 25, 2025
RedHill Biopharma Ltd.
21 Ha’arba’a Street
Tel Aviv, 6473921
Israel
Re: Registration
Statement on Form F-1
Ladies and Gentlemen:
We have acted as special Israeli counsel to RedHill Biopharma Ltd., a company organized under the laws of the State of Israel (the “Company”), in connection with the preparation and filing of a Registration Statement on Form F-1 (the “Registration Statement”) under the Securities Act of 1933, as amended
(the “Securities Act”), to be filed with the Securities and Exchange Commission (the “Commission”). The Registration Statement relates to the proposed resale by the
selling shareholder named in the Registration Statement (the “Selling Shareholder”) of up to 5,596,490 American Depositary Shares (the “ADSs”), each representing
10,000 ordinary shares, no par value per share (the “Ordinary Shares”), of the Company in the aggregate, comprised of (i) up to 5,263,15 ADSs (the “Purchase ADSs”) that
may be issued to the Selling Shareholder from time to time pursuant to the Any Market Purchase Agreement, dated June 20, 2025, between the Company and the Selling Shareholder (the “Purchase Agreement”), which
may include up to 5,263,157 ADSs (the “Prefunded Warrant ADSs”) issuable to the Selling Shareholder upon exercise of prefunded Warrants (the “Prefunded Warrant”) to
purchase Ordinary Shares represented by ADSs in lieu of ADSs, that may be issued by the Company to the Selling Shareholder subject to the terms of the Purchase Agreement as well as (ii) 333,333 ADSs (together with the Prefunded Warrant ADSs, the “Warrant ADSs”) issuable to the selling shareholder upon exercise of that certain unregistered commitment warrant (together with the Prefunded Warrants, the “Warrants”) to
purchase Ordinary Shares represented by ADSs issued to the Investor as consideration for entering into the Purchase Agreement, all as described in the Registration Statement and the prospectus contained therein.
This opinion is being furnished in connection with the requirements of Items 601(b)(5) and (b)(23) of Regulation S-K under the Act, and no opinion is
expressed herein as to any matter pertaining to the contents of the Registration Statement or the prospectus contained therein, other than as expressly stated herein with respect to the issuance of the Ordinary Shares.
In connection with this opinion, we have examined and relied upon the Registration Statement, the Company’s Articles of Association (the “Articles”), and such statutes, regulations, corporate records, documents, certificates, and other instruments that we have deemed relevant and necessary as the basis of our opinions hereinafter expressed. In such
examination, we have assumed: (i) the authenticity of original documents and the genuineness of all signatures; (ii)
the conformity to the originals of all documents submitted to us as copies; (iii) the truth, accuracy, and completeness of the information,
representations, and warranties contained in the corporate records, documents, certificates, and instruments we have reviewed; (iv) the due execution and delivery of all documents where due execution and delivery are a prerequisite to the
effectiveness thereof; (v) the legal capacity of all natural persons. In addition, we have assumed that (i) prior to the issuance of any ADSs under the Purchase Agreement, the price, number of ADSs, dollar amount, and certain other terms of issuance
with respect to any specific purchase notice delivered under the Purchase Agreement will be authorized and approved by the Board of Directors of the Company (the “Board”) or a pricing committee of the Board in
accordance with applicable law and all corporate proceedings necessary for the authorization, issuance, and delivery of such Ordinary Shares shall have been taken (the “Corporate Proceedings”) and (ii) upon the
issuance of any Ordinary Shares, the total number of Ordinary Shares issued and outstanding will not exceed the total number of Ordinary Shares that the Company is then authorized to issue under the Articles.
We are members of the Israel Bar, and we express no opinion as to any matter relating to the laws of any jurisdiction other than the laws of the State of
Israel, and have not, for the purpose of giving this opinion, made any investigation of the laws of any jurisdiction other than the State of Israel.
The opinions set forth herein are made as of the date hereof. We assume no obligation to revise or supplement any of these opinions to reflect any changes
in law or fact that may occur after the date hereof. This opinion is expressly limited to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters.
On the basis of the foregoing, and in reliance thereon, assuming the completion of the Corporate Proceedings in connection with the delivery of a specific
purchase notice, as applicable, we are of the opinion that (i) the Ordinary Shares underlying the Purchase ADSs to be issued pursuant to the Purchase Agreement have been duly authorized for issuance, and upon issuance and payment therefor pursuant to
the terms of the Purchase Agreement and in accordance with resolutions of the Board or pricing committee, as the case may be, such Ordinary Shares will be validly issued, fully paid, and non-assessable; and (ii) the Ordinary Shares underlying the
Warrant ADSs, as described in the Registration Statement, have been duly authorized for issuance, and when such Ordinary Shares are issued and delivered by the Company upon exercise of the Warrants against receipt of the exercise price therefor
pursuant to the terms of the Warrants, will be validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, and we further consent to the reference to this firm in the
section entitled “Legal Matters” in the Registration Statement and in the prospectus contained therein. This consent is not to be construed as an admission that we are a party whose consent is required to be filed as part of the Registration
Statement under the provisions of the Act.
|
|
Very truly yours,
/s/ Goldfarb Gross Seligman & Co.
|
2
Exhibit 5.2
 |
 |
June 25, 2025
RedHill BioPharma Ltd.
21 Ha'arba'a Street
Tel Aviv, 6473921, Israel
Re: RedHill BioPharma Ltd. Registration Statement on Form F-1
Ladies and Gentlemen:
We have acted as special U.S. counsel to RedHill BioPharma Ltd., an Israeli company organized under the laws of the State of Israel (the
“Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of a registration statement on Form F-1, initially filed by the Company on June 25, 2025 (as thereafter amended or supplemented, the “Registration Statement”). The Registration Statement relates to the resale from time to time by certain selling shareholder of up to 5,596,490 American
Depositary Shares (“ADSs”), each ADS representing ten thousand (10,000) ordinary shares, par value NIS 0.01 per share (“Ordinary Shares”), or 55,964,900,000 Ordinary Shares in the aggregate, comprised of (i) up to 5,263,157 ADSs (the “ELOC ADSs”) that may be issued by us to the selling shareholder pursuant to that certain Any Market Purchase Agreement, dated as of
June 20, 2025, by and between us and Alumni Capital LP (the “ELOC Purchase Agreement”), establishing a committed equity
facility (the “ELOC”), which may include up to 5,263,157 ADSs (the “Prefunded Warrant ADSs”) issuable to the selling shareholder upon exercise of prefunded warrants (the “Prefunded Warrants”) to purchase Ordinary Shares represented by ADSs in lieu of ADSs, that may be issued by the Company in connection with the ELOC, from time to time after the date of this
prospectus, upon the terms and subject to the conditions in the ELOC Purchase Agreement and (ii) up to 333,333 ADSs (the “Commitment
Warrant ADSs”, and together with the ELOC ADSs and the Prefunded Warrant ADSs, the “Offered ADSs”) issuable to Alumni
upon the exercise of that certain unregistered commitment warrant (the “Commitment Warrant,” together with the Purchase Notice
Securities, the “Offered Securities”) to purchase Ordinary Shares represented by ADSs issued to Alumni as consideration for
entry into the ELOC Purchase Agreement. The ADSs will be issued pursuant to a Deposit Agreement dated as of December 26, 2012 (the “Deposit
Agreement”) among the Company, The Bank of New York Mellon, as depositary (the “Depositary”), and all owners and
holders (each as defined therein) from time to time of ADSs of the Company issued thereunder.
In connection with this opinion, we have examined such corporate records, documents, instruments, certificates of public officials and
of the Company, including the form of the Prefunded Warrants and the Commitment Warrant, and such questions of law as we have deemed necessary for the purpose of rendering the opinions set forth herein.
In such examination, we have assumed the genuineness of all signatures and the authenticity of all items submitted to us as originals
and the conformity with originals of all items submitted to us as copies. We have also assumed that the Warrants have been duly authorized and executed by the Company and delivered against payment in full of the consideration payable therefor.
When the ADSs are issued in accordance with the Deposit Agreement against the deposit of duly authorized, validly issued, fully paid and
non-assessable Ordinary Shares, such ADSs will be duly and validly issued under the Deposit Agreement and will entitle the holders thereof to the rights specified therein.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that (i) the ELOC
ADSs, when the ELOC ADSs are issued in accordance with the Deposit Agreement against the deposit of duly authorized, validly issued, fully paid and non-assessable Ordinary Shares, such ADSs will be duly and validly issued under the Deposit Agreement
and will entitle the holders thereof to the rights specified therein, and (ii) the Prefunded Warrant ADSs and the Commitment Warrant ADSs, when issued in accordance with the terms of the Prefunded Warrants or the Commitment Warrants, as applicable,
and the Deposit Agreement against the deposit of duly authorized, validly issued, fully paid and non-assessable Ordinary Shares, such ADSs will be duly and validly issued under the Deposit Agreement and will entitle the holders thereof to the rights
specified therein.
Please note that we are opining only as to the matters expressly set forth herein, that no opinion should be inferred as to any other
matter. We are opining herein as to the laws of the State of New York as in effect on the date hereof, and we express no opinion with respect to any other laws, rules or regulations. This opinion is based upon currently existing laws, rules,
regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein. In rendering the
foregoing opinions, we have relied, for matters involving Israeli law, solely on the opinion of Goldfarb Gross Seligman & Co., Israeli counsel to the Company.
This opinion is being rendered solely in connection with the registration of the offering and sale of the ADSs, pursuant to the
registration requirements of the Securities Act.
We hereby consent to the use of this opinion as Exhibit 5.2 to the Registration Statement, and to the reference to us under the caption
“Legal Matters” in the base prospectus included in the Registration Statement. In giving such consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Securities Act or the
rules or regulations of the Commission thereunder. This opinion is given as of the date hereof and we assume no obligation to update or supplement such opinion to reflect any facts or circumstances that may hereafter come to our attention or any
changes that may hereafter occur.
|
|
Very truly yours,
/s/ Haynes and Boone, LLP
Haynes and Boone, LLP
|
Exhibit 10.7
RedHill Biopharma Ltd.
(The "Company")
Compensation Policy
(the “Policy” or “Compensation Policy”)
(the “Policy” or “Compensation Policy”)
As last amended by the Company's Shareholders on May 26, 2025.
1. Definitions
|
"Board of Directors" or “Board”
|
-
|
The Company's board of directors;
|
|
"Committee" or "Compensation Committee"
|
-
|
The Company's compensation committee;
|
|
"Company"
|
-
|
RedHill Biopharma Ltd.;
|
|
"Companies Law"
|
-
|
The Companies Law, 1999, Israel;
|
|
"Securities Law"
|
-
|
The Securities Law, 1968, Israel;
|
|
"Retirement Bonus"
|
-
|
Bonus, payment, compensation or any other benefit awarded to an officer with regard to conclusion of their office with the Company;
|
|
"Officer"
|
-
|
As defined in the Companies Law;
|
|
"Stock Option Plan"
|
-
|
Amended and Restated Award Plan (2010), as it may be amended from time to time, or such other equity incentive plan, including an
employee stock purchase plan, adopted by the Company from time to time;
|
|
“Base Salary”
|
-
|
A fixed amount paid by the Company to its Officers in return for work performed. Base salary does not include benefits, bonuses or any
other potential compensation;
|
|
"Cost"
|
-
|
Cost to the employing entity.
|
2. Overview
The principles of the Compensation Policy were set forth in accordance with the requirements of the Companies Law and after discussions by the Compensation
Committee and the Board. Policy principles were designed to grant proper, fair and well-considered compensation to Officers, in alignment with the Company's long-term best interests and organizational strategy. Part of the rationale is that the
Policy should encourage a sense of identification with the Company and its objectives on the part of its Officers. An increase in Officer satisfaction and motivation should retain the employment of high-quality Officers in the Company's service over
the long term.
The Compensation Policy considers, inter alia, the Company's risk management parameters, size and nature of its
operations and, with regard to terms of office and employment which include variable components, the Officer's long-term contribution to achieving the Company's objectives and to maximizing shareholders value, taking into account the scope and reach
of the Officer's role.
The Compensation Policy was prepared with due consideration to the nature of the Company’s operations in the biopharmaceutical sector, territories where
the Company operates, market capitalization on the applicable stock exchange or trading platforms on which the Company's ordinary shares and American Depository Shares (“ADS”) are then listed or traded, as well as other criteria.
The compensation principles, targets and benchmarks are derived, inter alia, form the Company's annual work plan
and from long-term plans as determined by the Board of Directors from time to time.
In the process of drafting this Policy, the Board and the Compensation Committee have examined the ratio between employer cost (as defined in the Companies
Law) associated with the engagement of the Officer and the average and median employer cost associated with the engagement of the other employees of the Company (the "Ratio"). The Compensation Committee and
Board believe that the current Ratio does not adversely impact the work environment in the Company.
Compensation Policy components will include each of the following:
| a. |
Base Salary;
|
| b. |
Benefits;
|
2
| c. |
Cash bonuses;
|
| d. |
Equity based compensation;
|
| e. |
Retirement and termination of service arrangements; and
|
| f. |
Exemption, Indemnification and Insurance.
|
While the Company's employment agreements and/or consulting agreements may be in various currencies the Company's compensation costs (including salaries,
benefits and consulting) are reported in the Company's financial statements in USD. Thus, all compensation components are presented in this policy in USD.
The language of this Compensation Policy uses the male pronoun only as a measure of comfort. This Policy applies to both male and female Officers.
This Policy aims to balance the mix of "Fixed Component" (comprised of Base Salary and benefits) and "Variable Component" (comprised of cash bonuses and
equity-based compensation) in order to, among other things, appropriately incentivize Officers to meet the Company's short and long term goals, while taking into consideration the Company’s need to manage a variety of business risks.
The total Variable Component of each Officer shall not exceed 80% of the total compensation package of such Officer on an annual basis. The Compensation
Committee and Board believe that such ratio expresses the appropriate compensation mix in the event that all performance objectives are achieved and assumes that all compensation elements are granted with respect to a given year.
3. Officers'
areas of responsibility, education and experience
The compensation package to the Officers is individually determined by the Compensation Committee and the Board (unless other approvals are required under
any applicable law) according to the educational background, prior vocational experience, qualifications, role, business responsibilities, past performance and previous compensation arrangements of such Officer.
3
4. Base
Salary and Benefits
| 4.1. |
Position: Chairman of the Board of Directors (the “Chairman”)
|
| 4.1.1. |
The annual Base Salary of the Chairman, consisting of a fixed annual payment and additional fixed payment per meeting, shall not exceed two times the annual Base Salary of other
Board members. If the Chairman is also an Officer, no additional compensation will be payable to the Chairman for his role as Chairman.
|
| 4.1.2. |
The Chairman will be entitled to reimbursement of reasonable expenses incurred in the course of discharging his office, including expenses with respect to attending meetings,
travel and entertainment expenses, against provision of receipts. The policy for overseas travel expense reimbursement will be the same as for the Company CEO.
|
| 4.2. |
Position: Company CEO
|
| 4.2.1. |
The annual Base Salary for the Company CEO shall be up to USD 750,000 for a full time position. Such amount may be linked to increases in the Israeli Consumer Price Index or to
increases in the representative rate of exchange of the US dollar, as the case may be.
|
| 4.2.2. |
The Company CEO will be entitled to reimbursement of reasonable per diem expenses incurred in the course of discharging his office, including expenses with respect to attending
meetings, travel and entertainment expenses, against provision of receipts. The Company may pay the CEO's expenses by credit card. Expense reimbursement for overseas travel will be in conformity with Company's policy.
|
The following benefits will be granted to the CEO in order, among other things, to comply with legal requirements:
| • |
Vacation days in accordance with market practice and applicable law, including redemption thereof;
|
| • |
Sick days in accordance with market practice and applicable law;
|
| • |
Convalescence pay according to applicable law;
|
| • |
Monthly remuneration for a study fund with reference to the Company's practice and common market practice;
|
4
| • |
Contribution by the Company on behalf of the Officer to an insurance policy or a pension fund, as allowed by applicable law and with reference to the Company's policies and
procedures and common market practice; and
|
| • |
Contribution by the Company on behalf of the Officer towards work disability insurance, as allowed by applicable law and with reference to the Company's policies and procedures
and common market practice.
|
The Company may offer additional benefits to the CEO, including but not limited to: communication, company car and travel benefits,
insurances, other benefits (such as newspaper subscriptions, academic and professional studies), etc., including their gross up.
A non-Israeli CEO may receive other similar, comparable or customary benefits as applicable in the relevant jurisdiction in which he or
she is employed.
| 4.3. |
Position: Officers (other than Board member or CEO)
|
| 4.3.1. |
The annual Base Salary for each Officer (other than a Board member, in his capacity as a Board member only, or the CEO) shall not exceed 90% of the annual Base Salary for the
CEO.
|
| 4.3.2. |
In addition, each Officer (other than a Board member, in his capacity as a Board member only, or the CEO) will be entitled to reimbursement of reasonable per diem expenses
incurred in the course of discharging his office, including expenses with respect to attending meetings, travel and entertainment expenses, against provision of receipts. The Company may pay the Officer's expenses by credit card. Expense
reimbursement for overseas travel will be in conformity with Company policy.
|
The following benefits may be granted to Officers in order, among other things, to comply with legal requirements:
| • |
Vacation days in accordance with market practice and applicable law, including redemption thereof;
|
5
| • |
Sick days in accordance with market practice and applicable law;
|
| • |
Convalescence pay according to applicable law;
|
| • |
Monthly remuneration for a study fund, as allowed by applicable law and with reference to the Company's practice and common market practice;
|
| • |
Contribution by the Company on behalf of the Officer to an insurance policy or a pension fund, as allowed by applicable law and with reference to the Company's policies and
procedures and common market practice; and
|
| • |
Contribution by the Company on behalf of the Officer towards work disability insurance, as allowed by applicable law and with reference to the Company's policies and procedures
and common market practice.
|
The Company may offer additional benefits to the Officers, including but not limited to: communication, company car and travel
benefits, insurances, other benefits (such as newspaper subscriptions, academic and professional studies), etc., including their gross up.
Non-Israeli Executive Officers may receive other similar, comparable or customary benefits as applicable in the relevant jurisdiction in
which they are employed.
| 4.4. |
Position: Board member
|
| 4.4.1. |
The following benefits may be provided as compensation to Redhill's Board members:
|
| 4.4.1.1. |
All RedHill's Board members, excluding the chairman of the Board may be entitled to an annual cash fee retainer of up to USD 50,000, RedHill committee membership annual cash fee
retainer of up to USD 15,000 for each committee membership, and committee chairperson annual cash fee retainer of up to USD 20,000 for each position as committee chairperson (not to be paid both as committee member and chairperson).
|
| 4.4.1.2. |
The fair market value of equity-based compensation awarded to each non-management director in a given year, as calculated at grant date, shall not exceed 400% of the annual cash
fee retainer of such director, as the case may be.
|
6
| 4.4.1.3. |
The compensation of the Company’s external directors, if any, shall be in accordance with the Companies Regulations (Rules Regarding the Compensation and Expenses of an External
Director), 5760-2000, as amended by the Companies Regulations (Relief for Public Companies Traded in Stock Exchange Outside of Israel), 5760-2000, as such regulations may be amended from time to time.
|
| 4.4.1.4. |
It is hereby clarified that the compensation (and limitations) stated under Section 4.4.1. will not apply to directors who serve as Officers.
|
| 4.4.2. |
Board members will be entitled to reimbursement of reasonable expenses incurred in the course of their duty, including expenses with respect to attending meetings, travel and
entertainment expenses, against provision of receipts. Expense reimbursement for overseas travel will be in accordance with Company policies.
|
| 4.5. |
According to section 1B3 to the Companies Regulations (Relief in Transactions With Related Parties), 2000, non-material changes in the terms of employment of an officer who is
subject to the CEO, will not require compensation committee approval, as stated in section 272(C) to the Companies Law. For these purposes, a change shall be considered to be non-material so long as the change in the compensation does not
exceed 15% of the fixed compensation and has been approved by the CEO, and all within the framework of the Policy.
|
| 4.6. |
Signing Bonus
At the Compensation Committee’s and Board’s discretion, the Company may grant a signing bonus to a newly recruited Officer. The signing bonus shall not
exceed six (6) monthly Base Salaries of such Officer.
|
7
| 4.7. |
Work overseas
|
| 4.7.1. |
Notwithstanding the provisions of Sections 4.2.1 and 4.3.1, the maximum Base Salary for an Officer who works in the US may exceed the maximum Base Salary for the Officer
pursuant to this Policy, by up to 50%.
|
| 4.7.2. |
Conditioned only upon continued employment with the Company, the Company may reimburse an Officer for his actual reasonable relocation expenses when relocating, outside or
inside the US, and when returning.
|
| 4.7.3. |
Conditioned only upon continued employment with the Company, the Company may grant a one-time relocation bonus of up to six (6) monthly Base Salaries to an Officer, when relocating, outside or inside the US.
|
5. Cash
Bonuses
| 5.1. |
Annual bonus
|
The Company may award an annual bonus to an Officer based on the following guidelines:
| 5.1.1. |
The payment of annual bonuses for any particular fiscal year shall be subject to the satisfaction (in addition to the satisfaction of the applicable objectives set forth below
in Section 5.1.2 below) of one or more of the following criteria:
|
| 5.1.1.1. |
For the Company to recognize minimum revenues of US $80 million in the relevant year;
|
| 5.1.1.2. |
For the Company to reduce its negative cash from operations to less than $25 million per annum;
|
| 5.1.1.3. |
A market cap of at least USD 300 million;
|
| 5.1.1.4. |
Increase in the share price of 15% or more in the relevant fiscal year;
|
| 5.1.1.5. |
A significant positive event in the Company’s business, affecting the Company’s overall positioning and prospect in the medium or the long term.
|
8
| 5.1.2. |
The annual bonus to the Chairman and the CEO will be based on measurable criteria. The measurable criteria and their relative weight shall be determined by the Compensation
Committee and the Board in respect of each calendar year. These measurable criteria may include, inter alia, objectives relating to the development of clinical trials, significant progress of pipeline products, operational and financial
targets achieved, significant business development progress and any additional significant objectives determined by the Board.
|
| 5.1.3. |
In addition, the Company may grant the CEO a bonus of up to three (3) monthly Base Salaries or up to 25% of the total variable compensation, at the sole discretion of the
Compensation Committee and Board, based on the CEO's contribution to the Company.
|
| 5.1.4. |
The Company may also grant, subject to the approval of the Compensation Committee and the Board, an annual bonus to its Officers (other than the CEO) for their contribution to
the Company. Such grants may be based in whole or in part on discretion of the Compensation Committee and the Board, provided that they do not exceed the ceiling specified in Section 5.4 below.
|
| 5.2. |
Special Annual Bonus
In addition to the Annual Bonus, each Officer of the Company may be awarded once a year a special annual bonus (the "Special
Annual Bonus") regardless of a specified target and regardless of a bonus plan. Such Special Annual Bonus shall be approved by the Compensation Committee and the Board of Directors, which shall consider the CEO's recommendation
(based on recognition of special and extraordinary contribution by the Officer in the course of Company business, such as a special effort and achievements related to financing raised, merger, acquisition, sale or license of rights,
achievement of major corporate goal in R&D or in commercial operations, business and corporate development or other significant general corporate goal, intellectual property protection of the Company’s products, etc.). Such Special
Annual Bonus shall not exceed three (3) monthly Base Salaries for each Officer of the Company, except for the CEO as provided in Section 5.1.3 above.
|
9
| 5.3. |
Bonus calculation upon termination of employment: Should the employment or service of the Officer terminate prior to the end of a fiscal year, the Company may pay the
Officer the pro rata share of that fiscal year’s bonus, based on the period such Officer was employed by the Company or has served in the Company.
|
| 5.4. |
Maximum bonus: the combined Annual Bonus and Special Annual Bonus amount shall not exceed 200% of the Officer’s annual Base Salary.
|
| 5.5. |
The Company's Compensation Committee and Board of Directors may reduce the bonus awarded to an Officer at their discretion, including under the following circumstances: material
deterioration of the Company's position or such material deterioration anticipated by the Board of Directors, deterioration in the state of the economy, deterioration in the performance of the Officer or inappropriate conduct by the Officer.
|
| 5.6. |
Compensation Recovery ("Clawback"):
|
| 5.6.1. |
In the event of an accounting restatement, the Company shall be entitled to recover from its Officers the bonus compensation or performance-based equity compensation received by
each such Officers during the three completed fiscal years immediately preceding the date that the Company is required to prepare an accounting restatement in the amount in which such bonus exceeded what would have been paid or received under
the financial statements, as restated (“Compensation Recovery”), For purposes of this Policy, when compensation is deemed to be “received”, the date on which a restatement shall be deemed to be
required, and the type of restatement for which this provision shall apply, shall be as provided in the Nasdaq Clawback Rule (as defined below)
|
10
| 5.6.2. |
Notwithstanding the aforesaid, subject to compliance with applicable law, the compensation recovery will not be triggered in the following events:
|
| • |
The financial restatement is required due to changes in the applicable financial reporting standards; or
|
| • |
The Compensation Committee has determined that the direct expense paid to a third party to assist in enforcing the Policy would exceed the amount to be recovered, provided that
the Company has (i) made reasonable attempt(s) to make the Compensation Recovery, (ii) documented such reasonable attempt(s) and (iii) provided such documentation to the relevant listing exchange or association; or
|
| • |
Otherwise as provided in the Nasdaq Clawback Rule.
|
| 5.6.3. |
Nothing in this Section 5.6 derogates from any other “Clawback” or similar provisions regarding disgorging of profits imposed on Officers by virtue of applicable securities or
other laws, rules or regulations (including applicable stock exchange rules) and with respect to which the Board of Directors, following approval of the Compensation Committee, may adopt additional policies (which, for the sake of clarity,
shall not require additional shareholder approval).
Without derogating from the generality of the foregoing, the Company has adopted a clawback policy (as amended from time to time, “Nasdaq Clawback Policy”)
that complies with Listing Rule 5608 (“Nasdaq Rule”) of The Nasdaq Stock Market LLC. The Nasdaq Clawback Policy shall be deemed to comply with this Compensation Policy. In the event of any inconsistency between this Policy and the Nasdaq
Clawback Policy, the Nasdaq Clawback Policy shall prevail to the extent the Nasdaq Clawback Policy creates or expands the obligation of the Company to conduct a “Clawback” from an Officer. For the avoidance of any doubt, no amendments to,
or further corporate approvals in connection with, this Policy will be required in connection with the Nasdaq Clawback Policy so long as it is approved by the Compensation Committee and the Board.
|
| 5.6.4. |
.
|
6. Equity-Based
Compensation
| 6.1. |
The Compensation Committee and the Board shall review from time to time the overall equity-based grant for all Officers. When doing so, the Compensation Committee and the Board
shall take into consideration: (1) each Officer's (including Board members) contribution to the Company including expected contribution; and (2) creating an effective long-term incentive to harness and motivate Officers.
|
11
| 6.2. |
The equity-based compensation offered by the Company may be in the form of share options, restricted shares and/or other equity-based awards, such as RSUs, in accordance with
the Stock Option Plan.
|
| 6.3. |
Subject to any applicable law and at the Compensation Committee and the Board’s discretion, as applicable, the Company may determine the tax regime under which equity-based
compensation may be granted, including a tax regime which will maximize the benefit to the Officers.
|
| 6.4. |
The fair market value of equity-based compensation awarded to each Officer not serving as a director in a given year, as calculated at grant date, shall not exceed 200% of the
annual Base Salary of such Officer, as the case may be.
|
| 6.5. |
The exercise price for each option shall be no less than the closing Company share price on Nasdaq on the date of the approval of the award by the Board of Directors (or in the
case of grants to Officers who are subject to U.S. taxation and which require shareholder approval, on the date of approval by the shareholders of the Company).
|
| 6.6. |
All other terms of the equity awards shall be in accordance with the Stock Option Plan and other related practices and policies.
|
| 6.7. |
Subject to the terms of the Stock Option Plan, the Compensation Committee and Board of Directors shall not reduce the amount of unexercised options of an Officer, nor will they
limit the exercise value of such unexercised options.
|
7. Retirement
and Termination of Service Arrangements
| 7.1. |
Severance pay: in the case of termination (other than termination of an Officer for cause), the Officer will be eligible to receive severance pay in full.
|
12
| 7.2. |
Notice period:
|
| - |
The Company may give an Officer a notice period of up to twelve (12) months.
|
| - |
The Company may waive the Officer's services to the Company during the notice period and pay the amount payable in lieu of notice, plus the value of benefits, even in case of
immediate termination.
|
| - |
During the notice period, the Officer would be eligible to receive bonuses with respect to this period and would also continue to accrue vesting of options awarded.
|
| 7.3. |
Non-compete bonus: the Company may grant an Officer a bonus upon termination of employment in return for a commitment by the Officer not to compete with Company business.
The extent of the non-compete commitment would be determined by the Company's Compensation Committee and Board of Directors. Such bonus shall be calculated according to a key of up to two (2) monthly Base Salaries for each three (3) months of
non-compete period and shall not exceed a total of twelve (12) monthly Base Salaries.
|
| 7.4. |
Retirement bonus: the Company may grant an Officer a retirement bonus upon termination of employment. The retirement bonus shall not exceed twelve (12) monthly Base
Salaries for Officers that engaged with the Company for over three (3) years and six (6) monthly Base Salaries for an Officer that was engaged with the Company for less than three (3) years, except in
the case of termination of employment upon "change of control" in which case the limitations of Section 7.5 shall apply.
Such retirement bonus, if applicable, shall be awarded based on the Officer's tenure, the Company's achievements during the relevant period and the Officer's
contribution to such achievements, and the circumstances of such Officer's retirement from the Company.
|
| 7.5. |
Creation/Change of Control: the Company may grant an Officer a bonus upon a "change of control" (as defined in a plan approved by the Compensation Committee and the
Board) upon such conditions determined by the Compensation Committee and the Board. The bonus shall not exceed twelve (12) monthly Base Salaries for each Officer who served the Company for over three (3) years and six (6) monthly Base
Salaries for each Officer who served in the Company for less than three (3) years.
The Company may also grant the CEO a bonus upon a "change of control" upon such conditions determined by the Compensation Committee and the Board. The bonus to the
CEO shall not exceed eighteen (18) monthly Base Salaries.
|
13
8. Exemption,
Indemnification and Insurance
| 8.1. |
Board member and Officer liability insurance (claims made): the Company may obtain a liability insurance policy for Board members and Officers, which would apply to
Officers of the Company and/or of its subsidiaries, as they may be, from time to time, subject to the following terms and conditions: (a) the total insurance coverage under the insurance policy shall not exceed US $100 million; and (b) the
purchase of such policy shall be approved by the Compensation Committee (and, if required by law, by the Board) which shall determine that such policy reflects the current market conditions, and it shall not materially affect the Company's
profitability, assets or liabilities.
|
| 8.2. |
Board member and Officer’s liability insurance (run-off): should the Company sell its operations (in whole or in part) and/or in case of merger, spin-off or any other
significant business combination involving the Company and/or part or all of its assets, the Company may obtain a Board member and Officer’s liability insurance policy (run-off) for Board members and Officers in office with regard to the
relevant operations, subject to the following terms and conditions: (a) the insurance term shall not exceed 7 years; (b) the coverage amount shall not exceed US $100 million; and (c) the purchase of such policy shall be approved by the
Compensation Committee (and, if required by law, by the Board) which shall determine that such policy reflects the current market conditions, and it shall not materially affect the Company's profitability, assets or liabilities.
|
| 8.3. |
Waiver of liability: the Company may, subject to statutory provisions, waive the Officer's liability for any damage incurred by the Company, directly or indirectly, due
to any breach of the Officer's due care duty towards the Company and/or any affiliated entity by his action and pursuant to his position as an Officer.
|
14
| 8.4. |
Advance indemnification: the Company may provide a commitment to indemnify in advance any Officer of the Company in the course of his position as Officer of the Company
and its subsidiaries thereof, all subject to the letter of indemnification, as approved by the Company's shareholders from time to time and in accordance with the Company's Articles of Association.
|
| 8.5. |
Retroactive indemnification: the Company may provide retroactive indemnification to any Officer to the extent allowed by the Companies Law.
|
9. Engagement
as a contractor or through a management company
The Company may engage an Officer as an independent contractor rather than as a salaried employee. In such a case, the maximum cost of
employment would be calculated based on the maximum cost for a salaried employee in a similar position, and guidelines of the Compensation Policy would apply to such an officer, mutatis mutandis.
10. Miscellaneous
| 10.1. |
The identity of the Officers is subject to the discretion of the Company's CEO. Changes may occur in the identity of Officers from year to year, and persons who served as
Officers in one year and whose terms of employment or office were subject to this Compensation Policy may not necessarily continue to serve as Officers in subsequent years, and thus, their terms of employment or office would not be subject to
this Compensation Policy, and vice versa. Moreover, the Company may revise the terms of employment or office of any Officer at any time, and is under no obligation to apply the same terms of employment or office to any Officer applied to them
in previous years.
|
| 10.2. |
This Policy shall not confer any right on Officers to whom this Compensation Policy applies, nor on any other third party, to receive any compensation whatsoever.
|
| 10.3. |
Note, for the sake of clarification, that the content of this policy does not detract from provisions of the Companies Law with regard to the manner of approval of contracting
between the Company and any Officer with regard to terms of employment or office, and the provisions of this Policy do not detract from any mandatory reporting with regard to Officer compensation pursuant to the Securities Law and regulations
based there upon.
|
15
| 10.4. |
For the avoidance of doubt, it is clarified that in case of any amendment made to provisions of the Companies Law and any other relevant rules and regulations in a manner that
will facilitate the Company with respect to its action with regard to Officer compensation, the Company may be entitled to follow these provisions even if they contradict the principles of this Policy.
|
| 10.5. |
Any payment made to Officers pursuant to compensation plans, in addition to the fixed compensation component, is not and shall not be deemed part of the Officer's regular pay
for all intents and purposes, and shall not form basis for calculation and/or eligibility and/or accrual of any benefits and will not, notwithstanding the foregoing, be a component included in payment of paid leave, severance pay,
contributions to provident funds, etc.
|
| 10.6. |
As part of the approval process of each annual plan, with its various components, changes to Company objectives, market conditions, the Company's position, etc. would be
reviewed annually by the Board of Directors. Consequently, the targets, benchmarks and compensation targets for each plan would be reviewed annually, and their actual application would be subject to change based on decisions made by the Board
of Directors from time to time.
|
| 10.7. |
The Board of Directors shall review from time to time the Compensation Policy and the need to revise it in case of any material change in circumstances prevailing upon setting
said Policy, or for any other reasons.
|
| 10.8. |
Any change in compensation of an Officer related to his or her fixed component that will change the composition of the compensation without affecting the total employer cost to
the Company will not require approval of the compensation committee nor the Board of Directors, if it is approved by the CEO or the CFO of the Company and provided that such changed compensation is otherwise in accordance with the terms of
the Compensation Policy.
|
* * * * *
16
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form F-1 of RedHill Biopharma Ltd. of our report
dated April 10, 2025 relating to the financial statements, which appears in RedHill Biopharma Ltd.’s Annual Report on Form 20-F for the year ended December 31, 2024. We also consent to the reference to us under the heading “Experts” in such
Registration Statement.
/s/ Kesselman & Kesselman
Certified Public Accountants (Isr.)
A member firm of PricewaterhouseCoopers International Limited
Tel-Aviv, Israel
June 25, 2025
Kesselman & Kesselman, 146 Derech Menachem Begin St. Tel-Aviv 6492103, Israel,
P.O Box 7187 Tel-Aviv 6107120, Telephone: +972 -3- 7954555, Fax:+972 -3- 7954556, www.pwc.com/il
P.O Box 7187 Tel-Aviv 6107120, Telephone: +972 -3- 7954555, Fax:+972 -3- 7954556, www.pwc.com/il