Sol-Gel Technologies Ltd 20-F for FY2021
Sol-Gel Technologies Ltd. (SLGL)
20-F
2022-04-04
For: 2021-12-31
View Original
Added on
April 08, 2026
About this 20-F
Sol-Gel Technologies Ltd filed this 20-F on April 4, 2022, covering the fiscal year ended December 31, 2021 (FY2021).
Headline figures
Fiscal year ended December 31, 2021, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $31.27M
- up 256.5% from $8.77M a year earlier
- Net income
- $3.22M
- compared with a net loss of $29.29M a year earlier
- Diluted EPS
- $0.14
- compared with -$1.30 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 20-F
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REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
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OR
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended
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OR
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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OR
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SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Date of event requiring this shell company report ________________
Commission file number 001-38367
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(Exact name of Registrant as specified in its charter)
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N/A
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(Translation of Registrant’s name into English)
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(Jurisdiction of incorporation or organization)
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(Address of principal executive offices)
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Tel:
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(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
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Securities registered or to be registered pursuant to Section 12(b) of the Act.
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Securities registered or to be registered pursuant to Section 12(g) of the Act:
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None
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(Title of Class)
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Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:
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None
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(Title of Class)
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Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report: 23,126,804 Ordinary Shares, par value NIS 0.1 per share
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
Yes ☐ No ☒
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act 1934.
Yes ☐ No ☒
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check one):
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Large Accelerated filer ☐
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Accelerated filer ☐
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Emerging growth company
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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 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has fi led a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
International Financing Reporting Standards as issued by the International Accounting Standards Board ☐ Other ☐
If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow.
Item 17 ☐ Item 18 ☐
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes ☐ No ☒
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TABLE
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3
INTRODUCTION
All
references to “Sol-Gel,” “Sol-Gel Technologies,” “we,” “us,” “our,” “the
Company” and similar designations refer to Sol-Gel Technologies Ltd. The terms “shekels,” “Israeli shekels”
and “NIS” refer to New Israeli Shekels, the lawful currency of the State of Israel, the terms “dollar,” “US$”
or “$” refer to U.S. dollars, the lawful currency of the United States. Unless derived from our financial statements or otherwise
indicated, U.S. dollar translations of NIS amounts presented in this annual report are translated using the rate of NIS 3.11, NIS 3.215
and NIS 3.456 to $1.00, based on the exchange rates reported by the Bank of Israel on December 31, 2021, December 31, 2020 and December 31,
2019, respectively.
All
references to the term “Twyneo® “ refers
to our novel, once-daily, non-antibiotic topical cream that has been approved by the Food and Drug Administration for the treatment of
acne vulgaris, or acne. All references to the term “Epsolay®”
refers to a novel, once-daily investigational topical cream containing encapsulated benzoyl peroxide that we are developing for
the treatment of papulopustular (subtype II) rosacea; “SGT-210” refers to SGT-210 (erlotinib), under investigation for the
treatment of keratoderma; “erlotinib” refers to an epidermal growth factor receptor inhibitor; “SGT-310” refers
to SGT-310 (tapinarof), an investigational aryl hydrocarbon receptor agonist; “SGT-510” refers to SGT-510 (roflumilast and
agent A); and “roflumilast” refers to an investigational phosphodiesterase 4 inhibitor. SGT-210, SGT-310 and SGT-510 are each
a potential treatment of various pharmaceutical indications. All references to the term “investigational product candidates”
include Epsolay® SGT-210, SGT-310 and SGT-510. All references to the terms "generic product candidates" include two generic
programs related to four generic drug candidates developed in collaboration with Padagis Israel Pharmaceuticals Ltd ("Padagis"). All references
to the term “product candidates” include both investigational product candidates and generic product candidates.
Solely
for convenience, the trademarks, service marks, and trade names referred to in this annual report are without the ® and ™ symbols,
but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our
rights or the rights of the applicable licensors to these trademarks, service marks and trade names. This annual report contains additional
trademarks, service marks and trade names of others, which are the property of their respective owners. All trademarks, service marks
and trade names appearing in this annual report are, to our knowledge, the property of their respective owners. We do not intend our use
or display of other companies’ trademarks, service marks or trade names to imply a relationship with, or endorsement or sponsorship
of us by, any other companies.
This
annual report includes statistics and other data relating to markets, market sizes and other industry data pertaining to our business
that we have obtained from industry publications and surveys and other information available to us. Industry publications and surveys
generally state that the information contained therein has been obtained from sources believed to be reliable. Market data and statistics
are inherently predictive and speculative and are not necessarily reflective of actual market conditions. Such statistics are based on
market research, which itself is based on sampling and subjective judgments by both the researchers and the respondents, including judgments
about what types of products and transactions should be included in the relevant market. In addition, the value of comparisons of statistics
for different markets is limited by many factors, including that (i) the markets are defined differently, (ii) the underlying information
was gathered by different methods, and (iii) different assumptions were applied in compiling the data. Accordingly, the market statistics
included in this annual report should be viewed with caution. We believe that information from these industry publications included in
this annual report is reliable.
4
We
make forward-looking statements in this annual report that are subject to risks and uncertainties. These forward-looking statements include
information about possible or assumed future results of our business, financial condition, results of operations, liquidity, plans and
objectives. In some cases, you can identify forward-looking statements by terminology such as “believe,” “may,”
“estimate,” “continue,” “anticipate,” “intend,” “should,” “plan,”
“expect,” “predict,” “potential,” or the negative of these terms or other similar expressions. Forward-looking
statements are based on information we have when these statements are made or our management’s good faith belief as of that time
with respect to future events, and are subject to risks and uncertainties that could cause actual performance or results to differ materially
from those expressed in or suggested by the forward-looking statements. Important factors that could cause such differences include, but
are not limited to:
| • |
the adequacy of our financial and other resources, particularly in light of our history of recurring
losses and the uncertainty regarding the adequacy of our liquidity to pursue our complete business objectives; |
| • |
our ability to complete the development of our investigational product candidates; |
| • |
our dependance on the success of Galderma Holding SA (“Galderma”) in commercializing Twyneo®
and Epsolay®; |
| • |
the right of Galderma to terminate the collaboration agreement with respect to Epsolay®, if Epsolay®
is not approved for marketing by the FDA, by March 31, 2022; |
| • |
our ability to find suitable co-development, contract manufacturing and marketing partners; |
| • |
our ability to obtain and maintain regulatory approvals for our investigational product candidates in
our target markets and the possibility of adverse regulatory or legal actions relating to our investigational product candidates even
if regulatory approval is obtained; |
| • |
our ability to commercialize and launch our pharmaceutical investigational product candidates;
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| • |
our ability to obtain and maintain adequate protection of our intellectual property; |
| • |
our ability to manufacture our investigational product candidates in commercial quantities, at an adequate
quality or at an acceptable cost; |
| • |
acceptance of Twyneo®, Epsolay® and our other investigational product candidates by healthcare
professionals and patients; |
| • |
the possibility that we may face third-party claims of intellectual property infringement; |
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the timing and results of clinical trials that we may conduct or that our competitors and others may
conduct relating to our or their products; |
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intense competition in our industry, with competitors having substantially greater financial, technological,
research and development, regulatory and clinical, manufacturing, marketing and sales, distribution and personnel resources than we do;
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potential product liability claims; |
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potential adverse federal, state and local government regulation in the United States, Europe or Israel;
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the impact of ongoing pandemics such as Novel Coronavirus Disease 2019, or COVID-19, on our business
and financial condition; and |
| • |
loss or retirement of key executives and research scientists. |
You
should review carefully the risks and uncertainties described under the heading “Risk Factors” in this annual report for a
discussion of these and other risks that relate to our business and investing in our ordinary shares. The forward-looking statements contained
in this annual report are expressly qualified in their entirety by this cautionary statement. Except as required by law, we undertake
no obligation to update publicly any forward-looking statements after the date of this annual report to conform these statements to actual
results or to changes in our expectations.
5
ITEM
1. IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS
Not applicable.
ITEM
2. OFFER STATISTICS AND EXPECTED TIMETABLE
Not applicable.
ITEM
3. KEY INFORMATION
A.
Selected Financial Data
Not applicable.
B. Capitalization
and Indebtedness
Not applicable.
C. Reasons
for the Offer and Use of Proceeds
Not applicable.
D. Risk
Factors
You
should carefully consider the risks we describe below, in addition to the other information set forth elsewhere in this annual report,
including our financial statements and the related notes beginning on page F-1, before deciding to invest in our ordinary shares, or the
“Ordinary Shares. The risks and uncertainties described below in this annual report on Form/ 20-F for the year ended December 31,
2021 are not the only risks facing us. We may face additional risks and uncertainties not currently known to us or that we currently deem
to be immaterial. Any of the risks described below or incorporated by reference in this Form 20-F, and any such additional risks, could
materially adversely affect our business, financial condition or results of operations. In such case, you may lose all or part of your
investment.
Summary
of Risk Factors
The
following is a summary of some of the principal risks we face. The list below is not exhaustive, and investors should read this “Risk
factors” section in full.
| • |
We are a dermatology company and have incurred significant losses since our inception. We expect to incur
losses for the foreseeable future and may never achieve or maintain profitability. |
| • |
We have a limited operating history in the dermatological prescription drug space which may make it difficult
to evaluate the success of our business to date and to assess our future viability. |
| • |
We may need substantial additional funding to pursue our business objectives. If we are unable to raise
capital when needed, we could be forced to curtail our planned operations and the pursuit of our growth strategy. If we are successful
in raising additional capital, this may cause dilution to our shareholders, restrict our operations or require us to relinquish rights
to our technologies or investigational product candidates. |
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We are largely dependent on the success of Twyneo®, Epsolay® and our other investigational
product candidates for the treatment of topical dermatological conditions. |
6
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We are dependent on the success of Galderma in commercializing Twyneo® and Epsolay® in the
U.S.. If Galderma is not successful in its commercialization efforts in the U.S. or does not perform as expected, our business may be
substantially harmed. |
| • |
Galderma has the right to terminate our collaboration agreement with respect to Epsolay®, if we
do not receive marketing approval from the FDA, by March 31, 2022. |
| • |
We currently have limited marketing capabilities, and are dependent on the success of Galderma in commercializing
Twyneo® and Epsolay® in the U.S.. If we are unable to establish adequate sales and marketing capabilities through third parties for
Twyneo® and Epsolay® outside of the U.S. or for our other investigational product candidates, we may be required to establish
sales and marketing capabilities on our own, or we may be unable to successfully commercialize such products if approved by the FDA or
generate product revenues. |
| • |
We have not obtained regulatory approval for most of our product candidates in the United States or any
other country. |
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Our continued growth is dependent on our ability to successfully develop and commercialize new product
candidates in a timely manner. We expend a significant amount of resources on research and development efforts that may not lead to successful
product candidate introductions or the recovery of our research and development expenditures. |
| • |
Clinical drug development involves a lengthy and expensive process with an uncertain outcome, and results
of earlier studies and clinical trials may not be predictive of future trial results, which could result in development delays or a failure
to obtain marketing approval. |
| • |
The regulatory approval processes of the from the U.S. Food and Drug Administration, or FDA, and comparable
foreign authorities are lengthy, time consuming and inherently unpredictable, and if we are ultimately unable to obtain regulatory approval
for our product candidates, our business will be substantially harmed. |
| • |
Adverse side effects or other safety risks associated with our product candidates could delay or preclude
approval, cause us to suspend or discontinue clinical trials, abandon investigational product candidates, limit the commercial profile
of an approved label, or result in significant negative consequences following marketing approval, if any, such as the risk of product
liability claims. |
| • |
Twyneo® Epsolay® and our other product candidates, even if they receive regulatory approval,
may fail to achieve the broad degree of physician adoption and market acceptance necessary for commercial success. |
| • |
Twyneo® Epsolay® and, our other product candidates, will face significant competition
and our failure to compete effectively may prevent us and our commercial partners from achieving significant market penetration and expansion.
|
| • |
The ongoing COVID-19 pandemic may adversely affect our development timeline, the availability of our
contract manufacturers, of utensils, raw materials and human resources and patients for clinical trials and as a result may adversely
affect our business, revenues, results of operations and financial condition. |
7
| • |
Any collaborative arrangements that we have (including our agreement with Galderma) or may establish
in the future may not be successful or we may otherwise not realize the anticipated benefits from these collaborations. |
| • |
We and our partners rely on third parties and consultants to assist us in conducting our clinical trials.
If these third parties or consultants do not successfully carry out their contractual duties or meet expected deadlines, we may be unable
to obtain regulatory approval for or commercialize our product candidates and our business could be substantially harmed. |
| • |
The manufacture of pharmaceutical products is complex, and manufacturers often encounter difficulties
in production. If we, our partners, or any of our third-party manufacturers encounter any difficulties, our ability to provide product
candidates for clinical trials or our product candidates to patients, once approved, and the development or commercialization of our product
candidates could be delayed or stopped. |
| • |
We depend on our intellectual property, and our future success is dependent on our ability to protect
our intellectual property and not infringe on the rights of others. |
| • |
If we are unable to protect the confidentiality of our trade secrets or know-how, such proprietary information
may be used by others to compete against us. |
| • |
If we are not able to retain our key management, or attract and retain qualified scientific, technical
and business personnel, our ability to implement our business plan may be adversely affected. |
Risks Related to Our
Business and Industry
We
are a dermatology company and have incurred significant losses since our inception. We expect to incur losses for the foreseeable future
and may never achieve or maintain profitability.
We
are a dermatology company with a limited operating history. We have incurred net losses since our formation in 1997. In particular, we
incurred net losses of $24.6 million in 2019, $29.3 million in 2020 and a profit of $3.2 million in 2021. As of December 31, 2021,
we had an accumulated deficit of $178.1 million. Our losses have resulted principally from expenses incurred in research and development
of Twyneo® and our investigational product candidates and from general and administrative expenses that we have incurred while building
our business infrastructure. We expect to continue to incur net losses for the foreseeable future as we continue to invest in research
and development and seek to obtain regulatory approval and commercialization of our investigational product candidates. The extent of
our future operating losses and the timing of generating revenues and becoming profitable are highly uncertain, and we may never achieve
or sustain profitability. We anticipate that our expenses will increase substantially as we:
| • |
conduct Phase I clinical studies of SGT-210 and SGT-310, and continue the research and development of
SGT-210, SGT-310, and SGT-510 and other future investigational product candidates; |
| • |
seek regulatory approvals for any product candidate that successfully completes clinical development;
|
| • |
establish commercial manufacturing capabilities through one or more contract manufacturing organizations
to commercialize our products; |
| • |
continue the development, bioequivalence and other studies required for abbreviated new drug application,
or ANDA, submissions for our product candidates; |
8
| • |
seek to enhance our technology platform; |
| • |
maintain, expand and protect our intellectual property portfolio; |
| • |
seek new drug candidates and expand our disease portfolio; |
| • |
add clinical, scientific, operational, financial and management information systems and personnel, including
personnel to support our product development; and |
| • |
experience any delays or encounter any issues with any of the above, including but not limited to failed
studies, complex results, safety issues or other regulatory challenges. |
We
have financed our operations primarily through public offerings in the U.S., private placements of equity securities and investments and
loans from our controlling shareholder. To date, we have devoted a significant portion of our financial resources and efforts to developing
Twyneo®, Epsolay® and generic product candidates which include a generic product, the rights to which we have since sold, and
developing our other investigational product candidates. Although we have received approval of from FDA with respect to our marketing
applications for Twyneo® and are anticipating a decision from the FDA with respect to our marketing application for Epsolay®
in 2022, to become and remain profitable, we must succeed in developing and eventually commercializing product candidates that generate
significant revenue. This will require us to be successful in a range of challenging activities, including completing pre-clinical studies
and clinical trials for our product candidates, discovering and developing additional product candidates, obtaining regulatory approval
for any product candidates that successfully complete clinical trials, establishing manufacturing and marketing capabilities and ultimately
selling any product candidates for which we may obtain regulatory approval. We are only in the preliminary stages of most of these activities.
We may never succeed in these activities and, even if we do, may never generate revenue that is significant enough to achieve profitability.
Because
of the numerous risks and uncertainties associated with pharmaceutical products, we are unable to accurately predict the timing or amount
of increased expenses or when, or if, we will be able to achieve profitability. If we are required by the FDA or other regulatory authorities
to perform studies in addition to those we currently anticipate, or if there are any delays in completing our clinical trials, our expenses
could increase and revenue could be further delayed.
Even
if we do generate revenue from product sales or product royalties, we may never achieve or sustain profitability on a quarterly or annual
basis. Our failure to sustain profitability would depress the market price of our ordinary shares and could impair our ability to raise
capital, expand our business, diversify our product offerings or continue our operations. A decline in the market price of our ordinary
shares also could cause you to lose all or a part of your investment.
9
We
may need substantial additional funding to pursue our business objectives. If we are unable to raise capital when needed, we could be
forced to curtail our planned operations and the pursuit of our growth strategy.
Conducting
pre-clinical studies and clinical trials is a time-consuming, expensive and uncertain process that takes years to complete, and we may
never generate the necessary data or results required to obtain regulatory approval and achieve product sales of our product candidates.
We expect to continue to incur significant expenses and operating losses over the next several years as we seek marketing approval for
Epsolay®, conduct Phase I clinical studies of SGT-210 and SGT-310, and advance SGT-210, SGT-310,
SGT-510, and our other investigational product candidates. In addition, Twyneo® and, if approved by the FDA, Epsolay®, and our
other product candidates, may not achieve commercial success. Substantial revenue, if any, will be derived from sales of Twyneo®
and if approved, Epsolay®, and our other product candidates. We have based this estimate on assumptions that may prove to be wrong,
and we could use our capital resources sooner than we currently expect. Our future capital requirements will depend on many factors, including:
| • |
the timing and success for obtaining marketing approval for Epsolay®; |
| • |
the progress and results of our development activities for SGT-210, SGT-310
and SGT-510; |
| • |
the scope, progress, results and costs of development, laboratory testing and clinical trials for our
generic product candidates; |
| • |
the cost of manufacturing clinical supplies and exhibition batches of our investigational product candidates;
|
| • |
the costs, timing and outcome of regulatory reviews of any of our product candidates; |
| • |
the timing of future commercialization activities, including manufacturing, marketing, sales and distribution,
for any of our product candidates for which we receive marketing approval; |
| • |
the costs and timing of preparing, filing and prosecuting patent applications, maintaining and enforcing
our intellectual property rights and defending any intellectual property-related claims by third parties that we are infringing upon their
intellectual property rights; |
| • |
the amount of revenue, if any, received from commercial sales of Twyneo®, Epsolay ® and our
other product candidates for which we receive marketing approval; and |
| • |
the extent to which we acquire or invest in businesses, product candidates and technologies, including
entering into licensing or collaboration arrangements for any of our investigational product candidates. |
In
order to continue our future operations, we will need to raise additional capital until becoming profitable. If we are unable to
raise sufficient additional capital, we could be forced to curtail our planned operations and the pursuit of our growth strategy.
We
are largely dependent on the success of Twyneo®, Epsolay ® and our
other product candidates for the treatment of topical dermatological conditions.
We
have invested a majority of our efforts and financial resources in the research and development of Twyneo® for the treatment of acne
and Epsolay® for the treatment of papulopustular (subtype II) rosacea. In June 2021, we entered into two five-year exclusive license
agreements with Galderma pursuant to which Galderma has the exclusive right to, and is responsible for, all U.S. commercial activities
for Twyneo®, and, if approved by the FDA, Epsolay®. The success of our business depends largely on Galderma's success
in commercializing Twyneo® and Epsolay® and our ability to fund, execute and complete the development of, obtain regulatory
approval for and successfully commercialize our investigational product candidates in the United States in a timely manner.
If
we do not receive FDA approval for the marketing of Epsolay® by March 31, 2022, Galderma has the right to terminate our license agreement
with respect to the Epsolay® product.
In
June 2021, we entered into a five-year exclusive license agreements with Galderma pursuant to which Galderma has the exclusive right
to, and is responsible for, all U.S. commercial activities for Epsolay®, subject to the approval of Epsolay® by the FDA. Pursuant
to the terms of the license agreement, if Epsolay® does not receive marketing approval by the FDA by March 31, 2022, Galderma may,
in its sole discretion, terminate such agreement immediately upon delivery of written notice to us no later than thirty (30) days after
such date. If Eposlay® does not receive regulatory approval by such date, and Galderma elects to terminate the licesne agreement,
we will be required to either locate an alternative commercial partner, or to commercialize Epsolay® on our own through the establishment
of commercialization resources which we do not currently have. Either alternative will be costly and time consuming, and may have a material
adverse impact on our business.
10
Other
than for Twyneo®, we
have not obtained regulatory approval for most of our product candidates in the United States or any other country.
Other
than for Twyneo® and one generic product the rights to which we have since sold and for which our collaborator received final FDA
approval in February 2019, we do not currently have any product candidates, that have obtained regulatory approval for sale in the United
States or any other country, and we cannot guarantee that our product candidates will ever obtain such approvals. Our business is substantially
dependent on our ability to complete the development of, obtain regulatory approval for and successfully commercialize product candidates
in a timely manner. We or our partners cannot commercialize our product candidates in the United States without first obtaining regulatory
approval to market each product candidate from the FDA. Similarly, we or our partners cannot commercialize product candidates outside
of the United States without obtaining regulatory approval from comparable foreign regulatory authorities.
Before
obtaining regulatory approvals for the commercial sale of any product candidate for a target indication, we or our partners must demonstrate
in pre-clinical studies and well-controlled clinical trials that the product candidate is safe and effective for use for its target indication
and that the related manufacturing facilities, processes and controls are adequate. In the United States, we or our partners are required
to submit and obtain the FDA’s approval of a new drug application, or NDA, before marketing our product candidates. An NDA must
include extensive preclinical and clinical data and supporting information to establish the product candidate’s safety and efficacy
for each desired indication and, when subject to the requirements of section 505(b)(2) of the Federal Food, Drug and Cosmetic Act, or
FDCA, we or our partners may rely in part on published scientific literature and/or the FDA’s prior findings of safety and efficacy
in its approvals of similar products. The NDA must also include significant information regarding the chemistry, manufacturing and controls
for the product candidate. The FDA will also inspect our or our partners manufacturing facilities to ensure that the facilities can manufacture
each product candidate that is the subject of an NDA, in compliance with current good manufacturing practice, or cGMP requirements, and
may inspect our or our partners clinical trial sites to ensure that the clinical trials conducted at the inspected site were performed
in accordance with good clinical practices, or GCP, and our or our partners clinical protocols.
To
date, we have submitted two NDAs that were accepted for filing by the FDA, one for Twyneo®, which was subsequently approved by the
FDA, and one for Epsolay® with a Prescription Drug User Fee Act, or PDUFA, goal date originally assigned by the FDA of April
26, 2021, which has since been delayed due to COVID-19 related travel restrictions. The FDA conducted a pre-approval inspection of the
production site for Epsolay® during the week of February 14, 2022.
Approval
to market and distribute drugs that are shown to be equivalent to proprietary drugs previously approved by the FDA through its NDA process
is obtained by submitting an ANDA to the FDA. An ANDA is a comprehensive submission that contains, among other things, data and information
pertaining to the active pharmaceutical ingredient, drug product formulation, specifications and stability of the generic drug, as well
as analytical methods, manufacturing process validation data, and quality control procedures. Premarket applications for generic drugs
are termed abbreviated because they generally do not include pre-clinical and clinical data to demonstrate safety and effectiveness. Instead,
a generic applicant must demonstrate that its product is bioequivalent to the innovator drug.
Obtaining
approval of an NDA or an ANDA is a lengthy, expensive and uncertain process, and approval is never guaranteed. Upon submission of an NDA
or ANDA, the FDA must make an initial determination that the application is sufficiently complete to accept the submission for filing.
We cannot be certain that any submissions will be accepted for filing and review by the FDA, or ultimately be approved. If the application
is not accepted for review or approved, the FDA may require that we or our partners conduct additional clinical trials or pre-clinical
studies or take other actions before it will reconsider our or our partners' application. If the FDA requires us or our partners to provide
additional studies or data to support such applications, we would incur increased costs and delays in the marketing approval process,
which may require us to expend more resources than anticipated or that we have available. In addition, the FDA may not consider any additional
information to be complete or sufficient to support approval.
11
Regulatory
authorities outside of the United States also have requirements for approval of drugs for commercial sale with which we must comply prior
to marketing in those countries. Regulatory requirements can vary widely from country to country and could delay or prevent the introduction
of our product candidates. Clinical trials conducted in one country may not be accepted by regulatory authorities in other countries,
and obtaining regulatory approval in one country does not mean that regulatory approval will be obtained in any other country. However,
the failure to obtain regulatory approval in one jurisdiction could have a negative impact on our ability to obtain approval in a different
jurisdiction. Approval processes vary among countries and can involve additional product candidate testing, development, validation and
additional administrative review periods. Seeking regulatory approval outside of the United States could require additional chemical manufacturing
control data, pre-clinical studies or clinical trials, which could be costly and time consuming. Obtaining regulatory approval outside
of the United States may include all of the risks associated with obtaining FDA approval.
Our
business will be highly dependent on market perception of us and the safety and quality of Twyneo®, Epsolay® and our other investigational
product candidates. Our business or products could be subject to negative publicity, which could have a material adverse effect on our
business.
Market
perception of our business is very important, especially market perception of the safety and quality of our product candidates. If Twyneo®,
Epsolay® any of our other investigational product candidates, or similar products that other companies distribute, or third-party
products from which our investigational product candidates are derived, are subject to market withdrawal or recall or are proven to be,
or are claimed to be, harmful to consumers, it could have a material adverse effect on our business. Negative publicity associated with
product quality, illness or other adverse effects resulting from, or perceived to result from, our product candidates could have a material
adverse impact on our business.
Additionally,
continuing and increasingly sophisticated studies of the proper utilization, safety and efficacy of pharmaceutical products are being
conducted by the industry, government agencies and others which could call into question the utilization, safety and efficacy of previously
marketed products. In some cases, studies have resulted, and may in the future result, in the discontinuance of product marketing or other
costly risk management programs such as the need for a patient registry.
Although
we have entered into exclusive license agreements with Galderma for all U.S. commercial activities for Twyneo®, and, if approved
by the FDA, Epsolay®, we have a limited operating history in the dermatological prescription drug space which may make it difficult
to evaluate the success of our business to date and to assess our future viability.
We
have a limited operating history in the dermatological prescription drug space and have focused much of our efforts, to date, on the research
and development of our investigational and generic product candidates, rather than commercialization. In June 2021, we entered into two
five-year exclusive license agreements with Galderma pursuant to which Galderma has the exclusive right to, and is responsible for,
all U.S. commercial activities for Twyneo®, and, if approved by the FDA, Epsolay®. We also expect to collaborate with
third parties that have sales and marketing experience in order to commercialize Twyneo ® and Epsolay ® in other territories,
and our other investigational product candidates, in lieu of our own sales force and distribution systems. We cannot provide you
with any assurances as to when, if ever, we will obtain approvals or generate sufficient revenues to achieve sustained profitability.
Our ability to successfully commercialize our product candidates and become profitable is subject to a number of challenges, including,
among others, that:
| • |
we may not have adequate financial or other resources; |
| • |
we or our partners may not be able to manufacture our product candidates in commercial quantities, in
an adequate quality or at an acceptable cost; |
| • |
we or our partners may not be able to establish adequate sales, marketing and distribution channels for
our product candidates; |
12
| • |
we or our partners may not be able to find suitable co-development, contract manufacturing or marketing
partners; |
| • |
healthcare professionals and patients may not accept our product candidates; |
| • |
we may not be aware of possible complications from the continued use of our investigational product candidates
since we have limited clinical experience with respect to the actual use of our investigational product candidates; |
| • |
changes in the market, new alliances between existing market participants and the entrance of new market
participants may interfere with our or our partners market penetration efforts; |
| • |
third-party payors may not agree to reimburse patients for any or all of the purchase price of our product
candidates, which may adversely affect patients’ willingness to purchase our product candidates; |
| • |
uncertainty as to market demand may result in inefficient pricing of our product candidates; |
| • |
we may face third-party claims of intellectual property infringement; |
| • |
we or our partners may fail to obtain and maintain regulatory approvals for our product candidates in
our target markets or may face adverse regulatory or legal actions relating to our product candidates even if regulatory approval is obtained;
|
| • |
we are dependent upon the results of ongoing clinical trials relating to our product candidates and the
products of our competitors; |
| • |
we may become involved in lawsuits pertaining to our clinical trials; and |
| • |
delays due to shortages in supply and human resources resulting from the COVID-19 pandemic. |
The
occurrence of any one or more of these events may limit our or our partners' ability to successfully commercialize our product candidates,
which in turn could have a material adverse effect on our business, financial condition and results of operations. Consequently, there
can be no guaranty of the accuracy of any predictions about our future success or viability.
Raising
additional capital may cause dilution to our shareholders, restrict our operations or require us to relinquish rights to our technologies
or product candidates.
Until
such time, if ever, as we can generate substantial revenue, we may finance our cash needs through a combination of equity offerings, debt
financings and license and collaboration agreements. We do not currently have any committed external source of funds. To the extent that
we raise additional capital through the sale of equity or convertible debt securities, your ownership interest will be diluted, and the
terms of these securities may include liquidation or other preferences that adversely affect your rights as an ordinary shareholder. Debt
financing and preferred equity financing, if available, may involve agreements that include covenants limiting or restricting our ability
to take specific actions, such as incurring additional debt, making capital expenditures or declaring dividends.
If
we raise additional funds through collaborations, strategic alliances or marketing, distribution or licensing arrangements with third
parties, we may be required to relinquish valuable rights to our technologies, future revenue streams or product candidates or grant licenses
on terms that may not be favorable to us. If we are unable to raise additional funds through equity or debt financings when needed, we
may be required to delay, limit, reduce or terminate our product development or future commercialization efforts or grant rights to develop
and market product candidates that we would otherwise prefer to develop and market ourselves.
13
Even
if we are able to generate revenues from our operations in the future, our revenues and operating income could fluctuate significantly.
Even
if we are able to generate future revenues, our operating income, and results may vary significantly from year-to-year and quarter-to-quarter.
Variations may result from, among other factors:
| • |
the timing of any FDA or other regulatory authority approvals; |
| • |
the timing of process validation for particular product candidates; |
| • |
the timing of product candidates launches and market acceptance of such product candidates launched;
|
| • |
changes in the amount we spend to research, develop, acquire, license or promote new product candidates;
|
| • |
the timing and outcome of our research, development and clinical trial programs; |
| • |
serious or unexpected health or safety concerns related to Twyneo®, Epsolay® or our other product
candidates; |
| • |
the introduction of new products by others that render our product candidates obsolete or noncompetitive;
|
| • |
the ability to maintain selling prices and gross margins on our product candidates; |
| • |
the ability to comply with complex governmental regulations applicable to many aspects of our business;
|
| • |
changes in coverage and reimbursement policies of health plans and other health insurers, including changes
to Medicare, Medicaid and similar government healthcare programs; |
| • |
increases in the cost of raw materials used to manufacture our product candidates; |
| • |
manufacturing and supply interruptions, including of utensils, raw materials and product rejections or
recalls due to failure to comply with manufacturing specifications; |
| • |
timing of revenue recognition related to our collaboration agreements; |
| • |
the ability to protect our intellectual property and avoid infringing the intellectual property of others;
and |
| • |
the outcome and cost of possible litigation over patents with third parties. |
Risks Related to Development
and Clinical Testing of Our Product Candidates
Clinical
drug development involves a lengthy and expensive process with an uncertain outcome, and results of earlier studies and clinical trials
may not be predictive of future trial results, which could result in development delays or a failure to obtain marketing approval.
Clinical
testing, of both innovative and generic products, and the submission of new drug applications under the Sections 505(b)(1) and 505(b)(2)
regulatory pathway is expensive, time consuming and has an inherently uncertain outcome. Failure can occur at any time during the clinical
trial process, even with active ingredients that have been previously approved by the FDA as safe and effective. Favorable results in
pre-clinical studies and early clinical trials for one or more of our product candidates may not be predictive of similar results in future
clinical trials for such product candidate. Also, interim results during a clinical trial do not necessarily predict final results. Product
candidates in later stages of clinical trials may fail to show the desired safety and efficacy traits despite having progressed through
pre-clinical studies and initial clinical trials. A number of companies in the pharmaceutical and biotechnology industries have suffered
significant setbacks in clinical trials even after achieving promising results in early-stage development. Accordingly, the results from
the completed pre-clinical studies and clinical trials for our product candidates may not be predictive of the results we may obtain in
later stage trials for such product candidates. Our and our partners clinical trials may produce negative or inconclusive results, and
we may decide, or regulators may require us, to conduct additional clinical trials. Clinical trial results may be inconclusive, or contradicted
by other clinical trials, particularly larger clinical trials. Moreover, clinical data are often susceptible to varying interpretations
and analyses, and many companies that believed their product candidates performed satisfactorily in pre-clinical studies and clinical
trials have nonetheless failed to obtain FDA, or other applicable regulatory agency, approval for their products.
14
We
or our partners may experience delays in our clinical trials, and we do not know whether planned clinical trials will begin on time, need
to be redesigned, enroll patients on time or be completed on schedule, if at all. Clinical trials can be delayed for a variety of reasons,
including delays related to:
| • |
inability to generate sufficient preclinical, toxicology, or other in vivo or in vitro data to support
the initiation or continuation of clinical trials; |
| • |
reaching a consensus with regulatory authorities on study design or implementation of clinical trials;
|
| • |
obtaining regulatory authorization to commence a trial; |
| • |
reaching agreement on acceptable terms with prospective contract research organizations, or CROs, and
clinical trial sites, the terms of which can be subject to extensive negotiation and may vary significantly among different CROs and trial
sites; |
| • |
identifying, recruiting and training suitable clinical investigators; |
| • |
obtaining institutional review board, or IRB, or ethics committee approval at each site; |
| • |
recruiting suitable patients to participate in a trial; |
| • |
having patients complete a trial or return for post-treatment follow-up; |
| • |
clinical sites deviating from FDA regulations, including GCPs, or the study protocol, or dropping out
of a trial; |
| • |
adding new clinical trial sites; |
| • |
occurrence of adverse events associated with the product candidate that are viewed to outweigh its potential
benefits, or occurrence of adverse events in trial of the same class of agents conducted by other companies; |
| • |
the cost of clinical trials of our product candidates being greater than we or our partners anticipate;
|
| • |
transfer of manufacturing processes to larger-scale facilities operated by a contract manufacturing organization,
or CMO, and delays or failure by our or our partners CMOs or us to make any necessary changes to such manufacturing process; |
| • |
third parties being unwilling or unable to satisfy their contractual obligations to us; |
15
| • |
manufacturing sufficient quantities of a product candidate for use in clinical trials; and |
| • |
damage to clinical supplies of a product candidate caused during storage and/or transportation.
|
In
addition, disruptions caused by the COVID-19 pandemic may increase the likelihood that we encounter such difficulties or delays in initiating,
enrolling, conducting or completing our planned and ongoing clinical trials. We may also encounter delays if a clinical trial is suspended
or terminated by us, by the IRBs of the institutions in which such trials are being conducted, by any Data Safety Monitoring Board for
such trial, by the FDA or other regulatory authorities. Such authorities may impose such a suspension or termination due to a number of
factors, including failure to conduct the clinical trial in accordance with regulatory requirements or our clinical protocols, inspection
of the clinical trial operations or trial site by the FDA or other regulatory authorities resulting in the imposition of a clinical hold,
unforeseen safety issues or adverse side effects, failure to demonstrate a benefit from using a drug, changes in governmental regulations
or administrative actions or lack of adequate funding to continue the clinical trial. If we or our partners experience delays in the completion
of any clinical trial for our product candidates or if any clinical trials are terminated, the commercial prospects of our product candidates
will be harmed, and our ability to generate product revenues from any of these product candidates will be delayed.
Moreover,
changes in regulatory requirements and guidance or unanticipated events during our or our partners clinical trials may occur, as a result
of which we or our partners may need to amend clinical trial protocols. Amendments may require us or our partners to resubmit our clinical
trial protocols for review and approval, which may adversely affect the cost, timing and successful completion of a clinical trial. If
we or our partners experience delays in the completion of, or if we or our partners terminate, any of our clinical trials, the commercial
prospects for our affected product candidates would be harmed and our ability to generate product revenue would be delayed, possibly materially.
Any
delays in completing our or our partners clinical trials will increase our costs, slow down our product candidates’ development
and regulatory review and approval process and jeopardize our or our partners ability to commence product sales and generate revenues.
Any of these occurrences may harm our business, financial condition and prospects significantly. In addition, many of the factors that
cause, or lead to, a delay in the commencement or completion of clinical trials may also ultimately lead to the denial of regulatory approval
of our product candidates.
The
regulatory approval processes of the FDA and comparable foreign authorities are lengthy, time consuming and inherently unpredictable,
and if we are ultimately unable to obtain regulatory approval for our product candidates, our business will be substantially harmed.
The
time required to obtain approval by the FDA and comparable foreign authorities is unpredictable but typically takes many years following
the commencement of clinical trials and depends upon numerous factors, including the substantial discretion of the regulatory authorities.
In addition, approval policies, regulations, or the type and amount of clinical data necessary to gain approval may change during the
course of a product candidate’s clinical development and may vary among jurisdictions. Although the FDA has approved Twyneo®
for marketing, it is possible that none of our existing product candidates or any product candidates we may seek to develop in the future
will ever obtain regulatory approval.
Our
product candidates could fail to receive regulatory approval for many reasons, including the following:
| • |
the FDA or comparable foreign regulatory authorities may disagree with the design or implementation of
our clinical trials; |
| • |
we may be unable to demonstrate to the satisfaction of the FDA or comparable foreign regulatory authorities
that a product candidate is safe and effective for its proposed indication; |
| • |
the results of clinical trials may not meet the level of statistical significance required by the FDA
or comparable foreign regulatory authorities for approval; |
16
| • |
we may be unable to demonstrate that a product candidate’s clinical and other benefits outweigh
its safety risks; |
| • |
the FDA or comparable foreign regulatory authorities may disagree with our interpretation of data from
pre-clinical studies or clinical trials; |
| • |
the data collected from clinical trials of our product candidates may not be sufficient to support the
submission of an NDA or other submission or to obtain regulatory approval in the United States or elsewhere; |
| • |
the FDA or comparable foreign regulatory authorities may fail to approve the manufacturing processes
or facilities of third-party manufacturers with which we contract for clinical and commercial supplies; or |
| • |
the approval policies or regulations of the FDA or comparable foreign regulatory authorities may significantly
change in a manner rendering our clinical data insufficient for approval. |
This
lengthy approval process as well as the unpredictability of future clinical trial results may result in our failing to obtain regulatory
approval to market our product candidates, which would significantly harm our business, results of operations and prospects.
In
addition, even if we were to obtain approval, regulatory authorities may approve any of our product candidates for fewer or more limited
indications than we request, may not approve the price we intend to charge for our product candidates, may grant approval contingent on
the performance of costly post-marketing clinical trials, or may approve a product candidate with a label that does not include the labeling
claims necessary or desirable for the successful commercialization of that product candidate. Any of the foregoing scenarios could materially
harm the commercial prospects for our product candidates.
We
have limited experience using the 505(b)(1) and 505(b)(2) regulatory pathway to submit an NDA or any similar drug approval filing to the
FDA, and we cannot be certain that any of our product candidates will receive regulatory approval. If we do not receive regulatory approvals
for our product candidates, we may not be able to continue our operations. Our revenue will be dependent, to a significant extent, upon
the size of the markets in the territories for which we gain regulatory approval, if such approval is obtained in the case of our investigational
product candidates. If the markets for patients or indications that we are targeting are not as significant as we estimate, we may not
generate significant revenue from sales of such products, if approved by the FDA.
Adverse
side effects or other safety risks associated with our product candidates could delay or preclude approval, cause us to suspend, discontinue
clinical trials or abandon product candidates. Adverse side effects or other safety risks associated with Twyneo®, Epsolay®
or, our other product candidates, could limit the commercial profile of an approved label, or result in significant negative
consequences following commercialization, if any.
Undesirable
side effects caused by our product candidates could result in the delay, suspension or termination of clinical trials by us, our collaborators,
the FDA or other regulatory authorities for a number of reasons. For example, to date, patients treated with Twyneo® and Epsolay®
have experienced drug-related side effects including moderate local site irritation such as dryness, erythema, scaling, pruritus, itching,
stinging and burning. Results of our clinical trials for other product candidates could reveal a high and unacceptable severity and prevalence
of these or other side effects. In such an event, our clinical trials could be suspended or terminated, and the FDA or comparable foreign
regulatory authorities could order us to cease further development of or deny approval of our product candidates for any or all targeted
indications. The drug-related side effects could affect patient recruitment or the ability of enrolled patients to complete the trial
or result in potential product liability claims. If we or our partners elect or are required to delay, suspend or terminate any clinical
trial for any product candidates that we develop, the commercial prospects of such product candidates will be harmed and our ability to
generate product revenues from any of these product candidates will be delayed or eliminated. Any of these occurrences may harm our business,
prospects, financial condition and results of operations significantly.
17
Additionally,
with respect to Twyneo®, Epsolay® and, with respect to one or more of our other product candidates, if we or others later identify
undesirable side effects caused by such products, a number of potentially significant negative consequences could result, including:
|
• |
regulatory authorities may withdraw approvals of
such products; |
|
• |
regulatory authorities may require additional warnings
on the label; |
|
• |
we may be required to create a medication guide
outlining the risks of such side effects for distribution to patients; |
|
• |
we may be required to implement a risk evaluation
and mitigation strategy, or REMS, which may include a medication guide or patient package insert, a communication plan to educate healthcare
providers of the drug’s risks, or other elements to assure safe use; |
|
• |
we could be sued and held liable for harm caused
to patients; and |
|
• |
our reputation may suffer. |
Any
of these events could prevent us from achieving or maintaining market acceptance of Twyneo® Epsolay® or our other products candidates,
and could significantly harm our business, results of operations and prospects. Our future clinical trial results may not be successful.
We
may find it difficult to enroll patients in our clinical trials, and patients could discontinue their participation in our or our partners
clinical trials, which could delay or prevent clinical trials for our product candidates.
Identifying
and qualifying patients to participate in clinical trials for our product candidates is critical to our success. The timing of our clinical
trials depends on the speed at which we or our partners can recruit patients to participate in testing our product candidates. Some of
the indications we are pursuing include orphan diseases for which the patient population in significantly small. If we or our partners
are unable to locate qualified patients or if patients are unwilling to participate in our or our partners clinical trials because of
negative publicity from adverse events in the biotechnology or pharmaceutical industries or for other reasons, including competitive clinical
trials for similar patient populations, the timeline for recruiting patients, conducting clinical trials and obtaining regulatory approval
of product candidates may be delayed. These delays could result in increased costs, delays in advancing our product candidates development,
delays in testing the effectiveness of our technology or termination of the clinical trials altogether.
Patient
enrollment is a significant factor in the timing of clinical trials. We or our partners may not be able to recruit and enroll a sufficient
number of patients, which would impact our or our partners' ability to complete clinical trials in a timely manner. Patient enrollment
may be affected by numerous factors, including:
| • |
severity of the disease under investigation; |
| • |
size and nature of the patient population; |
| • |
eligibility criteria for the trial; |
| • |
design of the trial protocol; |
18
| • |
perceived risks and benefits of the product candidate under study; |
| • |
physicians’ and patients’ perceptions as to the potential advantages of the drug being studied
in relation to other available therapies, including any drugs that may be approved for the same indications we are investigating;
|
| • |
proximity to and availability of clinical trial sites for prospective patients; |
| • |
availability of competing therapies and clinical trials; |
| • |
ability to monitor patients adequately during and after treatment; and |
| • |
COVID-19 restrictions and guidelines. |
We
or our partners face intense competition with regard to patient enrollment in clinical trials from other dermatological companies which
also seek to enroll subjects from the same patient populations. In addition, patients enrolled in our clinical trials may discontinue
their participation at any time during the trial as a result of a number of factors, including withdrawing their consent or experiencing
adverse clinical events, which may or may not be judged related to our product candidates under evaluation. For example, 104 patients,
or 12.12% of patients enrolled in our Twyneo® Phase 3 clinical trial, did not complete the study protocol. The most common reasons
for subjects not completing the study were the withdrawal of informed consent (41 subjects), loss to follow-up (36 subjects) and adverse
events (16 subjects). The discontinuation of patients in any one of our trials may cause us to delay or abandon our clinical trial or
cause the results from that trial not to be positive or sufficient to support a filing for regulatory approval of the applicable product
candidate.
There
is a substantial risk of product liability claims in our business. We currently do not maintain product liability insurance and a product
liability claim against us would adversely affect our business.
Our
business exposes us to significant potential product liability risks that are inherent in the development, manufacturing and marketing
of our product candidates. Product liability claims could delay or prevent completion of our development programs. If we or our partners
succeed in commercializing our product candidates, such claims could result in a recall of our product candidates or a change in the approved
indications for which they may be used. While we intend to purchase and maintain product liability insurance that we believe is adequate
for our operations upon commercialization of our product candidates, such coverage may not be adequate to cover any incident or all incidents.
Furthermore, product liability insurance is becoming increasingly expensive. As a result, we may be unable to maintain sufficient insurance
at a reasonable cost to protect us against losses that could have a material adverse effect on our business. These liabilities could prevent
or interfere with our product development and commercialization efforts.
If
the FDA does not conclude that our product candidates for which we are seeking or intend to seek approval under Section 505(b)(1) or 505(b)(2)
of the Federal Food, Drug, and Cosmetic Act satisfy the requirements of the applicable regulatory approval pathway, or if the requirements
for such product candidates under Section 505(b)(1) or 505(b)(2) are not as we expect, the approval pathway for those product candidates
will likely take significantly longer, cost significantly more and entail significantly greater complications and risks than anticipated,
and in all cases may not be successful.
Section
505 of the FDCA describes three types of new drug applications: (1) an application that contains full reports of investigations
of safety and effectiveness, or a Section 505(b)(1) NDA; (2) an application that contains full reports of investigations of safety and
effectiveness but where at least some of the information required for approval comes from studies not conducted by or for the applicant
and for which the applicant has not obtained a right of reference, or a Section 505(b)(2) NDA; and (3) an application that contains information
to show that the proposed product is identical in active ingredient, dosage form, strength, route of administration, labeling, quality,
performance characteristics, and intended use, among other things, to a previously approved product, or a Section 505(j) ANDA. We are
developing product candidates for which we are seeking or intend to seek FDA approval through each of these regulatory pathways. Both
Twyneo® and Epsolay were submitted for approval in Section 505(b)(2) NDAs, which Epsolay remains pending, and we may develop and
seek approval for our other product candidates through this regulatory pathway in the future. In addition, we are developing SGT-310 for
potential submission through the Section 505(b)(1) regulatory pathway, and may utilize this pathway for other future product candidates.
19
Section
505(b)(2), if applicable to us under the FDCA, would allow an NDA we submit to the FDA to rely in part on data in the public domain or
the FDA’s prior conclusions regarding the safety and effectiveness of approved drugs, which could expedite the development program
for our product candidates by potentially decreasing the amount of clinical data that we would need to generate in order to obtain FDA
approval. If the FDA does not allow us to pursue the Section 505(b)(2) regulatory pathway as anticipated, we may need to conduct additional
clinical trials, provide additional data and information, and meet additional standards for regulatory approval. If this were to occur,
the time and financial resources required to obtain FDA approval for these product candidates, and complications and risks associated
with these product candidates, would likely substantially increase. Moreover, any inability to pursue the Section 505(b)(2) regulatory
pathway may result in new competitive products reaching the market more quickly than our product candidates, which would likely materially
adversely impact our competitive position and prospects. Even if we are allowed to pursue the Section 505(b)(2) regulatory pathway, our
product candidates may not receive the requisite approvals for commercialization.
In
addition, the pharmaceutical industry is highly competitive, and both ANDAs and Section 505(b)(2) NDAs are subject to special requirements
designed to protect the patent rights of sponsors of previously approved drugs that are referenced in an ANDA or Section 505(b)(2) NDA.
These requirements may give rise to patent litigation and mandatory delays in approval of our applications for up to 30 months or longer
depending on the outcome of any litigation. It is not uncommon for a manufacturer of an approved product to file a citizen petition with
the FDA seeking to delay approval of, or impose additional approval requirements for, pending competing products. If successful, such
petitions can significantly delay, or even prevent, the approval of the new product. However, even if the FDA ultimately denies such a
petition, the FDA may substantially delay approval while it considers and responds to the petition. In addition, even if we are able to
utilize the Section 505(b)(2) regulatory pathway, there is no guarantee this would ultimately lead to accelerated product development
or earlier approval.
Further,
we are currently developing SGT-310 (tapinarof) for potential submission through the Section 505(b)(1) regulatory pathway. Although this
pathway is not subject to the same patent certification requirements as Section 505(b)(2) applications or ANDAs, we may still face patent
litigation in connection with this product development program. In addition, if the FDA disagrees that our clinical data is sufficient
for submission in a Section 505(b)(1) NDA, we may not be able to seek or obtain approval for this product on the time line we expect,
if at all.
Twyneo®,
Epsolay® and our other product candidates, may continue to face future developmental and regulatory difficulties. In addition, we
will be subject to ongoing obligations and continued regulatory review.
Even
if we complete clinical testing and receive approval of any of our product candidates, the FDA may grant approval contingent on the performance
of additional post-approval clinical trials, risk mitigation requirements such as the implementation of a or REMS, and/or surveillance
requirements to monitor the safety or efficacy of the product, which could negatively impact us by reducing revenues or increasing expenses,
and cause the approved product candidate not to be commercially viable. Absence of long-term safety data may further limit the approved
uses of our product candidates, if any.
The
FDA also may approve our product candidates for a more limited indication or a narrower patient population than we initially request,
or may not approve the labeling that we believe is necessary or desirable for the successful commercialization of our product candidates.
Furthermore, Twyneo®, and any such approved product will remain subject to extensive regulatory requirements, including requirements
relating to manufacturing, labeling, packaging, adverse event reporting, storage, advertising, promotion, distribution and recordkeeping.
These requirements include registration with the FDA, listing of our product candidates, payment of annual fees, as well as continued
compliance with GCP requirements for any clinical trials that we or our partners conduct post-approval. Application holders must notify
the FDA, and depending on the nature of the change, obtain FDA pre-approval for product manufacturing changes. In addition, manufacturers
of drug products and their facilities are subject to continual review and periodic inspections by the FDA and other regulatory authorities
for compliance with cGMP requirements.
20
If
we or our partners fail to comply with the regulatory requirements of the FDA or previously unknown problems with any approved commercial
products, manufacturers or manufacturing processes are discovered, we could be subject to administrative or judicially imposed sanctions
or other setbacks, including the following:
| • |
the FDA could suspend or impose restrictions on operations, including costly new manufacturing requirements;
|
| • |
the FDA could refuse to approve pending applications or supplements to applications; |
| • |
the FDA could suspend any ongoing clinical trials; |
| • |
the FDA could suspend or withdraw marketing approval; |
| • |
the FDA could seek an injunction or impose civil or criminal penalties or monetary fines; |
| • |
the FDA could ban or restrict imports and exports; |
| • |
the FDA could issue warning letters or untitled letters or similar enforcement actions alleging noncompliance
with regulatory requirements; or |
| • |
the FDA or other governmental authorities could take other actions, such as imposition of product seizures
or detentions, clinical holds or terminations, refusals to allow the import or export of products, disgorgement, restitution, or exclusion
from federal healthcare programs. |
In
addition, our or our partners product labeling, advertising and promotional materials for our product candidates, if approved by the FDA,
would be subject to regulatory requirements and continuing review by the FDA. The FDA strictly regulates the promotional claims that may
be made about prescription products. In particular, a product may not be promoted for uses that are not approved by the FDA as reflected
in the product’s approved labeling, a practice known as off-label promotion. Physicians may nevertheless prescribe Twyneo®,
Epsolay® and, any of our other product candidates, to their patients in a manner that is inconsistent with the approved label. If
we are found to have promoted such off-label uses, we may become subject to significant liability and government fines. The FDA and other
agencies actively enforce the laws and regulations prohibiting the promotion of off-label uses, and a company that is found to have improperly
promoted off-label uses may be subject to significant sanctions. The federal government has levied large civil and criminal fines against
companies for alleged improper promotion and has enjoined several companies from engaging in off-label promotion. The FDA has also requested
that companies enter into consent decrees of permanent injunctions under which specified promotional conduct is changed or curtailed.
Moreover,
the FDA’s policies may change and additional government regulations may be enacted that could prevent, limit or delay marketing
approval of our investigational product candidates, and the sale and promotion of Twyneo® Epsolay® and, our other product candidates.
We also cannot predict the likelihood, nature or extent of government regulation that may arise from future legislation or administrative
action, either in the United States or abroad. If we are slow or unable to adapt to changes in existing requirements or the adoption of
new requirements or policies, or if we are not able to maintain regulatory compliance, we may be subject to enforcement action and we
may not achieve or sustain profitability.
21
Disruptions
at the FDA and other government agencies caused by Covid-19 and funding shortages or global health concerns could hinder their
ability to hire, retain or deploy key leadership and other personnel, or otherwise prevent new or modified products from being developed,
approved or commercialized in a timely manner or at all, which could negatively impact our business.
The
ability of the FDA to review and approve new products can be affected by a variety of factors, including government budget and
funding levels, statutory, regulatory, and policy changes, the FDA’s ability to hire and retain key personnel and accept the payment
of user fees, and other events that may otherwise affect the FDA’s ability to perform routine functions. Average review times at
the agency have fluctuated in recent years as a result. In addition, government funding of other government agencies that fund research
and development activities is subject to the political process, which is inherently fluid and unpredictable. Disruptions at the FDA and
other agencies may also slow the time necessary for new drugs or modifications to approved drugs to be reviewed and/or approved by necessary
government agencies, which would adversely affect our business. For example, over the last several years, including for 35 days
beginning on December 22, 2018, the U.S. government has shut down several times and certain regulatory agencies, such as the FDA,
have had to furlough critical FDA employees and stop critical activities.
Separately,
in response to the COVID-19 pandemic, on March 10, 2020 the FDA announced its intention to postpone most foreign inspections of manufacturing
facilities, and subsequently, on March 18, 2020, the FDA temporarily postponed routine surveillance inspections of domestic manufacturing
facilities and clinical trial sites. Subsequently, on July 10, 2020 the FDA announced its intention to resume certain on-site inspections
of domestic manufacturing facilities and trial sites subject to a risk-based prioritization system. The FDA utilized this risk-based assessment
system to assist in determining when and where it was safest to conduct prioritized domestic inspections. Additionally, on April 15, 2021,
the FDA issued a guidance document in which the FDA described its plans to conduct voluntary remote interactive evaluations of certain
drug manufacturing facilities and clinical research sites, among other facilities. Recently, the FDA has continued to monitor and implement
changes to its inspectional activities to ensure the safety of its employees and those of the firms it regulates as it adapts to the evolving
COVID-19 pandemic. If a prolonged government shutdown occurs, or if global health concerns continue to prevent the FDA
or other regulatory authorities from conducting their regular inspections, reviews, or other regulatory activities, it could significantly
impact the ability of the FDA or other regulatory authorities to timely review and process our regulatory submissions, which could have
a material adverse effect on our business.
Twyneo®,
Epsolay ® and our other product candidates, if they receive regulatory approval, may fail to achieve the broad degree of physician
adoption and market acceptance necessary for commercial success.
The
commercial success of Twyneo® Epsolay® and our other product candidates, will depend significantly on their broad adoption by
dermatologists, pediatricians and other physicians for approved indications and other therapeutic or aesthetic indications that we may
seek to pursue if approved by the FDA.
The
degree and rate of physician and patient adoption of Twyneo® Epsolay® and our other product candidates, will depend on a number
of factors, including:
| • |
the clinical indications for which the product is approved; |
| • |
the safety and efficacy of our product as compared to existing therapies for those indications;
|
| • |
the prevalence and severity of adverse side effects; |
| • |
patient satisfaction with the results and administration of our product and overall treatment experience,
including relative convenience, ease of use and avoidance of, or reduction in, adverse side effects; |
| • |
patient demand for the treatment of acne and rosacea or other indications; |
| • |
the cost of treatment in relation to alternative treatments, the extent to which these costs are reimbursed
by third-party payors, and patients’ willingness to pay for our product candidates; and |
| • |
the effectiveness of our sales and marketing efforts, including any head-to-head studies, if conducted,
especially the success of any targeted marketing efforts directed toward dermatologists, pediatricians, other physicians, clinics and
any direct-to-consumer marketing efforts we may initiate. |
22
We
expend a significant amount of resources on research and development efforts that may not lead to successful product candidate introductions
or the recovery of our research and development expenditures.
We
conduct research and development primarily to enable us to manufacture and market topical dermatological creams containing drugs in accordance
with FDA regulations as well as other regulatory authorities. We spent approximately $40.6 million, $27.9 million and $20.4 million on
research and development activities during the years ended December 31, 2019, 2020 and 2021, respectively. We are required to obtain
FDA approval before marketing our product candidates in the United States. The FDA approval process is costly, time consuming and inherently
risky.
We
cannot be certain that any investment made in developing product candidates will be recovered, even if we are successful in commercialization.
To the extent that we expend significant resources on research and development efforts and are not able to introduce successful new product
candidates as a result of those efforts, we will be unable to recover those expenditures.
Our
clinical trials for Twyneo®, Epsolay® and our other investigational product candidates were not, and will not be, conducted
head-to-head with the applicable leading products of our competitors, and the comparison of our results to those of existing drugs, and
the conclusions we have drawn from such comparisons, may be inaccurate.
Our
clinical trials for Twyneo®, Epsolay® and our other investigational product candidates were not, and will not be, conducted
head-to-head with the drugs considered the applicable standard of care for the relevant indications. This means that none of the patient
groups participating in these trials were, and will not in the future be, treated with the applicable standard of care drugs alongside
the groups treated with our investigational product candidates. Instead, we have compared and plan to continue comparing the results of
our clinical trials with historical data from prior clinical trials conducted by third parties for the applicable standard of care drugs,
and which results are presented in their respective product labels.
Direct
comparison generally provides more reliable information about how two or more drugs compare, and reliance on indirect comparison for evaluating
their relative efficacy or other qualities is problematic due to lack of objective or validated methods to assess trial similarity. For
example, the various trials were likely conducted in different countries with different demographic features and in patients with different
baseline conditions and different hygiene standards, among other relevant asymmetries. Therefore, the conclusions we have drawn from comparing
the results of our clinical trials with those published in the product labels for these current standard of care drugs, including conclusions
regarding the relative efficacy and expediency of Twyneo® and Epsolay ®, may be distorted by the inaccurate methodology of the
comparison. Moreover, the FDA generally requires head-to-head studies to make labeling and advertising claims regarding superiority or
comparability, and our failure to collect head-to-head data may limit the types of claims we may make for Twyneo® , Epsolay ®
and, our other investigational product candidates.
We
may be subject to risk as a result of international manufacturing operations.
Certain
of our product candidates may be manufactured, warehoused and/or tested at third-party facilities located in territories outside of Israel,
in addition to our facility in Israel, and therefore our operations are subject to risks inherent in doing business internationally. Such
risks include the adverse effects on operations from corruption, war, public health crises, such as pandemics and epidemics (including
Covid-19), international terrorism, civil disturbances, political instability, governmental activities, deprivation of contract and property
rights and currency valuation changes. Any of these changes could have a material adverse effect on our reputation, business, financial
condition or results of operations.
23
The
ongoing COVID-19 pandemic may adversely affect our business, revenues, results of operations and financial condition.
Outbreaks
of epidemic, pandemic or contagious diseases, such as SARS-CoV-2, may adversely affect our business, financial condition and results of
operations. The global spread of the SARS-CoV-2 has resulted in government-imposed quarantines, travel restrictions, stay-at-home-orders
and other public health safety measures in the United States, Israel, and other affected countries. These precautionary measures have
and may continue to have an adverse effect on the global markets and its economy and demand for pharmaceutical products, including on
the availability and pricing of employees, resources, materials, manufacturing and delivery efforts and other aspects of the global economy.
In addition, conducting clinical trials during the COVID-19 pandemic requires the adoption of special procedures and in general slows
down participant enrollment. The spread of this pandemic has caused significant volatility and uncertainty in U.S. and international markets
and has resulted in increased risks to our operations.
Specifically,
we are monitoring several risks that have or may affect our business related to this pandemic. For example, the COVID-19 pandemic has
reduced the revenue from sales of one of our generic products due to travel restrictions and stay-at-home-orders. In addition, the COVID-19
pandemic has adversely affected and may continue to adversely affect our ability to manufacture Twyneo®
and Epsolay® at the times and facilities we planned
to do so. Moreover, quarantines, shelter-in-place and similar government orders, travel restrictions, stay-at-home-orders and health impacts
of the COVID-19 pandemic have and in the future could impact the availability or productivity of personnel at third-party manufacturers,
distributors, freight carriers and other necessary components of our supply chain. In addition, there may be unfavorable changes in the
availability or cost of raw materials, intermediates and other materials necessary for production, which may result in disruptions in
our supply chain.
As
COVID-19 continues to spread in the United States and elsewhere, we may experience disruptions that could severely impact our preclinical
studies and clinical trials, including:
| • |
delays or difficulties in supervising the efforts of our contract manufacturers because of travel restrictions,
sickness of our or the contract manufacturer employees or their families, the desire of employees to avoid travel or contact with large
groups of people, an increased reliance on working from home, school closures or mass transit disruptions; |
| • |
delays or difficulties in enrolling patients in our and our partners clinical trials; |
| • |
delays or difficulties in initiating or expanding clinical trials, including delays or difficulties with
clinical site initiation and recruiting clinical site investigators and clinical site staff; |
| • |
increased rates of patients withdrawing from our or our partners clinical trials following enrollment
as a result of contracting COVID-19 or other health conditions or being forced to quarantine; |
| • |
interruption of key clinical trial activities, such as clinical trial site data monitoring and efficacy
and safety data collection, processing and analyses, due to limitations on travel imposed or recommended by federal, state or local governments,
employers and others or interruption of clinical trial subject visits, which may impact the collection and integrity of subject data and
clinical study endpoints; |
| • |
diversion of healthcare resources away from the conduct of clinical trials, including the diversion of
hospitals serving as our clinical trial sites and hospital staff supporting the conduct of our clinical trials; |
| • |
delays or disruptions in preclinical experiments and IND-enabling studies due to restrictions of on-site
staff and unforeseen circumstances at contract research organizations, or CROs, and vendors; |
24
| • |
interruption or delays in the operations of the FDA and comparable foreign regulatory agencies;
|
| • |
interruption of, or delays in receiving, supplies of our product candidates or of animals for clinical
trials from our service providers and our and our partners contract manufacturing organizations due to staffing shortages, production
slowdowns or stoppages and disruptions in delivery systems; |
| • |
delays in receiving authorization from local regulatory authorities to initiate our or our partners planned
clinical trials; |
| • |
limitations on employee or other resources that would otherwise be focused on the conduct of our or our
partners clinical trials and pre-clinical work, including because of sickness of employees or their families, the desire of employees
to avoid travel or contact with large groups of people, an increased reliance on working from home, school closures or mass transit disruptions;
|
| • |
changes in regulations as part of a response to the COVID-19 pandemic which may require us or our partners
to change the ways in which our clinical trials are conducted, which may result in unexpected costs, or to discontinue such clinical trials
altogether; |
| • |
delays in necessary interactions with regulators, ethics committees and other important agencies and
contractors due to limitations in employee resources or forced furlough of government or contractor personnel; and |
| • |
refusal of the FDA to accept data from clinical trials in affected geographies outside the United States.
|
The
COVID-19 outbreak continues to rapidly evolve, and its ultimate scope, duration and effects are unknown. The extent of the impact of the
disruptions to our business, including commercial sales and clinical development, as a result of the pandemic, will depend on future developments,
which are highly uncertain and cannot be predicted with confidence. The continuation of the COVID-19 pandemic could materially disrupt
our business and operations, hamper our ability to raise additional funds or sell our securities, continue to slow down the overall economy,
curtail consumer spending, interrupt our sources of supply, and make it hard to adequately staff our operations.
If
in the future we acquire or in-license technologies or additional product candidates, we may incur various costs, may have integration
difficulties and may experience other risks that could harm our business and results of operations.
In
the future, we may acquire or in-license additional potential products and technologies. Any potential product or technology we in-license
or acquire will likely require additional development efforts prior to commercial sale, including extensive pre-clinical studies, clinical
trials, or both, and approval by the FDA or other applicable foreign regulatory authorities, if any. All potential products are prone
to risks of failure inherent in pharmaceutical product development, including the possibility that the potential product, or product developed
based on in-licensed technology, will not be shown to be sufficiently safe and effective for approval by regulatory authorities. If intellectual
property related to potential products or technologies we in-license or our own know-how is not adequate, we may not be able to commercialize
the affected potential products even after expending resources on their development. In addition, we may not be able to manufacture economically
or successfully commercialize any potential product that we develop based on acquired or in-licensed technology that is granted regulatory
approval, and such potential products may not gain wide acceptance or be competitive in the marketplace. Moreover, integrating any newly
acquired or in-licensed potential products could be expensive and time-consuming. If we cannot effectively manage these aspects of our
business strategy, our business may not succeed.
25
The
time necessary to develop generic API or generic drug products may adversely affect whether, and the extent to which, we receive a return
on our capital.
The
development process, including drug formulation where applicable, testing, and FDA review and approval for generic drug products often
takes many years. This process requires that we expend considerable capital to pursue activities that do not yield an immediate or near-term
return. Also, because of the significant time necessary to develop a generic product, the actual market for a generic product at the time
it is available for sale may be significantly less than the originally projected market for the generic product. If this were to occur,
our potential return on our investment in developing the generic product, if approved for marketing by the FDA, would be adversely affected
and we may never receive a return on our investment in the generic product. It is also possible for the manufacturer of the brand-name
product for which we are developing a generic drug to obtain approvals from the FDA to switch the brand-name drug from the prescription
market to the over-the-counter, or OTC market. If this were to occur, we would be prohibited from marketing our generic product other
than as an OTC drug, in which case our revenues could be significantly impacted.
Risks
Related to Regulatory Matters
Healthcare
reform in the United States may harm our future business.
Healthcare
costs in the United States have risen significantly over the past decade. In March 2010, the Patient Protection and Affordable Care
Act, as amended by the Health Care and Education Reconciliation Act, collectively referred to as the ACA, was signed into law, which,
among other things, required most individuals to have health insurance, established new regulations on health plans, created insurance
exchanges and imposed new requirements and changes in reimbursement or funding for healthcare providers, device manufacturers and pharmaceutical
companies. The ACA also included a number of changes which may impact our product candidates:
| • |
revisions to the Medicaid rebate program by: (a) increasing the rebate percentage for branded drugs to
23.1% of the average manufacturer price, or AMP, with limited exceptions, (b) increasing the rebate for outpatient generic, multiple source
drugs dispensed to 13% of AMP; (c) changing the definition of AMP; and (d) extending the Medicaid rebate program to Medicaid managed care
plans, with limited exceptions; |
| • |
the imposition of annual fees upon manufacturers or importers of branded prescription drugs, which fees
will be in amounts determined by the Secretary of Treasury based upon market share and other data; |
| • |
providing a discount on brand-name prescriptions filled in the Medicare Part D coverage gap as a condition
for the manufacturers’ outpatient drugs to be covered under Medicare Part D; |
| • |
imposing increased penalties for the violation of fraud and abuse laws and funding for anti-fraud activities;
and |
| • |
expanding the definition of “covered entities” that purchase certain outpatient drugs
in the 340B Drug Pricing Program of Section 340B of the Public Health Service Act. |
Since
its enactment, there have been judicial, executive and Congressional challenges to certain aspects of the ACA. On June 17, 2021, the U.S.
Supreme Court dismissed the most recent judicial challenge to the ACA brought by several states without specifically ruling on the constitutionality
of the ACA. Prior to the U.S. Supreme Court’s decision, President Biden issued an executive order initiating a special enrollment
period from February 15, 2021 through August 15, 2021 for purposes of obtaining health insurance coverage through the ACA marketplace.
The executive order also instructed certain governmental agencies to review and reconsider their existing policies and rules that limit
access to healthcare. It is unclear how other healthcare reform measures enacted by Congress or implemented by the Biden administration,
if any, will impact our business.
26
Moreover,
other legislative changes have been proposed and adopted since the ACA was enacted. For example, the Budget Control Act of 2011 resulted
in aggregate reductions to Medicare payments to providers of 2% per fiscal year, which went into effect on April 1, 2013, and will
remain in effect through 2030, with the exception of a temporary suspension from May 1, 2020 through March 31, 2022 and a 1% reduction
from April 1, 2022 through June 30, 2022, unless additional Congressional action is taken. On January 2, 2013, the American Taxpayer
Relief Act of 2012 was signed into law, which, among other things, further reduced Medicare payments to several providers, including hospitals,
imaging centers and cancer treatment centers and increased the statute of limitations period for the government to recover overpayments
to providers from three to five years. More recently, on March 11, 2021, the American Rescue Plan Act of 2021 was signed into law,
which eliminates the statutory Medicaid drug rebate cap, currently set at 100% of a drug’s average manufacturer price, beginning
January 1, 2024.
The
cost of prescription pharmaceuticals in the United States has also been the subject of considerable discussion. There have been several
Congressional inquiries, as well as proposed and enacted legislation designed, among other things, to bring more transparency to product
pricing, review the relationship between pricing and manufacturer patient programs and reform government program reimbursement methodologies
for pharmaceutical products. For example, the Build Back Better Act, if enacted, would introduce substantial drug pricing reforms, including
the establishment of a drug price negotiation program within the U.S. Department of Health and Human Services that would require manufacturers
to charge a negotiated “maximum fair price” for certain selected drugs or pay an excise tax for noncompliance, and the establishment
of rebate payment requirements on manufacturers under Medicare Parts B and D. If the Build Back Better Act is not enacted, similar or
other drug pricing proposals could appear in future legislation. Individual states in the United States have also become increasingly
active in passing legislation and implementing regulations designed to control pharmaceutical product pricing, including price or patient
reimbursement constraints, discounts, restrictions on certain product access and marketing cost disclosure and transparency measures,
and, in some cases, designed to encourage importation from other countries and bulk purchasing. We expect that additional state and federal
healthcare reform measures will be adopted in the future, any of which could limit the amounts that federal and state governments will
pay for healthcare products and services, which could result in reduced demand for Twyneo®, Epsolay® and, our other product
candidates, or additional pricing pressure.
Risks
Related to Commercialization of Our Product Candidates
Our
continued growth is dependent on our ability to successfully develop and commercialize new product candidates in a timely manner.
Our
financial results depend upon our ability to introduce and commercialize additional product candidates in a timely manner. Generally,
revenue from new products is highest immediately following launch and then declines over time, as new competitors enter the market. Furthermore,
the greatest revenue is generally experienced by the company that is able to bring its product to the market first. Our growth is therefore
dependent upon our and our partners' ability to successfully introduce and commercialize new product candidates.
The
FDA and other regulatory authorities may not approve our product applications at all or in a timely fashion for our product candidates
under development. Additionally, we or our partners may not successfully complete our development efforts for other reasons, such as poor
results in clinical trials or a lack of funding to complete the required trials. Even if the FDA approves our product candidates, we or
our partners may not be able to market them successfully or profitably. Our future results of operations will depend significantly upon
our or our partners' ability to timely develop, receive FDA approval for, and market new pharmaceutical product candidates or otherwise
develop new product candidates or acquire the rights to other products.
27
Twyneo®
and if approved by the FDA, Epsolay and our other product candidates, will face significant competition and our failure to compete
effectively may prevent us from achieving significant market penetration and expansion.
The
facial aesthetic market in general, and the market for acne and rosacea treatments in particular, are highly competitive and dynamic,
and characterized by rapid and substantial technological development and product innovations. These markets are also characterized by
competitors obtaining patents to protect what they consider to be their intellectual property. We
anticipate that Twyneo® and, if approved by the FDA, Epsolay®, will face significant competition from other approved products,
including topical drugs, topical anti-acne drugs such as Acanya, Ziana, Epiduo, Epiduo Forte, Benzaclin, Aczone, Onexton, Differin, Arazlo,
Aklief and Amzeeq, Winlevi and topical drugs for the treatment of rosacea such as Metrogel, Finacea, Soolantraand Zilxi, oral drugs such
as Solodyn, Doryx, Dynacin, Oracea and Minocin. Twyneo® and, if approved by the FDA, Epsolay® may also compete with non-prescription
anti-acne products, as well as unapproved and off-label treatments. In addition, Twyneo® may compete with drug products utilizing
other technologies that can separate two drug substances, such as dual chamber tubes, dual pouches or dual sachets. To compete successfully
in the facial aesthetic market, we will have to demonstrate that our product is safe and effective for the respective treatment and has
advantages over existing therapies. Competing in the facial aesthetic market could result in price-cutting, reduced profit margins and
loss of market share, any of which would harm our business, financial condition and results of operations.
Due
to less stringent regulatory requirements in certain jurisdictions outside the United States, there are many more acne products and procedures
available for use in those international markets than are approved for use in the United States. There are also fewer limitations on the
claims that our competitors in international markets can make about the effectiveness of their products and the manner in which they can
market them. As a result, we may face more competition in markets outside of the United States.
In
addition, we may not be able to price Twyneo®, and if approved Epsolay®, and our other investigational product candidates, competitively
with the current standards of care or other competing products for their respective indications or their price may drop considerably due
to factors outside our control. If this happens or the price of materials and the cost to manufacture our product candidates increases
dramatically, our ability to continue to operate our business would be materially harmed and we may be unable to commercialize our investigational
product candidates successfully.
We
believe that our principal competitors are Bausch Health Companies, Inc., Galderma S.A. (other than with respect to Twyneo® and Epsolay®,
Almirall, LLC, LEO Pharma A/S, VYNE Therapeutics Inc. (formerly Menlo Therapeutics Inc.), Dermavant Sciences and Mylan N.V. .These
competitors are large and experienced companies that enjoy significant competitive advantages over us, such as greater financial, research
and development, manufacturing, personnel and marketing resources, greater brand recognition, and more experience and expertise in obtaining
marketing approvals from the FDA and foreign regulatory authorities.
With
respect to generic pharmaceutical products, the FDA approval process often results in the FDA granting final approval to a number of ANDAs
for a given product at the time a relevant patent for a corresponding branded product or other regulatory and/or market exclusivity expires.
As competition from other manufacturers intensifies, selling prices and gross profit margins often decline. Accordingly, the level of
market share, revenue and gross profit attributable to a particular generic product that we develop is generally related to the number
of competitors in that product’s market and the timing of that product’s regulatory approval and launch, in relation to competing
approvals and launches. Additionally, ANDA approvals often continue to be granted for a given product subsequent to the initial launch
of the first generic product. These circumstances generally result in significantly lower prices and reduced margins for generic products
compared to brand products. New generic market entrants generally cause continued price and margin erosion over the generic product life
cycle.
In
addition to the competition we face from other generic manufacturers, we face competition from brand-name manufacturers related to our
505(b)(2) and generic product candidates. Branded pharmaceutical companies may sell their branded products as “authorized generics,”
where an approved brand name drug is marketed, either by the brand name drug company or by another company with the brand company’s
permission, as a generic product without the brand name on its label, and potentially sold at a lower price than the brand name drug.
Further, branded pharmaceutical companies may seek to delay FDA approval of our 505(b)(2) applications and ANDAs or reduce competition
by, for example, obtaining new patents on drugs whose original patent protection is about to expire, filing patent infringement suits
that could delay FDA approval of 505(b)(2) and generic products, developing new versions of their products to obtain FDA market exclusivity,
filing citizen petitions contesting FDA approvals of 505(b)(2) and generic products such as on alleged health and safety grounds, developing
“next generation” versions of products that reduce demand for the 505(b)(2) and generic versions we are developing, changing
product claims and labeling, and seeking approval to market as OTC branded products.
28
Moreover,
competitors may, upon the approval of an NDA, or an NDA supplement, obtain a three-year period of exclusivity for a particular condition
of approval, or change to a marketed product, such as a new formulation for a previously approved product, if one or more new clinical
trials (other than bioavailability or bioequivalence studies) was essential to the approval of the application and was conducted/sponsored
by the applicant. Such exclusivity may prevent the FDA from approving one or more of our product candidates that are being developed,
and for which we would seek the FDA’s approval under the 505(b)(2) regulatory pathway, if we were to seek approval for the same
conditions of approval as that protected by the period of exclusivity. Recent litigation against the FDA has affirmed the FDA’s
interpretation of the scope of exclusivity as preventing the approval of a 505(b)(2) NDA for the same change to a previously approved
drug, regardless of whether or not the 505(b)(2) applicant relies on the competitor’s product as a listed drug in its 505(b)(2)
application. Exclusivity determinations are highly fact-dependent and are made by the FDA on a case-by-case basis at the end of the review
period for a 505(b)(2) NDA. As such, we may not know until very late in the FDA’s review of our 505(b)(2) product candidates whether
or not approval may be delayed because of a competitor’s period of exclusivity.
Other
pharmaceutical companies may develop competing products for acne, rosacea and other indications we are pursuing and enter the market ahead
of us.
Other
pharmaceutical companies are engaged in developing, patenting, manufacturing and marketing healthcare products that compete with those
that we are developing. These potential competitors include large and experienced companies that enjoy significant competitive advantages
over us, such as greater financial, research and development, manufacturing, personnel and marketing resources, greater brand recognition
and more experience and expertise in obtaining marketing approvals from the FDA and foreign regulatory authorities.
Several
of these potential competitors are privately-owned companies that are not bound by public disclosure requirements and closely guard their
development plans, marketing strategies and other trade secrets. Publicly-traded pharmaceutical companies are also able to maintain a
certain degree of confidentiality over their pipeline developments and other sensitive information. As a result, we do not know whether
these potential competitors are already developing, or plan to develop other topical treatments for acne, rosacea or other indications
we are pursuing, and we will likely be unable to ascertain whether such activities are underway in the future. These potential competitors
may therefore introduce competing products without our prior knowledge and without our ability to take preemptive measures in anticipation
of their commercial launch.
Furthermore,
such potential competitors may enter the market before us, and their products may be designed to circumvent our granted patents and pending
patent applications. They may also challenge, narrow or invalidate our granted patents or our patent applications, and such patents and
patent applications may fail to provide adequate protection for our product candidates.
Third-party
payor coverage and adequate reimbursement may not be available for Twyneo® or, if approved, Epsolay®, and our other investigational
product candidates, which could make it difficult for us or our partners to sell them profitably.
Sales
of Twyneo®, Epsolay®, or our other product candidates, will depend, in part, on the extent to which the costs of our product
candidates will be covered by third-party payors, such as government health programs, private health insurers and managed care organizations.
Third-party payors generally decide which drugs they will cover and establish certain reimbursement levels for such drugs. In particular,
in the United States, private health insurers and other third-party payors often provide reimbursement for products and services based
on the level at which the government (through the Medicare or Medicaid programs) provides reimbursement for such treatments. Patients
who are prescribed treatments for their conditions and providers performing the prescribed services generally rely on third-party payors
to reimburse all or part of the associated healthcare costs. Patients are unlikely to use our product candidates unless coverage is provided
and reimbursement is adequate to cover a significant portion of the cost of our product candidates. Sales of Twyneo®, Epsolay®
and our other product candidates, will therefore depend substantially on the extent to which the costs of Twyneo®, Epsolay®
and our other product candidates will be paid by third-party payors. Additionally, the market for Twyneo®, Epsolay® and our
other product candidates will depend significantly on access to third-party payors’ formularies without prior authorization, step
therapy, or other limitations such as approved lists of treatments for which third-party payors provide coverage and reimbursement. Additionally,
coverage and reimbursement for therapeutic products can differ significantly from payor to payor. One third-party payor’s decision
to cover a particular medical product or service does not ensure that other payors will also provide coverage for the medical product
or service, or will provide coverage at an adequate reimbursement rate. As a result, the coverage determination process will require us
to provide scientific and clinical support for the use of our product candidates to each payor separately and will be a time-consuming
process.
29
Third-party
payors are developing increasingly sophisticated methods of controlling healthcare costs and increasingly challenging the prices charged
for medical products and services. Additionally, the containment of healthcare costs has become a priority of federal and state governments
and the prices of drugs have been a focus in this effort. The United States government, state legislatures and foreign governments have
shown significant interest in implementing cost-containment programs, including price controls and transparency requirements, restrictions
on reimbursement and requirements for substitution of generic products. Adoption of price controls and cost-containment measures, and
adoption of more restrictive policies in jurisdictions with existing controls and measures, could limit our revenue and operating results.
If these third-party payors do not consider Twyneo®, Epsolay® and our other product candidates to be cost-effective compared
to other therapies, they may not cover Twyneo®, Epsolay® and our other product candidates once approved as a benefit under their
plans or, if they do, the level of reimbursement may not be sufficient to allow us or our partners to sell our product candidates on a
profitable basis. Decreases in third-party reimbursement for Twyneo®, Epsolay® and our other product candidates once approved
or a decision by a third-party payor to not cover Twyneo®, Epsolay® and our other product candidates could reduce or eliminate
utilization of Twyneo®, Epsolay® and our other product candidates and have an adverse effect on our sales, results of operations
and financial condition. In addition, state and federal healthcare reform measures have been and may be adopted in the future, any of
which could limit the amounts that federal and state governments will pay for healthcare products and services, which could result in
reduced demand for Twyneo®, Epsolay® and our other product candidates once approved or additional pricing pressures.
Outside
the United States, sales of any approved products are generally subject to extensive governmental price controls and other market regulations,
and we believe the increasing emphasis on cost-containment initiatives in Europe and other countries has and will continue to put pressure
on the pricing and usage of our products, if any. In many countries, the prices of medical products are subject to varying price control
mechanisms as part of national health systems. Other countries allow companies to fix their own prices for medical products but monitor
and control company profits. Additional foreign price controls or other changes in pricing regulation could restrict the amount that we
are able to charge for our products. Accordingly, in markets outside the United States, the reimbursement for our products may be reduced
compared with the United States and may be insufficient to generate commercially reasonable revenue and profits.
30
Our
current and future relationships with investigators, health care professionals, consultants, third-party payors, and customers are subject
to applicable healthcare regulatory laws, which could expose us to penalties.
Our
business operations and current and future arrangements with investigators, healthcare professionals, consultants, third-party payors
and customers, may expose us to broadly applicable fraud and abuse and other healthcare laws and regulations. These laws may constrain
the business or financial arrangements and relationships through which we and our commercial partners operate, including how we or our
partners research, market, sell and distribute our product candidates for which we or our partners obtain marketing approval. Such laws
include:
| • |
the federal Anti-Kickback Statute prohibits, among other things, persons and entities from knowingly
and willfully soliciting, offering, receiving or providing remuneration, directly or indirectly, in cash or in kind, to induce or reward,
or in return for, either the referral of an individual for, or the purchase, lease, order or recommendation of, any good, facility, item
or service, for which payment may be made, in whole or in part, under a federal healthcare program such as Medicare and Medicaid. A person
or entity does not need to have actual knowledge of the federal Anti-Kickback Statute or specific intent to violate it in order to have
committed a violation; |
| • |
the federal false claims laws, including the civil False Claims Act, impose criminal and civil penalties,
including through civil whistleblower or qui tam actions, against individuals or entities for knowingly presenting, or causing to be presented,
to the federal government, claims for payment that are false or fraudulent, knowingly making, using or causing to be made or used, a false
record or statement material to a false or fraudulent claim, or knowingly making a false statement to avoid, decrease or conceal an obligation
to pay money to the federal government. In addition, the government may assert that a claim including items and services resulting from
a violation of the federal Anti-Kickback Statute constitutes a false or fraudulent claim for purposes of the civil False Claims Act;
|
| • |
the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, imposes criminal and
civil liability for, among other things, knowingly and willfully executing, or attempting to execute, a scheme to defraud any healthcare
benefit program or making false or fraudulent statements relating to healthcare matters. Similar to the federal Anti-Kickback Statute,
a person or entity does not need to have actual knowledge of the statute or specific intent to violate it in order to have committed a
violation; |
| • |
the federal Physician Payment Sunshine Act, which requires certain manufacturers of drugs, devices, biologics
and medical supplies for which payment is available under Medicare, Medicaid or the Children’s Health Insurance Program (with certain
exceptions) to report annually to the government information related to certain payments or other “transfers of value” made
to physicians (defined to include doctors, dentists, optometrists, podiatrists and chiropractors), certain non-physician practitioners
(nurse practitioners, certified nurse anesthetists, physician assistants, clinical nurse specialists, anesthesiology assistants and
certified nurse midwives), and teaching hospitals, and requires applicable manufacturers and group purchasing organizations to report
annually to the government ownership and investment interests held by the physicians described above and their immediate family members
and payments or other “transfers of value” to such physician owners. Covered manufacturers are required to submit reports
to the government by the 90th day of each calendar year;
|
| • |
federal consumer protection and unfair competition laws, which broadly regulate marketplace activities
and activities that potentially harm consumers; |
| • |
analogous state laws and regulations, such as state anti-kickback and false claims laws, may apply to
our business practices, including but not limited to, research, distribution, sales and marketing arrangements and claims involving healthcare
items or services reimbursed by non-governmental third-party payors, including private insurers; state laws that require pharmaceutical
companies to comply with the pharmaceutical industry’s voluntary compliance guidelines and the relevant compliance guidance promulgated
by the federal government, or otherwise restrict payments that may be made to healthcare providers and other potential referral sources;
and state laws that require drug manufacturers to report information related to payments and other transfers of value to physicians and
other healthcare providers or that require the reporting of pricing information and marketing expenditures. |
31
Efforts
to ensure that our current and future business arrangements with third parties will comply with applicable healthcare laws and regulations
will involve substantial costs. It is possible that governmental authorities will conclude that our business practices do not comply with
current or future statutes, regulations, agency guidance or case law involving applicable healthcare laws. If our operations are found
to be in violation of any of these or any other health regulatory laws that may apply to us, we may be subject to significant penalties,
including the imposition of significant civil, criminal and administrative penalties, damages, monetary fines, disgorgement, individual
imprisonment, possible exclusion from participation in Medicare, Medicaid and other federal healthcare programs or similar programs in
other countries or jurisdictions, integrity oversight and reporting obligations to resolve allegations of non-compliance, contractual
damages, reputational harm, diminished profits and future earnings, and curtailment or restructuring of our operations, any of which could
adversely affect our ability to operate our business and our results of operations. Defending against any such actions can be costly,
time-consuming and may require significant financial and personnel resources. Therefore, even if we are successful in defending against
any such actions that may be brought against us, our business may be impaired.
Actual
or perceived failures to comply with applicable data protection, privacy and security laws, regulations, standards and other requirements
could adversely affect our business, results of operations, and financial condition.
The
global data protection landscape is rapidly evolving, and we are or may become subject to numerous state, federal and foreign laws, requirements
and regulations governing the collection, use, disclosure, retention, and security of personal information, such as information that we
may collect in connection with clinical trials. Any failure or perceived failure by us to comply with federal, state or foreign laws or
regulations, our internal policies and procedures or our contracts governing our processing of personal information could result in negative
publicity, government investigations and enforcement actions, claims by third parties and damage to our reputation, any of which could
have a material adverse effect on our business, results of operation, and financial condition.
In
the U.S., HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act, and regulations implemented thereunder,
or collectively, HIPAA imposes obligations, including mandatory contractual terms, with respect to safeguarding the privacy, security
and transmission of individually identifiable health information. Most healthcare providers, including research institutions from which
we obtain patient health information, are subject to privacy and security regulations promulgated under HIPAA. While we do not believe
that we are currently acting as a covered entity or business associate under HIPAA and thus are not directly regulated under HIPAA, depending
on the facts and circumstances, we could face substantial criminal penalties if we knowingly receive individually identifiable health
information from a HIPAA-covered healthcare provider or research institution that has not satisfied HIPAA’s requirements for disclosure
of individually identifiable health information.
Certain
states have also adopted comparable privacy and security laws and regulations, which govern the privacy, processing and protection of
health-related and other personal information. Such laws and regulations will be subject to interpretation by various courts and other
governmental authorities, thus creating potentially complex compliance issues for us and our future customers and strategic partners.
For example, the California Consumer Privacy Act, or the CCPA, which went into effect on January 1, 2020, gives California residents expanded
rights to access and delete their personal information, opt out of certain personal information sharing, and receive detailed information
about how their personal information is used. The CCPA provides for civil penalties for violations, as well as a private right of action
for data breaches that is expected to increase data breach litigation. Further, the California Privacy Rights Act, or CPRA, recently passed
in California. The CPRA significantly amends the CCPA and will impose additional data protection obligations on covered businesses, including
additional consumer rights processes, limitations on data uses, new audit requirements for higher risk data, and opt outs for certain
uses of sensitive data. It will also create a new California data protection agency authorized to issue substantive regulations and could
result in increased privacy and information security enforcement. The majority of the provisions will go into effect on January 1, 2023,
and additional compliance investment and potential business process changes may be required. Similar laws have passed in Virginia and
Colorado, and have been proposed in other states and at the federal level, reflecting a trend toward more stringent privacy legislation
in the United States.
32
We
are also or may become subject to rapidly evolving data protection laws, rules and regulations in foreign jurisdictions. For example,
the General Data Protection Regulation, or GDPR, went into effect in May 2018 and imposes obligations and restrictions on the collection
and use of personal data relating to individuals located in the European Economic Area, or EEA. Companies that must comply with
the GDPR face increased compliance obligations and risk, including more robust regulatory enforcement of data protection requirements
and potential fines for noncompliance of up to €20 million or 4% of the annual global revenues of the noncompliant company, whichever
is greater. Further, the GDPR imposes strict rules on the transfer of personal data out of the European Union to the United States and
other regions that have not been deemed to offer “adequate” privacy protection; in July 2020, the Court of Justice of the
European Union, or CJEU, limited how organizations could lawfully transfer personal data from the European Union / EEA to the U.S. by
invalidating the Privacy Shield for purposes of international transfers and imposing further restrictions on the use of standard contractual
clauses, or SCCs. The European Commission issued revised SCCs on June 4, 2021 to account for the decision of the CJEU and recommendations
made by the European Data Protection Board. The revised SCCs must be used for relevant new data transfers from September 27, 2021; existing
standard contractual clauses arrangements must be migrated to the revised clauses by December 27, 2022. The new SCCs apply only to the
transfer of personal data outside of the EEA and not the United Kingdom; the United Kingdom’s Information Commissioner’s Office
launched a public consultation on its draft revised data transfers mechanisms in August 2021 and laid its proposal before Parliament,
with the United Kingdom SCCs expected to come into force in March 2022, with a two-year grace period. There is some uncertainty around
whether the revised clauses can be used for all types of data transfers, particularly whether they can be relied on for data transfers
to non-EEA entities subject to the GDPR. As supervisory authorities issue further guidance on personal data export mechanisms, including
circumstances where the SCCs cannot be used, and/or start taking enforcement action, we could suffer additional costs, complaints and/or
regulatory investigations or fines, and/or if we are otherwise unable to transfer personal data between and among countries and regions
in which we operate, it could affect the manner in which we provide our services, the geographical location or segregation of our relevant
systems and operations, and could adversely affect our financial results.
Additionally,
following the United Kingdom’s withdrawal from the European Union, we will have to comply with the GDPR and the United Kingdom GDPR,
each regime having the ability to fine up to the greater of €20 million / £17.5 million or 4% of global turnover. The relationship
between the United Kingdom and the European Union in relation to certain aspects of data protection law remains unclear, for example around
how data can lawfully be transferred between each jurisdiction, which exposes us to further compliance risk.
Although
we work to comply with applicable laws, regulations and standards, our contractual obligations and other legal obligations, these requirements
are evolving and may be modified, interpreted and applied in an inconsistent manner from one jurisdiction to another, and may conflict
with one another or other legal obligations with which we must comply. Any failure or perceived failure by us or our employees, representatives,
contractors, consultants, collaborators, or other third parties to comply with such requirements or adequately address privacy and security
concerns, even if unfounded, could result in additional cost and liability to us, damage our reputation, and adversely affect our business
and results of operations.
The
illegal distribution and sale by third parties of counterfeit versions of Twyneo®, Epsolay® or our other product candidates
or of stolen products could have a negative impact on our reputation and a material adverse effect on our business, results of operations
and financial condition.
Third
parties could illegally distribute and sell counterfeit versions of Twyneo®, Epsolay® or our
other product candidates, which do not meet the rigorous manufacturing
and testing standards that our product candidates undergo. Counterfeit products are frequently unsafe or ineffective and can be life-threatening.
Counterfeit medicines may contain harmful substances, the wrong dose of the active pharmaceutical ingredient or no active pharmaceutical
ingredient at all. However, to distributors and users, counterfeit products may be visually indistinguishable from the authentic version.
Reports
of adverse reactions to counterfeit drugs similar to Twyneo®, Epsolay® or our
other product candidates or increased levels of counterfeiting such products
could materially affect physician and patient confidence in Twyneo®, Epsolay® or our other authentic product candidates. It
is possible that adverse events caused by unsafe counterfeit products will mistakenly be attributed to Twyneo®, Epsolay® or
our other authentic product candidates. In addition, thefts of our inventory at warehouses, plant or while in-transit, which are not properly
stored and which are sold through unauthorized channels could adversely impact patient safety, our reputation and our business.
Public
loss of confidence in the integrity of Twyneo®, Epsolay® or our other product candidates as a result of counterfeiting or theft
could have a material adverse effect on our business, financial position and results of operations.
33
Risks
Related to Dependence on Third Parties
We
rely on Galderma to commercialize Twyneo® and, if approved, Epsolay® in the U.S. and on Padagis to develop and commercialize
our generic product candidates and may depend on others parties for commercialization of Twyneo® and Epsolay® outside of the
U.S, and the development and commercialization of our other investigational product candidates. Any
collaborative arrangements that we have or may establish in the future may not be successful or we may otherwise not realize the anticipated
benefits from these collaborations. We do not control third parties with whom we have or may have collaborative arrangements, and we will
rely on them to achieve results which may be significant to us. In addition, any current or future collaborative arrangements may place
the development and commercialization of our product candidates outside our control, may require us to relinquish important rights or
may otherwise be on terms unfavorable to us.
In
June 2021, we entered into two five-year exclusive license agreements with Galderma pursuant to which Galderma has the exclusive
right to, and is responsible for, all U.S. commercial activities for Twyneo®, and, if approved by the FDA, Epsolay®. In
consideration for the grant of such rights, we are entitled to of up to $11 million in upfront payments to us and regulatory approval
milestone payments. We are also eligible to receive tiered double-digit royalties ranging from mid-teen to high-teen percentage of net
sales as well as up to $9 million in sales milestone payments. We cannot provide any assurance with respect to the success of the
license agreements with Galderma, and we may never receive any milestone or royalty payments pursuant to these agreements. Following the
expiration of the initial term of our agreement with Galderma, if the agreement is not renewed all rights related to the Twyneo®
and Epsolay® products will revert to us. We will be required upon such expiration to either establish our own marketing and commercialization
infrastructure or collaborate with a new partner, and may not be able to do so.
We
are currently a party to collaborative arrangements with respect to the development, manufacture, study and commercialization of certain
of our product candidates with Padagis (formerly a division of Perrigo Company plc, or Perrigo Plc), by assignment from Perrigo Plc.
We
cannot and will not control these third party collaborators, but we rely on them to achieve results, which may be significant to us. Relying
upon collaborative arrangements to develop and commercialize Twyneo® Epsolay® and our other product candidates subjects us to
a number of risks, including:
| • |
we may not be able to control the amount and timing of resources that our collaborators may devote to
Twyneo® Epsolay® and our other product candidates; |
| • |
We may not be able to locate third party partners for the commercialization of Twyneo® and Epsolay®
for territories other than U.S.; |
| • |
should a collaborator fail to comply with applicable laws, rules, or regulations when performing services
for us, we could be held liable for such violations; |
| • |
our current or future collaborators may fail to comply with local or any foreign health authorities’
laws and regulations, and as a result, the receipt of a site manufacturing, export or import license may be delayed or withheld for an
undefined period; |
34
| • |
our current or future collaborators may experience financial difficulties or changes in business focus;
|
| • |
our current or future collaborators’ partners may fail to secure adequate commercial supplies of
our product candidates upon marketing approval, if at all; |
| • |
our current or future collaborators’ partners may have a shortage of qualified personnel;
|
| • |
we may be required to relinquish important rights, such as marketing and distribution rights; |
| • |
business combinations or significant changes in a collaborator’s business strategy may adversely
affect a collaborator’s willingness or ability to complete its obligations under any arrangement; |
| • |
under certain circumstances, a collaborator could move forward with a competing product developed either
independently or in collaboration with others, including our competitors; |
| • |
our current or future collaborators may utilize our proprietary information in a way that could expose
us to competitive harm; and |
| • |
collaborative arrangements are often terminated or allowed to expire, which could delay the development
and may increase the cost of developing our product candidates. |
In
addition, if disputes arise between us and our collaborators, it could result in the delay or termination of the development, manufacturing
or commercialization of Twyneo®, Epsolay and our other product candidates, lead to protracted and costly legal proceedings, or cause
collaborators to act in their own interest, which may not be in our interest. As a result, there can be no assurance that the collaborative
arrangements that we have entered into, or may enter into in the future, will achieve their intended goals.
If
any of these scenarios materialize, they could have an adverse effect on our business, financial condition or results of operations.
We
also may have other investigational product candidates where it is desirable or essential to enter into agreements with a collaborator
who has greater financial resources or different expertise than us, but for which we are unable to find an appropriate collaborator or
are unable to do so on favorable terms. If we fail to enter into such collaborative agreements on favorable terms, it could materially
delay or impair our ability to develop and commercialize our investigational product candidates and increase the costs of development
and commercialization of such investigational product candidates.
We
currently contract with third-party manufacturers and suppliers for certain compounds and components necessary to produce the commercial
scale production of Twyneo®,
Epsolay®, and our other investigational product candidates for clinical trials. This increases the risk that we may not have access
to sufficient quantities or such quantities at an acceptable cost, which could delay, prevent or impair our development or commercialization
efforts.
We
and our partners currently rely on third parties for the manufacture and supply of certain compounds and components necessary to produce
the commercial scale production of Twyneo® and our product candidates
for our clinical trials, including active ingredients and excipients used in the formulation of our various product candidates, as well
as primary and secondary packaging and labeling materials. We and our partners lack the resources and the capability to manufacture Twyneo
®, Epsolay ® any of our other investigational product candidates on a clinical or commercial scale, and we expect that we and
our partners will continue to rely on third parties to support our commercial requirements if any of our product candidates is approved
for marketing by the FDA or other foreign regulatory authorities.
35
The
facilities used by our contract manufacturers to manufacture Twyneo®, Epsolay ® and our other product candidates must
be approved by the FDA pursuant to inspections that will be conducted after we or our partners submit our marketing applications to the
FDA. We do not control the manufacturing process of, and are completely dependent on, our contract manufacturing partners for compliance
with the regulatory requirements, known as current good manufacturing practices, or cGMPs, for manufacture of both active drug substances
and finished drug products. If our contract manufacturers cannot successfully manufacture material that conforms to our specifications
and the strict regulatory requirements of the FDA or others, they will not be able to secure and/or maintain regulatory approval for their
manufacturing facilities. In addition, we have no control over the ability of our contract manufacturers to maintain adequate quality
control, quality assurance and qualified personnel. If the FDA or a comparable foreign regulatory authority does not approve these facilities
for the manufacture of our product candidates or if it withdraws any such approval in the future, we or our partners may need to find
alternative manufacturing facilities, which would significantly impact our or our partners ability to develop, obtain regulatory approval
for or market Twyneo ®, Epsolay ® or our other product candidates.
Reliance
on third-party manufacturers and suppliers entails a number of risks, including reliance on the third party for regulatory compliance
and quality assurance, the possible breach of the manufacturing or supply agreement by the third party, the possibility that the supply
is inadequate or delayed, the risk that the third party may enter the field and seek to compete and may no longer be willing to continue
supplying, and the possible termination or nonrenewal of the agreement by the third party at a time that is costly or inconvenient for
us. If any of these risks transpire, we may be unable to timely retain an alternate manufacturer or suppliers on acceptable terms and
with sufficient quality standards and production capacity, which may disrupt and delay our clinical trials or the manufacture and commercial
sale of Twyneo®, or if approved by the FDA, Epsolay®, and our other product candidates.
Our
failure or the failure of our third-party manufacturers and suppliers to comply with applicable regulations could result in sanctions
being imposed on us, including fines, injunctions, civil penalties, delays, suspension or withdrawal of approvals, license revocation,
seizures or recalls of products, operating restrictions and criminal prosecutions, any of which could significantly and adversely affect
supplies of our product candidates that we may develop. Any failure or refusal to supply or any interruption in supply of the components
for Twyneo®, Epsolay® or any of our other product candidates could delay, prevent or impair our clinical development or commercialization
efforts.
We
and our partners rely on third parties and consultants to assist us in conducting clinical trials. If these third parties or consultants
do not successfully carry out their contractual duties or meet expected deadlines, we or our partners may be unable to obtain regulatory
approval for or commercialize our product candidates and our business could be substantially harmed.
We
and our partners do not have the ability to independently perform all aspects of our anticipated pre-clinical studies and clinical trials.
We and our partners rely on medical institutions, clinical investigators, contract laboratories, collaborative partners and other third
parties to assist us in conducting our clinical trials and studies for our product candidates. The third parties with whom we and our
partners contract for execution of our clinical trials play a significant role in the conduct of these trials and the subsequent collection
and analysis of data. However, these third parties are not employees, and except for contractual duties and obligations, we and our partners
have limited ability to control the amount or timing of resources that they devote to our programs.
In
addition, the execution of pre-clinical studies and clinical trials, and the subsequent compilation and analysis of the data produced,
require coordination among these various third parties. In order for these functions to be carried out effectively and efficiently, it
is imperative that these parties communicate and coordinate with one another, which may prove difficult to achieve. Moreover, these third
parties may also have relationships with other commercial entities, some of which may compete with us. Our and our partners agreement
with these third parties may inevitably enable them to terminate such agreements upon reasonable prior written notice under certain circumstances.
36
Although
we and our partners rely on these third parties to conduct certain aspects of our clinical trials and other studies and clinical trials,
we remain responsible for ensuring that each of our and our partners studies is conducted in accordance with the applicable protocol,
legal, regulatory and scientific standards, and our and our partners reliance on these third parties does not relieve us or our partners
of our and our partners regulatory responsibilities. Moreover, the FDA and foreign regulatory authorities require us to comply with GCPs,
which are the regulations and standards for conducting, monitoring, recording and reporting the results of clinical trials to ensure that
the data and results are scientifically credible and accurate, and that the trial subjects are adequately informed of the potential risks
of participating in clinical trials. We and our partners also rely on our consultants to assist us in the execution, including data collection
and analysis of our and our partners clinical trials. If we or any of our and our partners third-party contractors fail to comply with
applicable GCPs, the clinical data generated in the clinical trials may be deemed unreliable and the FDA or comparable foreign regulatory
authorities may require us or our partners to perform additional clinical trials before approving our marketing applications. We cannot
assure you that upon inspection by a given regulatory authority, such regulatory authority will determine that any of our or our partners
clinical trials complies with GCP regulations. In addition, our and our partners clinical trials must be conducted with product produced
under cGMP regulations. Our or our partners failure to comply with these regulations may require us to repeat clinical trials, which would
delay the regulatory approval process.
If
the third parties or consultants that assist us and our partners in conducting our clinical trials do not perform their contractual duties
or obligations, experience work stoppages, do not meet expected deadlines, terminate their agreements with us or our partners, or
need to be replaced, or if the quality or accuracy of the clinical data they obtain is compromised due to the failure to adhere to our
clinical trial protocols, regulatory requirements or GCPs, or for any other reason, we or our partners may need to conduct additional
clinical trials or enter into new arrangements with alternative third parties, which could be difficult, costly or impossible, and our
or our partners clinical trials may be extended, delayed or terminated or may need to be repeated. If any of the foregoing were to occur,
we or our partners may not be able to obtain, or may be delayed in obtaining, regulatory approval for the product candidates being tested
in such trials, and will not be able to, or may be delayed in our or our partners efforts to, successfully commercialize these product
candidates.
The
manufacture of pharmaceutical products is complex, and manufacturers often encounter difficulties in production. If we or any of our third-party
manufacturers encounter any difficulties, our, or our partners ability to provide product candidates for clinical trials or our product
candidates to patients, once approved, and the development or commercialization of our product candidates could be delayed or stopped.
The
manufacture of pharmaceutical products is complex and requires significant expertise and capital investment, including the development
of advanced manufacturing techniques and process controls. We and our or our partners contract manufacturers must comply with cGMP requirements.
Manufacturers of pharmaceutical products often encounter difficulties in production, particularly in scaling up and validating initial
production and contamination controls. These problems include difficulties with production costs and yields, quality control, including
stability of the product, quality assurance testing, operator error, shortages of qualified personnel, as well as compliance with strictly
enforced federal, state and foreign regulations. Furthermore, if microbial, viral or other contaminations are discovered in our product
candidates or in the manufacturing facilities in which our product candidates are made, such manufacturing facilities may need to be closed
for an extended period of time to investigate and remedy the contamination.
We
cannot assure you that any stability or other issues relating to the manufacture of any of our product candidates will not occur in the
future. Additionally, we, our partners and our third-party manufacturers may experience manufacturing difficulties due to resource constraints
or as a result of labor disputes or unstable political environments. If we, our partners, or our third-party manufacturers were to encounter
any of these difficulties, our or our partners ability to provide any product candidates to patients in clinical trials and products to
patients, once approved, would be jeopardized. Any delay or interruption in the supply of clinical trial supplies could delay the initiation
or completion of clinical trials, increase the costs associated with maintaining clinical trial programs and, depending upon the period
of delay, require us or our partners to commence new clinical trials at additional expense or terminate clinical trials completely. Any
adverse developments affecting clinical or commercial manufacturing of our product candidates may result in shipment delays, inventory
shortages, lot failures, product withdrawals or recalls, or other interruptions in the supply of our product candidates. We may also have
to take inventory write-offs and incur other charges and expenses for products that fail to meet specifications, undertake costly remediation
efforts or seek more costly manufacturing alternatives. Accordingly, failures or difficulties faced at any level of our supply chain could
materially adversely affect our business and delay or impede the development and commercialization of any of our product candidates and
could have a material adverse effect on our business, prospects, financial condition and results of operations.
37
Risks
Related to Our Intellectual Property
We
depend on our intellectual property, and our future success is dependent on our ability to protect our intellectual property and not infringe
on the rights of others.
Our
success depends, in part, on our ability to obtain patent protection for our product candidates, maintain the confidentiality of our trade
secrets and know how, operate without infringing on the proprietary rights of others and prevent others from infringing our proprietary
rights. We try to protect our proprietary position by, among other things, filing U.S., European, and other patent applications related
to our product candidates, inventions and improvements that may be important to the continuing development of our product candidates.
While we generally apply for patents in those countries where we intend to make, have made, use, or sell patented products, we may not
accurately predict all of the countries where patent protection will ultimately be desirable. If we fail to timely file a patent application
in any such country, we may be precluded from doing so at a later date. In addition, we cannot assure you that:
| • |
any of our future processes or product candidates will be patentable; |
| • |
our processes or product candidates will not infringe upon the patents of third parties; or |
| • |
we will have the resources to defend against charges of patent infringement or other violation or misappropriation
of intellectual property by third parties or to protect our own intellectual property rights against infringement, misappropriation or
violation by third parties. |
Because
the patent position of pharmaceutical companies involves complex legal and factual questions, we cannot predict the validity and enforceability
of patents with certainty. Changes in either the patent laws or in interpretations of patent laws may diminish the value of our intellectual
property. Accordingly, we cannot predict the breadth of claims that may be allowable or enforceable in our patents (including patents
owned by or licensed to us). Our issued patents may not provide us with any competitive advantages, may be held invalid or unenforceable
as a result of legal challenges by third parties or could be circumvented. Our competitors may also independently develop formulations,
processes and technologies or products similar to ours or design around or otherwise circumvent patents issued to, or licensed by, us.
Thus, any patents that we own or license from others may not provide any protection against competitors. Our pending patent applications,
those we may file in the future or those we may license from third parties may not result in patents being issued. If these patents are
issued, they may not be of sufficient scope to provide us with meaningful protection. The degree of future protection to be afforded by
our proprietary rights is uncertain because legal means afford relatively limited protection and may not adequately protect our rights
or permit us to gain or keep our competitive advantage.
Patent
rights are territorial; thus, the patent protection we do have will only extend to those countries in which we have issued patents. Even
so, the laws of certain countries do not protect our intellectual property rights to the same extent as do the laws of the United States
and the European Union. Therefore, we cannot assure you that the patents issued, if any, as a result of our foreign patent applications
will have the same scope of coverage as our U.S. patents. Competitors may successfully challenge our patents, produce similar drugs or
products that do not infringe our patents, or produce drugs in countries where we have not applied for patent protection or that do not
respect our patents. Furthermore, it is not possible to know the scope of claims that will be allowed in published applications and it
is also not possible to know which claims of granted patents, if any, will be deemed enforceable in a court of law.
38
After
the completion of development and registration of our patents, third parties may still act to manufacture and/or market products in infringement
of our patent protected rights, and we may not have adequate resources to enforce our patents. Any such manufacture and/or market of products
in infringement of our patent protected rights is likely to cause us damage and lead to a reduction in the prices of our product candidates,
thereby reducing our anticipated cash flows and profits, if any.
In
addition, due to the extensive time needed to develop, test and obtain regulatory approval for our product candidates, any patents that
protect our product candidates may expire early during commercialization. This may reduce or eliminate any market advantages that such
patents may give us. Following patent expiration, we may face increased competition through the entry of competing products into the market
and a subsequent decline in market share and profits.
We
have granted, and may in the future grant, to third parties licenses to use our intellectual property. Generally, other than the licenses
granted to Galderma, these licenses have granted rights to commercialize products outside the pharmaceutical field or to technology we
no longer use or to otherwise use our intellectual property for a limited purpose outside the scope of our business interests. For example,
in August 2013 we entered into an assignment agreement with Medicis Pharmaceutical Corporation (“Medicis”), according to which
Medicis assigned to us its entire interest in one of the patents upon which we rely for our product candidate Twyneo® for the treatment
of acne. As part of this assignment agreement, we granted to Medicis a non-exclusive, transferable, sub-licensable, royalty-free, perpetual,
license to practice the inventions claimed under the patent. In June 2021, we entered into two five-year exclusive license agreements with
Galderma, under our intellectual property rights covering the Twyneo® and Epsolay® products, pursuant to which Galderma has
the exclusive right to, and is responsible for, all U.S. commercial activities for Twyneo®, and, if approved by the FDA, Epsolay®
However,
our business interests may change or our licensees may disagree with the scope of our license grant. In such cases, such licensing arrangements
may result in the development, manufacturing, marketing and sale by our licensees of products substantially similar to our products, causing
us to face increased competition, which could reduce our market share and significantly harm our business, results of operations and prospects.
If
we are unable to protect the confidentiality of our trade secrets or know-how, such proprietary information may be used by others to compete
against us.
In
addition to filing patent applications, we generally try to protect our trade secrets, know-how, technology and other proprietary information
by entering into confidentiality or non-disclosure agreements with parties that have access to it, such as our development and/or commercialization
partners, employees, contractors and consultants. We also enter into agreements that purport to require the disclosure and assignment
to us of the rights to the ideas, developments, discoveries and inventions of our employees, advisors, research collaborators, contractors
and consultants while we employ or engage them. However, we cannot assure you that these agreements will provide meaningful protection
for our trade secrets, know-how or other proprietary information in the event of any unauthorized use, misappropriation or disclosure
of such trade secrets, know-how or other proprietary information because these agreements can be difficult and costly to enforce or may
not provide adequate remedies. Any of these parties may breach the confidentiality agreements and willfully or unintentionally disclose
our confidential information, or our competitors might learn of the information in some other way. The disclosure to, or independent development
by, a competitor of any trade secret, know-how or other technology not protected by a patent could materially adversely affect any competitive
advantage we may have over any such competitor.
To
the extent that any of our employees, advisors, research collaborators, contractors or consultants independently develop, or use independently
developed, intellectual property in connection with any of our projects, disputes may arise as to the proprietary rights to this type
of information. If a dispute arises with respect to any proprietary right, enforcement of our rights can be costly and unpredictable,
and a court may determine that the right belongs to a third party.
39
Legal
proceedings or third-party claims of intellectual property infringement and other challenges may require us to spend substantial time
and money and could prevent us from developing or commercializing our product candidates.
The
development, manufacture, use, offer for sale, sale or importation of our product candidates may infringe on the claims of third-party
patents or other intellectual property rights. The nature of claims contained in unpublished patent filings around the world is unknown
to us and it is not possible to know which countries patent holders may choose for the extension of their filings under the Patent Cooperation
Treaty, or other mechanisms. Therefore, there is a risk that we could adopt a technology without knowledge of a pending patent application,
which technology would infringe a third-party patent once that patent is issued. We may also be subject to claims based on the actions
of employees and consultants with respect to the usage or disclosure of intellectual property learned at other employers. The cost to
us of any intellectual property litigation or other infringement proceeding, even if resolved in our favor, could be substantial. Any
claims of patent infringement, even those without merit, could: be expensive and time consuming to defend; cause us or our partners to
cease making, licensing or using products that incorporate the challenged intellectual property; require us or our partners to redesign,
reengineer or rebrand our product candidates, if feasible; cause us to stop from engaging in normal operations and activities, including
developing and marketing product candidates; and divert management’s attention and resources. Some of our competitors may be able
to sustain the costs of such litigation or proceedings more effectively because of their substantially greater financial resources. Uncertainties
resulting from the initiation and continuation or defense of intellectual property litigation or other proceedings could have a material
adverse effect on our ability to compete in the marketplace. Intellectual property litigation and other proceedings may also absorb significant
management time. Consequently, we are unable to guarantee that we or our partners will be able to manufacture, use, offer for sale, sell
or import our product candidates in the event of an infringement action.
In
the event of patent infringement claims, or to avoid potential claims, we or our partners may choose or be required to seek a license
from a third party and would most likely be required to pay license fees or royalties or both. These licenses may not be available on
acceptable terms, or at all. Even if we or our partners were able to obtain a license, the rights may be non-exclusive, which could potentially
limit our competitive advantage. Ultimately, we or our partners could be prevented from commercializing a product or be forced to cease
some aspect of our business operations if, as a result of actual or threatened patent infringement or other claims, we or our partners
are unable to enter into licenses on acceptable terms. This inability to enter into licenses could harm our business significantly.
In
addition, because of our developmental stage, claims that our product candidates infringe on the patent rights of others are more likely
to be asserted after commencement of commercial sales incorporating our technology.
We
may be subject to claims that our or our partners' employees, consultants, or independent contractors have wrongfully used or disclosed
confidential information of third parties or that our or our partners' employees have wrongfully used or disclosed alleged trade secrets
of their former employers.
We
employ individuals who were previously employed at universities or other biotechnology or pharmaceutical companies, including our competitors
or potential competitors. Although we try to ensure that our employees, consultants, and independent contractors do not use the proprietary
information or know-how of others in their work for us, we may be subject to claims that we or our or our partners employees, consultants,
or independent contractors have inadvertently or otherwise used or disclosed intellectual property, including trade secrets or other proprietary
information, of any of our or our partners' employees’ former employers or other third parties. Litigation may be necessary to defend
against these claims. If we fail in defending any such claims, in addition to paying monetary damages, we may lose valuable intellectual
property rights or personnel, which could adversely impact our business. Even if we are successful in defending against such claims, litigation
could result in substantial costs and be a distraction to management and other employees.
40
Although
we believe that we and our partners take reasonable steps to protect our intellectual property, including the use of agreements relating
to the non-disclosure of confidential information to third parties, as well as agreements that purport to require the disclosure and assignment
to us or our partners of the rights to the ideas, developments, discoveries and inventions of our or our partners' employees and consultants
while we or our partners employ them, the agreements can be difficult and costly to enforce. Although we seek to obtain these types of
agreements from our contractors, consultants, advisors and research collaborators, to the extent that employees and consultants utilize
or independently develop intellectual property in connection with any of our projects, disputes may arise as to the intellectual property
rights associated with our product candidates. If a dispute arises, a court may determine that the right belongs to a third party. In
addition, enforcement of our rights can be costly and unpredictable. We also rely on trade secrets and proprietary know-how that we seek
to protect in part by confidentiality agreements with our employees, contractors, consultants, advisors or others. Despite the protective
measures we employ, we still face the risk that:
| • |
these agreements may be breached; |
| • |
these agreements may not provide adequate remedies for the applicable type of breach; |
| • |
our trade secrets or proprietary know-how will otherwise become known; or |
| • |
our competitors will independently develop similar technology or proprietary information. |
International
patent protection is particularly uncertain, and if we are involved in opposition proceedings in foreign countries, we may have to expend
substantial sums and management resources.
Patent
law outside the United States may be different than in the United States. Further, the laws of some foreign countries may not protect
our intellectual property rights to the same extent as the laws of the United States, if at all. A failure to obtain sufficient intellectual
property protection in any foreign country could materially and adversely affect our business, results of operations and future prospects.
Moreover, we may participate in opposition proceedings to determine the validity of our foreign patents or our competitors’ foreign
patents, which could result in substantial costs and divert management’s resources and attention. Additionally, due to uncertainty
in patent protection law, we have not filed applications in many countries where significant markets exist.
An
NDA submitted under Section 505(b)(2) subjects us to the risk that we may be subject to a patent infringement lawsuit that would delay
or prevent the review or approval of our product candidates.
In
the United States, we or our partners have filed and may in the future file NDAs for our product candidates for approval under Section
505(b)(2) of the FDCA. Section 505(b)(2) permits the submission of an NDA where at least some of the information required for approval
comes from studies that were not conducted by, or for, the applicant and on which the applicant has not obtained a right of reference.
To date we have filed two NDAs under this section. In October 2020, we submitted an NDA for marketing approval for Twyneo®, which
was granted by the FDA, and in June 2020, we submitted an NDA for marketing approval for Epsolay®. Both of these NDA’s
were accepted for filing by the FDA. The FDA granted marketing approval for Twyneo® in July 2021, and the FDA conducted a pre-approval
inspection of the production site for Epsolay® during the week of February 14, 2022.
A
505(b)(2) application enables us to reference published literature and/or the FDA’s previous findings of safety and effectiveness
for the branded reference drug. For NDAs submitted under Section 505(b)(2) of the FDCA, the patent certification and related provisions
of the Hatch-Waxman Act apply. In accordance with the Hatch-Waxman Act, such NDAs may be required to include certifications, known as
paragraph IV certifications, that certify that any patents listed in the FDA’s publication, “Approved Drug Products with Therapeutic
Equivalence Evaluations,” commonly known as the Orange Book, with respect to any product referenced in the 505(b)(2) application,
are invalid, unenforceable or will not be infringed by the manufacture, use or sale of the product that is the subject of the 505(b)(2)
NDA. Applicants must also notify the holder of the approved NDA for any product referenced in the 505(b)(2) application, along with all
patent owners, regarding submission of a paragraph IV certification with respect to applicable patents listed in the Orange Book.
41
Under
the Hatch-Waxman Act, the NDA holder and patent owner(s) may file a patent infringement lawsuit after receiving notice of the paragraph
IV certification. Filing of a patent infringement lawsuit against the filer of the 505(b)(2) application within 45 days of the patent
owner’s receipt of notice triggers a one-time, automatic, 30-month stay of the FDA’s ability to approve the 505(b)(2) NDA,
unless patent litigation is resolved in the favor of the paragraph IV filer or the patent expires before that time. Accordingly, we or
our partners may invest a significant amount of time and expense in the development of one or more product candidates only to be subject
to significant delay and patent litigation before such product candidates may be commercialized, if at all. Further, although the Section
505(b)(1) regulatory pathway is not subject to the same patent certification requirements as Section 505(b)(2) applications or ANDAs,
and is accordingly not associated with litigation under the Hatch-Waxman Act, we may still face non-Hatch-Waxman patent litigation for
products developed through the Section 505(b)(1) pathway.
In
addition, a 505(b)(2) application will not be approved until any non-patent exclusivity, such as exclusivity for obtaining approval of
a new chemical entity, or NCE, listed in the Orange Book for the referenced product has expired. The FDA may also require us or our partners
to perform one or more additional clinical trials or measurements to support the change from the branded reference drug, which could be
time consuming and could substantially delay our achievement of regulatory approvals for such product candidates. The FDA may also reject
our future 505(b)(2) submissions and require us or our partners to file such submissions under Section 505(b)(1) of the FDCA, which would
require us to provide extensive data to establish safety and effectiveness of the drug for the proposed use and could cause delay and
be considerably more expensive and time consuming. For products we develop under the Section 505(b)(1) pathway, the FDA may disagree that
our clinical data is sufficient for submission through this pathway, which could result in our inability to seek approval for such products
candidates. These factors, among others, may limit our or our partners' ability to successfully commercialize our product candidates.
Companies
that produce branded reference drugs routinely bring litigation against ANDA or 505(b)(2) applicants that seek regulatory approval to
manufacture and market generic and reformulated forms of their branded products. These companies often allege patent infringement or other
violations of intellectual property rights as the basis for filing suit against an ANDA or 505(b)(2) applicant. Likewise, patent holders
may bring patent infringement suits against companies that are currently marketing and selling their approved generic or reformulated
products.
Litigation
to enforce or defend intellectual property rights is often complex and often involves significant expense and can delay or prevent introduction
or sale of our product candidates. If patents are held to be valid and infringed by our product candidates in a particular jurisdiction,
we or our partners would, unless we or our partners could obtain a license from the patent holder, be required to cease selling in that
jurisdiction and may need to relinquish or destroy existing stock in that jurisdiction. There may also be situations where we and our
partners use our business judgment and decide to market and sell our approved product candidates, notwithstanding the fact that allegations
of patent infringement(s) have not been finally resolved by the courts, which is known as an “at-risk launch.” The risk involved
in doing so can be substantial because the remedies available to the owner of a patent for infringement may include, among other things,
damages measured by the profits lost by the patent owner and not necessarily by the profits earned by the infringer. In the case of a
willful infringement, the definition of which is subjective, such damages may be increased up to three times. Moreover, because of the
discount pricing typically involved with ANDA and, to a lesser extent, 505(b)(2), products, patented branded products generally realize
a substantially higher profit margin than ANDA and, to a lesser extent, 505(b)(2), products, resulting in disproportionate damages compared
to any profits earned by the infringer. An adverse decision in patent litigation could have a material adverse effect on our business,
financial position and results of operations and could cause the market value of our ordinary shares to decline.
42
Risks
Related to Our Operations in Israel
Our
headquarters, manufacturing and other significant operations are located in Israel and, therefore, our business and operations may be
adversely affected by political, economic and military conditions in Israel.
Our
business and operations will be directly influenced by the political, economic and military conditions affecting Israel at any given time.
A change in the security and political situation in Israel and in the economy could impede the raising of the funds required to finance
our research and development plans and to create joint ventures with third parties and could otherwise have a material adverse effect
on our business, operating results and financial condition. Since the establishment of the State of Israel in 1948, a number of armed
conflicts have taken place between Israel and its Arab neighbors, including Hezbollah in Lebanon (and Syria) and Hamas in the Gaza Strip,
both of which involved missile strikes in various parts of Israel causing the disruption of economic activities. Our principal offices
are located within the range of rockets that could be fired from Lebanon, Syria or the Gaza Strip into 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 between Israel and its present trading partners could result
in damage to our facilities and likewise have a material adverse effect on our business, operating results and financial condition.
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 if hostilities in the region continue or intensify. Such restrictions
may seriously limit our ability to sell our product candidates to customers in those countries. Any hostilities involving Israel or the
interruption or curtailment of trade between Israel and its present trading partners, or significant downturns in the economic or financial
condition of Israel, could adversely affect our operations and product development, cause our revenues to decrease and adversely affect
the share price of publicly traded companies having operations in Israel, such as us. Similarly, Israeli corporations are limited in conducting
business with entities from several countries.
Our
commercial insurance does not cover losses that may occur as a result of an event associated with the security situation in the Middle
East. Although the Israeli government is currently committed to covering the reinstatement value of direct damages that are caused by
terrorist attacks or acts of war, there can be 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, financial condition and results of operations.
Exchange
rate fluctuations between the U.S. dollar, the New Israeli Shekel and other foreign currencies, may negatively affect our future revenues.
In
the future, we expect that a substantial portion of our revenues will be generated in U.S. dollars, Euros and other foreign currencies,
although we currently incur a significant portion of our expenses in currencies other than U.S. dollars, and mainly in NIS. Our financial
records are maintained, and will be maintained, in U.S. dollars, which is our functional currency. As a result, our financial results
may be affected by fluctuations in the exchange rates of currencies in the countries in which our prospective product candidates may be
sold.
Our
operations may be affected by negative labor conditions in Israel.
Strikes
and work-stoppages occur relatively frequently in Israel. If Israeli trade unions threaten additional strikes or work-stoppages and such
strikes or work-stoppages occur, those may, if prolonged, have a material adverse effect on the Israeli economy and on our business, including
our ability to deliver products to our customers and to receive raw materials from our suppliers in a timely manner.
43
Our
operations could be disrupted as a result of the obligation of our personnel to perform military service.
Most
of our executive officers and key employees reside in Israel and, although most of them are no longer required to perform reserve duty,
some may be required to perform annual military reserve duty and may be called for active duty under emergency circumstances at any time.
Our operations could be disrupted by the absence for a significant period of time of one or more of these officers or key employees due
to military service. Any such disruption could adversely affect our business, results of operations and financial condition.
The
termination or reduction of tax and other incentives that the Israeli Government provides to domestic companies may increase the costs
involved in operating a company in Israel.
The
Israeli government currently provides tax and capital investment incentives to domestic companies, as well as grant and loan programs
relating to research and development and marketing and export activities. In recent years, the Israeli Government has reduced the benefits
available under these programs and the Israeli Governmental authorities have indicated that the government may in the future further reduce
or eliminate the benefits of those programs. We may take advantage of these benefits and programs in the future; however, there is no
assurance that such benefits and programs would continue to be available in the future to us. If such benefits and programs were terminated
or further reduced, it could have an adverse effect on our business, operating results and financial condition.
The
Israeli government grants that we have received require us to meet several conditions and may restrict our ability to manufacture some
of our product candidates and transfer relevant know-how outside of Israel and require us to satisfy specified conditions.
We
have received royalty-bearing grants from the government of Israel through the National Authority for Technological Innovation, or the
Israel Innovation Authority, also known as the IIA (formerly known as the Office of the Chief Scientist of the Ministry of Economy and
Industry, or the OCS, for the financing of a portion of our research and development expenditures in Israel. These IIA grants relate to
a peripheral line of product candidates which forms a negligible part of our activities. We are required to pay the IIA royalties from
the revenues generated from the sale of products (and related services) or services developed (in all or in part) using the IIA grants
we received as part of a research and development program funded by the IIA, or the Approved Program, (at rates which are determined
under the Encouragement of Research, Development and Technological Innovation in the Industry Law 5744-1984, or the Innovation Law, and
related rules and regulations), up to the aggregate amount of the total grants received by the IIA, plus annual interest at an annual
rate based on LIBOR. As we received grants from the IIA, we are subject to certain restrictions under the Innovation Law and related rules
and regulations. These restrictions may impair our ability to perform or outsource manufacturing outside of Israel, granting licenses
for R&D purposes or otherwise transfer outside of Israel the know-how resulting, directly or indirectly, in whole or in part, in accordance
with or as a result of, research and development activities made according to an Approved Program, as well as any rights associated with
such know-how (including later developments, which derive from, are based on, or constitute improvements or modifications of such know-how),
or the IIA Funded Know-How.
The
restrictions under the IIA’s rules and guidelines continue to apply even after payment of the full amount of royalties payable pursuant
to the grants. In addition, the government of the State of Israel may from time to time audit sales of products which it claims incorporate
IIA Funded Know-How and this may lead to additional royalties being payable on additional product candidates, and may subject such products
to the restrictions and obligations specified hereunder. Following an audit conducted by the IIA, the IIA confirmed to us that products
based on encapsulation technology of solid material are exempt from royalty payment obligations to the IIA. Twyneo® and Epsolay®
fall within the category of products based on encapsulation technology of solid material. However, there can be no guarantee that the
IIA will not in the future attempt to claim royalties with respect to these products, or that future products will not be subject to royalties.
These
restrictions may impair our ability to enter into agreements for IIA Funded Know-How product candidates or technologies without the approval
of the IIA. We cannot be certain that any approval of the IIA will be obtained on terms that are acceptable to us, or at all. Furthermore,
in the event that we undertake a transaction involving the transfer to a non-Israeli entity of IIA Funded Know-How pursuant to a merger
or similar transaction, or in the event we undertake a transaction involving the licensing of IIA Funded Know-How for R&D purposes
to a non-Israeli entity, the consideration available to our shareholders may be reduced by the amounts we are required to pay to the IIA.
Any approval, if given, will generally be subject to additional financial obligations. Failure to comply with the requirements under the
IIA’s rules and guidelines and the Innovation Law may subject us to financial sanctions, to mandatory repayment of grants received
by us (together with interest and penalties), as well as expose us to criminal proceedings.
44
Enforcing
a U.S. judgment against us and our current executive officers and directors, or asserting U.S. securities law claims in Israel, may be
difficult.
We
are incorporated in Israel. All of our current executive officers and directors reside in Israel (other than two of our directors who
reside in the United States) and most of our assets reside outside of the United States. Therefore, a judgment obtained against us or
any of these persons in the United States, including one based on the civil liability provisions of the U.S. federal securities laws,
may not be collectible in the United States and may not be enforced by an Israeli court. It may also be difficult to effect service of
process on these persons in the United States or to assert U.S. securities law claims in original actions instituted in Israel.
Even
if an Israeli court agrees to hear such a claim, it may determine that Israeli, and not U.S., law is applicable to the claim. Under Israeli
law, if U.S. law is found to be applicable to such a claim, the content of applicable U.S. law must be proved as a fact, which can be
a time-consuming and costly process, and certain matters of procedure would be governed by Israeli law. There is little binding case law
in Israel addressing these matters.
Provisions
of our amended and restated articles of association and Israeli law and tax considerations may delay, prevent or make difficult an acquisition
of us, which could prevent a change of control and negatively affect the price of our ordinary shares.
Israeli
corporate law regulates mergers, requires tender offers for acquisitions of shares above specified thresholds, requires special approvals
for certain transactions involving directors, officers or significant shareholders and regulates other matters that may be relevant to
these types of transactions. These provisions of Israeli law may delay, prevent or make difficult an acquisition of us, which could prevent
a change of control and therefore depress the price of our ordinary shares.
Our
amended and restated articles of association provide that our directors (other than external directors) are elected on a staggered basis,
such that a potential acquirer cannot readily replace our entire board of directors at a single annual general shareholder meeting.
Furthermore,
Israeli tax considerations may make potential transactions unappealing to us or to our shareholders, especially for those shareholders
whose country of residence does not have a tax treaty with Israel which exempts such shareholders from Israeli tax. For example, Israeli
tax law does not recognize tax-free share exchanges to the same extent as U.S. tax law. With respect to mergers, Israeli tax law allows
for tax deferral in certain circumstances but makes the deferral contingent on the fulfillment of a number of conditions, including, in
some cases, a holding period of two years from the date of the transaction during which sales and dispositions of shares of the participating
companies are subject to certain restrictions. Moreover, with respect to certain share swap transactions, the tax deferral is limited
in time, and when such time expires, the tax becomes payable even if no disposition of the shares has occurred.
We
may become subject to claims for remuneration or royalties for assigned service invention rights by our employees, which could result
in litigation and adversely affect our business.
We
have entered into assignment of invention agreements with our employees pursuant to which such individuals agree to assign to us all rights
to any inventions created during and as a result of their employment or engagement with us. A significant portion of our intellectual
property has been developed by our employees in the course of their employment for us. Under the Israeli Patents Law, 5727-1967, or the
Patents Law, inventions conceived by an employee during the scope of his or her employment with a company and as a result thereof are
regarded as “service inventions,” which belong to the employer, absent a specific agreement between the employee and employer
giving the employee service invention rights. The Patents Law also provides that if there is no agreement between an employer and an employee
with respect to the employee’s right to receive compensation for such “service inventions,” the Israeli Compensation
and Royalties Committee, or the Committee, a body constituted under the Patents Law, shall determine whether the employee is entitled
to remuneration for service inventions developed by such employee and the scope and conditions for such remuneration. Although our employees
have agreed to assign to us service invention rights and have waived their right to receive remuneration for their service inventions,
as a result of uncertainty under Israeli law with respect to the efficacy of waivers of service invention rights, we may face claims demanding
remuneration in consideration for assigned inventions. As a consequence of such claims, we could be required to pay additional remuneration
or royalties to our current and/or former employees, or be forced to litigate such claims, which could negatively affect our business.
45
The
government tax benefits that we currently are entitled to receive require us to meet several conditions and may be terminated or reduced
in the future.
Some
of our operations in Israel may entitle us to certain tax benefits under the Law for the Encouragement of Capital Investments, 5719-1959,
or the Investment Law, once we begin to produce revenues. If we do not meet the requirements for maintaining these benefits, they may
be reduced or cancelled and the relevant operations would be subject to Israeli corporate tax at the standard rate, which is set at 23%
in 2022. In addition to being subject to the standard corporate tax rate, we could be required to refund any tax benefits that we have
already received, plus interest and penalties thereon. Even if we continue to meet the relevant requirements, the tax benefits that our
current “Benefited Enterprise” is entitled to may not be continued in the future at their current levels or at all. If these
tax benefits were reduced or eliminated, the amount of taxes that we pay would likely increase, as all of our operations would consequently
be subject to corporate tax at the standard rate, which could adversely affect our results of operations. Additionally, if we increase
our activities outside of Israel, for example, by way of acquisitions, our increased activities may not be eligible for inclusion in Israeli
tax benefits programs. See “Item 10. Additional Information — Israeli Tax Considerations and Government Programs — Tax
Benefits Under the 2011 Amendment” for additional information concerning these tax benefits.
Your
rights and responsibilities as a shareholder will be governed by Israeli law, which differs in some material respects from the rights
and responsibilities of shareholders of U.S. companies.
The
rights and responsibilities of the holders of our ordinary shares are governed by our amended and restated articles of association and
by Israeli law. These rights and responsibilities differ in some material respects from the rights and responsibilities of shareholders
in U.S. corporations. For example, a shareholder of an Israeli company has a duty to act in good faith and in a customary manner in exercising
its rights and performing its obligations towards the company and other shareholders, and to refrain from abusing its power in the company,
including, among other things, voting at a general meeting of shareholders on matters such as amendments to a company’s articles
of association, increases in a company’s authorized share capital, mergers and acquisitions and related party transactions requiring
shareholder approval. In addition, a shareholder who is aware that it possesses the power to determine the outcome of a shareholder vote
or to appoint or prevent the appointment of a director or executive officer in the company has a duty of fairness toward the company.
There is limited case law available to assist us in understanding the nature of these duties or the implications of these provisions.
These provisions may be interpreted to impose additional obligations and liabilities on holders of our ordinary shares that are not typically
imposed on shareholders of U.S. corporations.
46
Risks
Related to Employee Matters
If
we are not able to retain our key management, or attract and retain qualified scientific, technical and business personnel, our ability
to implement our business plan may be adversely affected.
Our
success largely depends on the skill, experience and effort of our senior management. The loss of the service of any of these persons,
including the chairman of our board of directors, Mr. Moshe Arkin, and our chief executive officer, Dr. Alon Seri-Levy, would likely result
in a significant loss in the knowledge and experience that we possess and could significantly delay or prevent successful product development
and other business objectives. There is intense competition from numerous pharmaceutical and biotechnology companies, universities, governmental
entities and other research institutions, seeking to employ qualified individuals in the technical fields in which we operate, and we
may not be able to attract and retain the qualified personnel necessary for the successful development and commercialization of our product
candidates.
Under
applicable employment laws, we may not be able to enforce covenants not to compete.
Our
employment agreements generally include covenants not to compete. These agreements prohibit our employees, if they cease working for us,
from competing directly with us or working for our competitors for a limited period. We may be unable to enforce these agreements under
the laws of the jurisdictions in which our employees work. For example, Israeli courts have required employers seeking to enforce covenants
not to compete to demonstrate that the competitive activities of a former employee will harm one of a limited number of material interests
of the employer, such as the secrecy of a company’s confidential commercial information or the protection of its intellectual property.
If we cannot demonstrate that such an interest will be harmed, we may be unable to prevent our competitors from benefiting from the expertise
of our former employees and our competitiveness may be diminished.
Risks
Related to Our Ordinary Shares
The
controlling share ownership position of Arkin Dermatology will limit your ability to elect the members of our board of directors, may
adversely affect our share price and will result in our non-affiliated investors having very limited, if any, influence on corporate actions.
Arkin
Dermatology is currently our controlling shareholder. As of March 1, 2022, Arkin Dermatology beneficially owned approximately 62.4% of
the voting power of our outstanding ordinary shares. Therefore, Arkin Dermatology has the ability to substantially influence us and exert
significant control through this ownership position. For example, Arkin Dermatology is able to control elections of directors, amendments
of our organizational documents, and approval of any merger, amalgamation, sale of assets or other major corporate transaction. Arkin
Dermatology’s interests may not always coincide with our corporate interests or the interests of other shareholders, and it may
exercise its voting and other rights in a manner with which you may not agree or that may not be in the best interests of our other shareholders.
So long as it continues to own a significant amount of our equity, Arkin Dermatology will continue to be able to strongly influence and
significantly control our decisions.
We
are a “controlled company” within the meaning of Nasdaq listing standards and, as a result, will qualify for, and intend to
rely on, exemptions from certain corporate governance requirements.
As
a result of the number of shares owned by Arkin Dermatology, we are a “controlled company” under the Nasdaq corporate governance
rules. A “controlled company” is a company of which more than 50% of the voting power is held by an individual, group or another
company. Pursuant to the “controlled company” exemption, we are not required to, and may not in the future comply with the
requirement that a majority of our board of directors consist of independent directors, and we are not required to, and do not intend
to comply with the requirement that we have a nominating committee composed entirely of independent directors with a written charter addressing
such committee’s purpose and responsibilities. A majority of our board of directors currently consists of independent directors.
See “Item 16G. Corporate Governance—Controlled Company.” Accordingly, you do not have the same protections afforded
to shareholders of companies that are subject to all of the corporate governance requirements of the Nasdaq Global Market.
47
The
market price of our ordinary shares could be negatively affected by future sales of our ordinary shares.
As
of February 26, 2022, there were 23,000,782 ordinary shares outstanding. Future sales by us or our shareholders of a substantial number
of our ordinary shares in the public market, or the perception that these sales might occur, could cause the market price of our ordinary
shares to decline or could impair our ability to raise capital through a future sale of, or pay for acquisitions using, our equity securities.
Of our issued and outstanding shares, all of the ordinary shares listed for trading are freely transferable, except for any shares held
by our “affiliates,” as that term is defined in Rule 144 under the Securities Act of 1933, as amended, or the Securities Act.
In
addition, we have filed a registration statement on Form S-8 with the Securities and Exchange Commission, or the SEC, covering all of
the ordinary shares issuable under our 2014 Share Incentive Plan, and we intend to filed one or more registration statements on Form S-8
covering all of the ordinary shares issuable under any other equity incentive plans that we may adopt, and such shares will be freely
transferable, except for any shares held by “affiliates,” as such term is defined in Rule 144 under the Securities Act. The
market price of our ordinary shares may drop significantly when the restrictions on resale by our existing shareholders lapse and these
shareholders are able to sell our ordinary shares into the market.
Upon
the filing of the registration statements and following the expiration of the lock-up restrictions described above, the number of ordinary
shares that are potentially available for sale in the open market will increase materially, which could make it harder for the value of
our ordinary shares to appreciate unless there is a corresponding increase in demand for our ordinary shares. This increase in available
shares could result in the value of your investment in our ordinary shares decreasing.
In
addition, a sale by us of additional ordinary shares or similar securities in order to raise capital might have a similar negative impact
on the share price of our ordinary shares. A decline in the price of our ordinary shares might impede our ability to raise capital through
the issuance of additional ordinary shares or other equity securities and may cause you to lose part or all of your investment in our
ordinary shares.
Arkin
Dermatology, our controlling shareholder, as holder of 14,432,266 of our ordinary shares as of February 26, 2021, is entitled to require
that we register under the Securities Act the resale of these shares into the public markets. All shares sold pursuant to an offering
covered by such registration statement will be freely transferable. See “Item 7.B — Related Party Transactions — Registration
Rights Agreement”.
We
have broad discretion as to the use of the net proceeds from our public offerings and may not use them effectively.
We
intend to use the remaining net proceeds from our public offering February 2020 (and concurrent private placement with our controlling
shareholder, Arkin Dermatology) to fund development activities for our product candidates.
The remaining proceeds will be used for other research and development activities, as well as for working capital and general corporate
purposes. However, our management has broad discretion in the application of the net proceeds. Our shareholders may not agree with the
manner in which our management chooses to allocate the net proceeds from our initial public offering. The failure by our management to
apply these funds effectively could have a material adverse effect on our business, financial condition and results of operation. Pending
their use, we may invest the net proceeds from our public offerings in a manner that does not produce income.
We
do not intend to pay dividends on our ordinary shares for at least the next several years.
We
do not anticipate paying any cash dividends on our ordinary shares for at least the next several years. We currently intend to retain
all available funds and any future earnings to fund the development and growth of our business. As a result, capital appreciation, if
any, of our ordinary shares will be the investors’ sole source of gain for at least the next several years. In addition, Israeli
law limits our ability to declare and pay dividends and may subject us to certain Israeli taxes. For more information, see “Item
8. Financial Information – A. Financial Statements and Other Financial Information – Dividend Policy.”
48
As
a foreign private issuer whose shares are listed on The Nasdaq Global Market, we intend to follow certain home country corporate governance
practices instead of certain Nasdaq requirements.
As
a foreign private issuer whose shares will be listed on The Nasdaq Global Market, we are permitted to follow certain home country corporate
governance practices instead of certain requirements of the rules of The Nasdaq Global Market. Pursuant to the “foreign private
issuer exemption”:
| • |
we established a quorum requirement such that the quorum for any meeting of shareholders is two or more
shareholders holding at least 33 1∕3% of our voting rights, which complies with Nasdaq requirements; however, if the meeting is
adjourned for lack of quorum, the quorum for such adjourned meeting will be any number of shareholders, instead of 33 1∕3% of our
voting rights; |
| • |
we also intend to adopt and approve material changes to equity incentive plans in accordance with Israeli
Companies Law, 5759-1999, or with the Companies Law, which does not impose a requirement of shareholder approval for such actions. In
addition, we intend to follow Israeli corporate governance practice in lieu of Nasdaq Marketplace Rule 5635(c), which requires shareholder
approval prior to an issuance of securities in connection with equity-based compensation of officers, directors, employees or consultants;
|
| • |
as opposed to making periodic reports to shareholders in the manner specified by the Nasdaq corporate
governance rules, the Companies Law does not require us to distribute periodic reports directly to shareholders, and the generally accepted
business practice in Israel is not to distribute such reports to shareholders but to make such reports available through a public website.
We will only mail such reports to shareholders upon request; and |
| • |
we will follow Israeli corporate governance practice instead of Nasdaq requirements to obtain shareholder
approval for certain dilutive events (such as issuances that will result in a change of control, certain transactions other than a public
offering involving issuances of a 20% or greater interest in us and certain acquisitions of the stock or assets of another company). Accordingly,
our shareholders may not be afforded the same protection as provided under Nasdaq corporate governance rules. |
Otherwise,
we intend to comply with the rules generally applicable to U.S. domestic companies listed on the Nasdaq Global Market. However, we may
in the future decide to use the foreign private issuer exemption with respect to some or all of the other Nasdaq corporate governance
rules. Following our home country governance practices as opposed to the requirements that would otherwise apply to a U.S. company listed
on the Nasdaq Global Market may provide less protection than is accorded to investors of domestic issuers. See “Item 16G. Corporate
Governance – Controlled Company".
In
addition, as a foreign private issuer, we are exempted from the rules and regulations under the United States Securities Exchange Act
of 1934, as amended, or the Exchange Act, related to the furnishing and content of proxy statements (including disclosures with respect
to executive compensation), and our officers, directors, and principal shareholders are exempted from the reporting and short-swing profit
recovery provisions contained in Section 16 of the Exchange Act. In addition, we are not required under the Exchange Act to file annual,
quarterly and current reports and financial statements with the SEC as frequently or as promptly as domestic companies whose securities
are registered under the Exchange Act.
We
may lose our foreign private issuer status which would then require us to comply with the Exchange Act’s domestic reporting regime
and cause us to incur significant legal, accounting and other expenses.
We
are a foreign private issuer and therefore we are not required to comply with all of the periodic disclosure and current reporting requirements
of the Exchange Act applicable to U.S. domestic issuers. In order to maintain our current status as a foreign private issuer, either (a)
a majority of our ordinary shares must be either directly or indirectly owned of record by non-residents of the United States or (b)(i)
a majority of our executive officers or directors may not be U.S. citizens or residents, (ii) more than 50 percent of our assets cannot
be located in the United States and (iii) our business must be administered principally outside the United States. If we were to lose
this status, we would be required to comply with the Exchange Act reporting and other requirements applicable to U.S. domestic issuers,
which are more detailed and extensive than the requirements for foreign private issuers. We may also be required to make changes in our
corporate governance practices in accordance with various SEC and Nasdaq rules. The regulatory and compliance costs to us under U.S. securities
laws if we are required to comply with the reporting requirements applicable to a U.S. domestic issuer may be significantly higher than
the cost we would incur as a foreign private issuer. As a result, we expect that a loss of foreign private issuer status would increase
our legal and financial compliance costs and would make some activities highly time consuming and costly. We also expect that if we were
required to comply with the rules and regulations applicable to U.S. domestic issuers, it would make it more difficult and expensive for
us to obtain director and officer liability insurance, and we may be required to accept reduced coverage or incur substantially higher
costs to obtain coverage. These rules and regulations could also make it more difficult for us to attract and retain qualified members
of our supervisory board.
49
We
are an “emerging growth company” and the reduced disclosure requirements applicable to emerging growth companies may make
our ordinary shares less attractive to investors.
We
are an “emerging growth company,” as defined in the JOBS Act, and we may take advantage of certain exemptions from various
requirements that are applicable to other public companies that are not “emerging growth companies.” Most of such requirements
relate to disclosures that we would only be required to make if we also ceased to be a foreign private issuer in the future, for example,
the requirement to hold stockholder advisory votes on executive and severance compensation and executive compensation disclosure requirements
for U.S. companies. However, as a foreign private issuer, we could still be required to comply with the auditor attestation requirements
of Section 404 of the Sarbanes-Oxley Act. We are exempt from such requirement for as long as we remain an emerging growth company, which
may be up to five fiscal years after the date of our initial public offering. We will remain an emerging growth company until the earliest
of: (a) the last day of our fiscal year during which we have total annual gross revenues of at least $1.07 billion; (b) December 31, 2023,
the last day of our fiscal year following the fifth anniversary of the closing of our initial public offering; (c) the date on which we
have, during the previous three-year period, issued more than $1.0 billion in non-convertible debt; or (d) the date on which we are deemed
to be a “large accelerated filer” under the Exchange Act. We may choose to take advantage of some or all of the available
exemptions. When we are no longer deemed to be an emerging growth company, we will not be entitled to the exemptions provided in the JOBS
Act discussed above. We cannot predict if investors will find our ordinary shares less attractive as a result of our reliance on exemptions
under the JOBS Act. If some investors find our ordinary shares less attractive as a result, there may be a less active trading market
for our ordinary shares and our share price may be more volatile.
We
may be considered to be a passive foreign investment company for U.S. federal income tax purposes for the current tax year and possibly
thereafter, which could result in materially adverse U.S. federal income tax consequences to U.S. Holders of our ordinary shares or warrants.
A
non-U.S. entity treated as a corporation for U.S. federal income tax purposes will be a passive foreign investment company, or PFIC, for
any taxable year if either (i) at least 75% of its gross income for such year is passive income or (ii) at least 50% of the value of its
assets (based on an average of the quarterly values of the assets) during such year is attributable to assets that produce passive income
or are held for the production of passive income. For our 2019, through 2021 taxable years we generated revenue under our then collaboration
agreement with Perrigo UK Finco Limited Partnership, or Perrigo, for the development of a generic product candidate. In 2021, we sold
our rights to this and other generic products and will unconditionally receive further revenue over 24 months in lieu of our share in
the collaboration agreements with respect to these products. Starting in 2021, we began generating revenue under our license agreements
with Galderma for Twyneo®, and Epsolay®. See “Item 4. Information on the Company – B. Business Overview”.
.. Though the application of the relevant rules governing the characterization of the foregoing revenue for purposes of the PFIC income
test is uncertain, we intend to take the position that, based on our involvement and management contributions throughout the development
process, such revenue is non-passive for PFIC purposes. As a result, based on the current and anticipated value and composition of our
income and assets, we do not expect that we will be treated as a PFIC for U.S. federal income tax purposes for our current taxable year
or for foreseeable future years. However, there are substantial factual and legal ambiguities regarding the nature of the revenue and
the application of the relevant PFIC rules, and thus, the determination that such revenue is non-passive is not without doubt, and alternative
characterizations are possible.
50
A
separate determination has to be made after the close of each taxable year as to whether we were a PFIC for that year. Because the value
of our assets for purposes of the PFIC test will generally be determined by reference to the market price of our ordinary shares, our
PFIC status may depend in part on the market price of our ordinary shares, which may fluctuate significantly. In addition, there are certain
other ambiguities in applying the PFIC test to us. If we are considered a PFIC, material adverse U.S. federal income tax consequences
could apply to U.S. Holders (as defined in “Item 10. Additional Information – E. Taxation – U.S. Federal Income Tax
Considerations with respect to the Company”) of our ordinary shares or warrants with respect to any “excess distribution”
received from us and any gain from a sale or other disposition of our ordinary shares or warrants. Please see “Item 10. Additional
Information – E. Taxation – U.S. Federal Income Tax Considerations with respect to the Company.”
If
a United States person is treated as owning at least 10% of our ordinary shares, such holder may be subject to adverse U.S. federal income
tax consequences.
If
a United States person is treated as owning (directly, indirectly or constructively) at least 10% of the value or voting power of our
ordinary shares, such person may be treated as a “United States shareholder” with respect to each “controlled foreign
corporation” in our group (if any). If our group includes one or more U.S. subsidiaries, under recently-enacted rules, certain
of our non-U.S. subsidiaries could be treated as controlled foreign corporations regardless of whether we are not treated as a controlled
foreign corporation (although there is currently a pending legislative proposal to significantly limit the application of these rules).
A United States shareholder of a controlled foreign corporation may be required to report annually and include in its U.S. taxable income
its pro rata share of “Subpart F income,” “global intangible low-taxed income” and investments in U.S. property
by controlled foreign corporations, regardless of whether we make any distributions. An individual that is a United States shareholder
with respect to a controlled foreign corporation generally would not be allowed certain tax deductions or foreign tax credits that would
be allowed to a United States shareholder that is a U.S. corporation. Failure to comply with these reporting obligations may subject you
to significant monetary penalties and may prevent the statute of limitations with respect to your U.S. federal income tax return for the
year for which reporting was due from starting. We cannot provide any assurances that we will assist investors in determining whether
any of our non-U.S. subsidiaries are treated as a controlled foreign corporation or whether such investor is treated as a United States
shareholder with respect to any of such controlled foreign corporations or furnish to any United States shareholders information that
may be necessary to comply with the aforementioned reporting and tax paying obligations. A United States investor should consult
its advisors regarding the potential application of these rules to an investment in the ordinary shares.
General
Risk Factors
Our
business and operations may suffer in the event of information technology system failures, cyberattacks or deficiencies in our cyber-security.
We
collect and maintain information in digital form that is necessary to conduct our business, and we are increasingly dependent on information
technology systems and infrastructure to operate our business. In the ordinary course of our business, we collect, store and transmit
large amounts of confidential information, including intellectual property, proprietary business information and personal information.
It is critical that we do so in a secure manner to maintain the confidentiality and integrity of such confidential information. Despite
the implementation of security measures, our internal information technology systems, and those of third parties on which we rely, are
vulnerable to attack and damage or interruption from computer viruses, malware (e.g. ransomware), malicious code, natural disasters, terrorism,
war, telecommunication and electrical failures, cyberattacks, hacking, phishing attacks and other social engineering schemes, employee
theft or misuse, human error, fraud, denial or degradation of service attacks, sophisticated nation-state and nation-state-supported actors
or unauthorized access or use by persons inside our organization, or persons with access to systems inside our organization. . The
risk of a security breach or disruption, particularly through cyberattacks or cyber intrusion, including by computer hackers, foreign
governments, and cyber terrorists, has generally increased as the number, intensity and sophistication of attempted attacks and intrusions
from around the world have increased. Furthermore, because the techniques used to obtain unauthorized access to, or to sabotage, systems
change frequently and often are not recognized until launched against a target, we may be unable to anticipate these techniques or implement
adequate preventative measures. We may also experience security breaches that may remain undetected for an extended period. Even if identified,
we may be unable to adequately investigate or remediate incidents or breaches due to attackers increasingly using tools and techniques
that are designed to circumvent controls, to avoid detection, and to remove or obfuscate forensic evidence.
51
We
and certain of our service providers are from time to time subject to cyberattacks and security incidents. While we do not believe that
we have experienced any significant system failure, accident or security breach to date, if such an event were to occur and cause interruptions
in our operations or the operations of our partners and service providers, it could result in a material disruption of our product development
programs. For example, the loss of clinical trial data from completed or ongoing or planned clinical trials could result in delays in
our regulatory approval efforts and significantly increase our costs to recover or reproduce the data. To the extent that any disruption
or security breach was to result in a loss of or damage to our data or applications, or inappropriate disclosure of confidential or proprietary
information, we could incur material legal claims and liability, and damage to our reputation, and the further development of our product
candidates could be delayed.
We
may incur substantial expenses as a result of the limited nature of our disaster recovery and business continuity plan.
We
have implemented a business continuity plan to prevent the collapse of critical business processes to a large extent or to enable the
resumption of critical business processes in case a natural disaster, public health emergency, such as the global pandemic of Novel Coronavirus
Disease 2019, or COVID-19, or other serious event occurs. However, depending on the severity of the situation, it may be difficult or
in certain cases impossible for us to continue our business for a significant period of time. Our contingency plans for disaster recovery
and business continuity may prove inadequate in the event of a serious disaster or similar event and we may incur substantial costs that
could have a material adverse effect on our business.
If
we do not comply with laws regulating the protection of the environment and health and human safety, our business could be adversely affected.
Our
research and development and manufacturing involve the use of hazardous materials and chemicals and related equipment. If an accident
occurs, we could be held liable for resulting damages, which could be substantial. We are also subject to numerous environmental, health
and workplace safety laws and regulations, including those governing laboratory procedures and the handling of biohazardous materials.
We do not maintain insurance for environmental liability claims that may be asserted against us. Moreover, additional foreign and local
laws and regulations affecting our operations may be adopted in the future. We may incur substantial costs to comply with such regulations
and pay substantial fines or penalties if we violate any of these laws or regulations.
With
respect to environmental, safety and health laws and regulations, we cannot accurately predict the outcome or timing of future expenditures
that we may be required to make in order to comply with such laws as they apply to our operations and facilities. We are also subject
to potential liability for the remediation of contamination associated with both present and past hazardous waste generation, handling,
and disposal activities. We will be periodically subject to environmental compliance reviews by environmental, safety, and health regulatory
agencies. Environmental laws are subject to change and we may become subject to stricter environmental standards in the future and face
larger capital expenditures in order to comply with environmental laws which could have a material adverse effect on our business.
52
The
price of our ordinary shares may be volatile and may fluctuate due to factors beyond our control.
The
share price of publicly traded emerging biopharmaceutical and drug discovery and development companies has been highly volatile and is
likely to remain highly volatile in the future. The market price of our ordinary shares may fluctuate significantly due to a variety of
factors, including:
| • |
positive or negative results of testing and clinical trials by us, strategic partners and competitors;
|
| • |
delays in entering into strategic relationships with respect to development and/or commercialization
of our product candidates or entry into strategic relationships on terms that are not deemed to be favorable to us; |
| • |
technological innovations or commercial product introductions by us or competitors; |
| • |
changes in government regulations; |
| • |
developments concerning proprietary rights, including patents and litigation matters; |
| • |
public concern relating to the commercial value or safety of any of our product candidates; |
| • |
financing or other corporate transactions; |
| • |
publication of research reports or comments by securities or industry analysts; |
| • |
general market conditions in the pharmaceutical industry or in the economy as a whole; or |
| • |
other events and factors, many of which are beyond our control. |
These
and other market and industry factors may cause the market price and demand for our ordinary shares to fluctuate substantially, regardless
of our actual operating performance, which may limit or prevent investors from readily selling their ordinary shares and may otherwise
negatively affect the liquidity of our ordinary shares. In addition, the stock market in general, and biopharmaceutical companies in particular,
have experienced extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance
of these companies.
If
equity research analysts do not publish research or reports about our business or if they issue unfavorable commentary or downgrade our
ordinary shares, the price of our ordinary shares could decline.
The
trading market for our ordinary shares relies in part on the research and reports that equity research analysts publish about us and our
business. The price of our ordinary shares could decline if one or more securities analysts downgrade our ordinary shares or if those
analysts issue other unfavorable commentary or cease publishing reports about us or our business.
We
have been incurring and will continue to incur increased costs as a result of operating as a public company, and our management will be
required to devote substantial time to new compliance initiatives.
As
a public company whose ordinary shares are listed in the United States, and particularly after we no longer qualify as an emerging growth
company, we have been incurring and will continue to incur accounting, legal and other expenses that we did not incur as a private company,
including costs associated with our reporting requirements under the Exchange Act. We also have incurred and anticipate that we will continue
to incur costs associated with corporate governance requirements, including requirements under Section 404 and other provisions of the
Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley Act, as well as rules implemented by the SEC and The Nasdaq Global Market, and provisions
of Israeli corporate law applicable to public companies. These rules and regulations increase our legal and financial compliance costs,
introduce new costs such as investor relations and stock exchange listing fees, and makes some activities more time-consuming and costly.
Our board and other personnel need to devote a substantial amount of time to these initiatives. We are currently evaluating and monitoring
developments with respect to these rules, and we cannot predict or estimate the amount of additional costs we may incur or the timing
of such costs. As an “emerging growth company,” as defined in the JOBS Act, we may take advantage of certain temporary exemptions
from various reporting requirements, including, but not limited to, not being required to comply with the auditor attestation requirements
of Section 404 of the Sarbanes-Oxley Act (and the rules and regulations of the SEC thereunder). When these exemptions cease to apply,
we expect to incur additional expenses and devote increased management effort toward ensuring compliance with them. We cannot predict
or estimate the amount of additional costs we may incur as a result of becoming a public company or the timing of such costs.
53
Pursuant
to Section 404 of the Sarbanes-Oxley Act and the related rules adopted by the SEC and the Public Company Accounting Oversight Board, starting
with the Annual Report for the year ended on December 31, 2019, our management is required to report on the effectiveness of our internal
control over financial reporting. In addition, once we no longer qualify as an “emerging growth company” under the JOBS Act
and lose the ability to rely on the exemptions related thereto discussed above and depending on our status as per Rule 12b-2 of the Exchange
Act, our independent registered public accounting firm may also need to attest to the effectiveness of our internal control over financial
reporting under Section 404. The process of determining whether our existing internal controls over financial reporting systems are compliant
with Section 404 and whether there are any material weaknesses or significant deficiencies in our existing internal controls requires
the investment of substantial time and resources, including by our chief financial officer and other members of our senior management.
As a result, this process may divert internal resources and take a significant amount of time and effort to complete. In addition, while
our assessment of our internal control over financial reporting resulted in our conclusion that as of December 31, 2021, our internal
control over financial reporting was effective, we cannot predict the outcome of this determination in future years and whether we will
need to implement remedial actions in order to implement effective controls over financial reporting. The determination and any remedial
actions required could result in us incurring additional costs that we did not anticipate, including the hiring of outside consultants.
As a result, we may experience higher than anticipated operating expenses, as well as higher independent auditor fees during and after
the implementation of these changes. If we are unable to implement any of the required changes to our internal control over financial
reporting effectively or efficiently or are required to do so earlier than anticipated, it could adversely affect our operations, financial
reporting and/or results of operations and could result in an adverse opinion on internal controls from our independent auditors.
Changes
in the laws and regulations affecting public companies will result in increased costs to us as we respond to their requirements. These
laws and regulations could make it more difficult or more costly for us to obtain certain types of insurance, including director and officer
liability insurance, and we may be forced to accept reduced policy limits and coverage or incur substantially higher costs to obtain the
same or similar coverage. The impact of these requirements could also make it more difficult for us to attract and retain qualified persons
to serve on our board of directors, our board committees or as executive officers. We cannot predict or estimate the amount or timing
of additional costs we may incur in order to comply with such requirements.
If
we fail to maintain an effective system of internal control over financial reporting, we may not be able to accurately report our financial
results or prevent fraud. As a result, shareholders could lose confidence in our financial and other public reporting, which would harm
our business and the trading price of our ordinary shares.
Effective
internal control over financial reporting is necessary for us to provide reliable financial reports. Any failure to implement required
new or improved controls, or difficulties encountered in their implementation could cause us to fail to meet our reporting obligations.
While our assessment of our internal control over financial reporting resulted in our conclusion that as of December 31, 2021, our internal
control over financial reporting was effective, we cannot predict the outcome of our testing or any subsequent testing by our auditor
in future periods. Any testing by us conducted in connection with Section 404, or any subsequent testing by our independent registered
public accounting firm, may reveal deficiencies in our internal controls over financial reporting that are deemed to be material weaknesses
or that may require prospective or retroactive changes to our financial statements or identify other areas for further attention or improvement.
Inferior internal controls could also cause investors to lose confidence in our reported financial information and affect our reputation,
which could have a negative effect on the trading price of our ordinary shares.
54
Our
management will be required to assess the effectiveness of our internal controls and procedures and disclose changes in these controls
on an annual basis. However, for as long as we are an “emerging growth company” under the JOBS Act, our independent registered
public accounting firm will not be required to attest to the effectiveness of our internal controls over financial reporting pursuant
to Section 404. We could be an “emerging growth company” for up to five years. An independent assessment of the effectiveness
of our internal controls could detect problems that our management’s assessment might not. Undetected material weaknesses in our
internal controls could lead to financial statement restatements and require us to incur the expense of remediation.
ITEM
4. INFORMATION ON THE COMPANY
A.
History and Development of the Company
Our
legal and commercial name is Sol-Gel Technologies Ltd. Our company was incorporated on October 28, 1997 and was registered as a
private company limited by shares under the laws of the State of Israel. Our principal executive offices are located at 7 Golda Meir
St., Weizmann Science Park, Ness Ziona, 7403650 Israel and our telephone number is 972-8-931 3433. Our website address is http://www.sol-gel.com.
The information contained therein, or that can be accessed therefrom, does not constitute a part of this annual report and is not incorporated
by reference herein. We have included our website address in this annual report solely for informational purposes. Our agent for service
of process in the United States is Cogency Global Inc., located at 10 E. 40th
Street, 10th Floor, New York, NY 10016, and its telephone
number is +1 (800) 221-0102.
In
February 2018 we completed our initial public offering on The Nasdaq Global Market, pursuant to which we issued 7,187,500 Ordinary Shares
for aggregate gross proceeds of approximately $86.25 million before deducting underwriting discounts and commissions and offering expenses
payable by us, including the full exercise by the underwriters of their option to purchase additional shares. Our Ordinary Shares are
traded on The Nasdaq Global Market under the symbol "SLGL".
Our
capital expenditures for the years ended December 31, 2019, 2020 and 2021 were approximately $597, $449 and $143, respectively. Our current
capital expenditures involve equipment and leasehold improvements.
B.
Business Overview
We
are a dermatology company focused on identifying, developing and commercializing investigational and generic topical drug products for
the treatment of skin diseases. In addition to Twyneo®,
which has been approved by the FDA, our current product candidate pipeline consists of clinical stage and early-stage investigational
product candidates, some of which leverage our development platform, and several generic product candidates across multiple indications.
Our
FDA-approved product, Twyneo®, is a novel, once-daily,
non-antibiotic topical cream containing a fixed-dose combination of encapsulated benzoyl peroxide and encapsulated tretinoin, that we
developed for the treatment of acne vulgaris, or acne.
On
December 30, 2019, we announced top-line results from two pivotal Phase 3 clinical trials evaluating Twyneo® for the treatment
of acne. Twyneo® met all co-primary endpoints in both Phase 3 trials. The Phase 3 program enrolled an aggregate of 858 patients
aged nine and older in two multicenter, randomized, double-blind, parallel group, vehicle-controlled trials at 63 sites across the United
States. Twyneo® demonstrated statistically significant improvement in each of the co-primary endpoints of (1) the proportion
of patients who succeeded in achieving at least a two grade reduction from baseline and Clear (grade 0) or Almost Clear (grade 1) at Week
12 on a 5-point Investigator Global Assessment (IGA) scale, (2) an absolute change from baseline in inflammatory lesion count at Week
12, and (3) and an absolute change from baseline in non-inflammatory lesion count at Week 12. In addition, Twyneo® was found
to be well-tolerated.
55
Our
investigational product candidate, Epsolay®, is a
novel, once-daily investigational topical cream containing encapsulated benzoyl peroxide, that we are developing for the treatment of
papulopustular (subtype II) rosacea. On July 8, 2019, we announced positive top-line results from our Phase 3 program evaluating
Epsolay®. The program enrolled 733 patients aged 18 and older in two identical, double-blind, vehicle-controlled Phase
3 clinical trials at 54 sites across the United States. Epsolay® demonstrated statistically significant improvement in both co-primary
endpoints of (1) the number of patients achieving “clear” or “almost clear” in the Investigator Global Assessment
(IGA) relative to baseline at week 12 and (2) absolute mean reduction from baseline in inflammatory lesion count at week 12. In an additional
analysis, Epsolay® demonstrated rapid efficacy, achieving statistically significant improvements on both co-primary endpoints compared
with vehicle as early as Week 2. In addition, Epsolay® was found to be well- tolerated. Our NDA for Epsolay® was accepted for
filing by the FDA, which originally assigned a PDUFA goal date of April 26, 2021, which has since been delayed due to COVID-19 related
travel restrictions. The FDA conducted a pre-approval inspection of the production site for Epsolay® during the week of February
14, 2022.
In
June 2021, we entered into two five-year exclusive license agreements with Galderma pursuant to which Galderma has the exclusive
right to, and is responsible for, all U.S. commercial activities for Twyneo®, and, if approved by the FDA, Epsolay®.
Other
investigational product candidates are SGT-210 that we are developing for the treatment of various keratodermas; SGT-310, an investigational
aryl hydrocarbon receptor agonist; and SGT-510.
We
designed our proprietary, silica-based microencapsulation technology platform to enhance the tolerability and stability of topical drugs
while maintaining their efficacy. Topical drugs often struggle to balance achieving both high efficacy and high tolerability. Our technology
platform entraps active ingredients in an inert, inorganic silica shell, which creates an unnoticeable barrier between the active ingredient
and the skin. The resulting microcapsules are designed to allow the entrapped active ingredients to gradually migrate through the pores
of the shell and deliver active ingredient doses onto the skin in a controlled manner, resulting in improved tolerability and stability
without sacrificing efficacy. By separately encapsulating active ingredients within protective silica shells, our technology platform
also enables the production of novel fixed-dose active ingredient combinations that otherwise would not be stable. We believe that our
microencapsulation technology has the potential to be used for topical drug products to treat a variety of skin diseases. As a result
of the FDA having already approved silica as a safe excipient for topical drug products, both Twyneo® and Epsolay® were submitted
for approval through the FDA’s 505(b)(2) regulatory pathway.
In
November 2021, we announced that we had signed an agreement with Padagis, pursuant to which we sold our rights related to 10 generic collaborative
programs and retained the collaboration rights to two generic programs related to four generic drug candidates for skin diseases. Under
the terms of the agreement with Padagis, effective as of November 1, 2021, we are to unconditionally receive $21.5 million over 24 months,
in lieu of our share in ten generic programs, two of which were approved by the FDA, and eight of which were unapproved.
Twyneo®,
a novel, once-daily, non-antibiotic topical cream, developed for the treatment of acne, containing a fixed-dose combination of encapsulated
benzoyl peroxide, or E-BPO, and encapsulated tretinoin. Acne is one of the three most prevalent skin diseases in the world and is the
most commonly treated skin disease in the United States. According to the American Academy of Dermatology, acne affects approximately
40 to 50 million people in the United States, of which approximately 10% are treated with prescription medications. Tretinoin and benzoyl
peroxide, the two active components in Twyneo®, are
both widely-used therapies for the treatment of acne that historically have not been conveniently co-administered due to stability concerns.
On December 30, 2019, we announced top-line results from two pivotal Phase 3 clinical trials evaluating Twyneo®
for the treatment of acne. Twyneo® met all co-primary
endpoints in both Phase 3 trials. The Phase 3 program enrolled an aggregate of 858 patients aged nine and older in two multicenter,
randomized, double-blind, parallel group, vehicle-controlled trials at 63 sites across the United States. Twyneo®
demonstrated statistically significant improvement in each of the co-primary endpoints of (1) the proportion of patients who succeeded
in achieving at least a two grade reduction from baseline and Clear (grade 0) or Almost Clear (grade 1) at Week 12 on a 5-point Investigator
Global Assessment (IGA) scale, (2) an absolute change from baseline in inflammatory lesion count at Week 12, and (3) and an absolute change
from baseline in non-inflammatory lesion count at Week 12. In addition, Twyneo®
was found to be well-tolerated. Twyneo® was
approved for marketing by the FDA in July 2021.
56
Our
leading investigational product candidate, Epsolay®, is a topical cream containing 5% encapsulated benzoyl peroxide, which we are
developing for the treatment of papulopustular (subtype II) rosacea. Rosacea is a chronic skin disease characterized by facial redness,
inflammatory lesions, burning and stinging. According to the U.S. National Rosacea Society, approximately 16 million people in the United
States are affected by rosacea. According to a study we commissioned in 2017, approximately 4.8 million people in the United States experience
subtype II symptoms. Subtype II rosacea is characterized by small, dome-shaped erythematous papules, tiny surmounting pustules on the
central aspects of the face, solid facial erythema and edema, and thickening/overgrowth of skin. Subtype II rosacea resembles acne, except
that comedowns are absent, and patients may report associated burning and stinging sensations. Current topical therapies for subtype II
rosacea are limited due to tolerability concerns. For example, BPO, a common therapy for acne, is not used for the treatment of subtype
II rosacea due to side effects. As encapsulated BPO, Epsolay® is designed to redefine the standard of care for the treatment of subtype
II rosacea. If approved by the FDA, we expect Epsolay® to be the first product containing BPO that is marketed for the treatment
of subtype II rosacea. On July 8, 2019, we announced positive top-line results from our Phase 3 program evaluating Epsolay®.
The program enrolled 733 patients aged 18 and older in two identical, double-blind, vehicle-controlled Phase 3 clinical trials at
54 sites across the United States. Epsolay® demonstrated
statistically significant improvement in both co-primary endpoints of (1) the number of patients achieving “clear” or “almost
clear” in the Investigator Global Assessment (IGA) relative to baseline at week 12 and (2) absolute mean reduction from baseline
in inflammatory lesion count at week 12. In an additional analysis, Epsolay®
demonstrated rapid efficacy, achieving statistically significant improvements on both co-primary endpoints compared with vehicle as early
as Week 2. In addition, Epsolay® was found to be well-tolerated. On February 12, 2020, we announced positive topline results from
our open-label, long-term safety study, evaluating Epsolay® for a treatment duration up to 52 weeks. Our NDA for Epsolay®
has been accepted for filing by the FDA, which originally assigned a PDUFA goal date of April 26, 2021, which has since been delayed due
to COVID-19 related travel restrictions. The FDA conducted a pre-approval inspection of the production site for Epsolay® during the
week of February 14, 2022.
We maintain exclusive, worldwide commercial rights for our other investigational product candidates, which
consist of:
| • |
SGT-210 that we are developing for the treatment of various keratoderma, such as PC, PPK, etc. a group
of skin conditions characterized by thickening of the skin. SGT-210 is designed to be used alone or in combination for the treatment of
hyperproliferation and hyperkeratinization disorders, including PPK. On January 2, 2020, we announced the initiation of a Phase 1
clinical study of SGT-210 in patients with palmoplantar keratoderma. The Phase 1 study SGT-84-01 is a single-center, single-blinded, vehicle-controlled
study designed to evaluate the bioavailability, safety and tolerability of SGT-210 as well as inform on potential efficacy. During
the third quarter of 2021, we reported that the study with respect to six (6) palmoplantar keratoderma (PPK) patients has been completed
and indicated modest improvement and a favorable safety profile. |
| • |
We are conducting pre-clinical testing to explore the possible activity of SGT-210, SGT-310 and SGT-510
in various new pharmaceutical indications. A total of 25 provisional patent applications for these investigational drug candidates have
been submitted to date, including patent applications covering the use of tapinarof in ophthalmic disorders such as dry eye, uveitis,
and blepharitis with or without demodex involvement. |
We are also currently developing a portfolio of two generic programs related to four generic drug candidates
in collaboration with Padagis, by assignment from Perrigo.
57
In
June 2021, we entered into two exclusive license agreements with Galderma, each for a period of five years following Galderma’s
first commercial sale of the applicable product in the U.S., pursuant to which Galderma has the exclusive right to, and is responsible
for, all U.S. commercial activities for Twyneo®, and, if approved by the FDA, Epsolay®, including promotion and distribution,
and we are responsible for obtaining all regulatory approvals of the products until approval in the U.S. Following approval, Galderma
will assume responsibility for all filings and communications with regulatory authorities in the U.S. until expiration of the applicable
license agreement. In connection with the licenses, we and Galderma have entered into a three party supply agreement with Douglas Manufacturing
Limited, which will supply Galderma the Twyneo® product, and Galderma is responsible for entering into a supply agreement with a
third party for the supply of the Epsolay® product, once approved. In consideration for the grant of such rights, we are entitled
to of up to $11 million in upfront payments to us and regulatory approval milestone payments. We are also eligible to receive tiered double-digit
royalties ranging from mid-teen to high-teen percentage of net sales as well as up to $9 million in sales milestone payments.
The
following chart represents our current investigational and generic product candidate pipeline:
Our
Approved Product and Investigational Product Candidates
Twyneo®
for Acne
Using
our proprietary, silica-based microencapsulation technology platform, we developed Twyneo®
to become a preferred treatment for acne by dermatologists and their patients.
Twyneo®
is a novel, once-daily, non-antibiotic topical cream containing a fixed-dose combination of encapsulated benzoyl peroxide and encapsulated
tretinoin that we developed for the treatment of acne. Studies have shown that benzoyl peroxide and tretinoin are effective in treating
acne as monotherapies; moreover, according to an article in the American Academy of Dermatology (2009), dermatologists recommend
combining the two monotherapies as a first-line approach for acne, but a drug-drug interaction that causes the degradation of tretinoin
has previously prohibited the development of a combination therapy. By encapsulating the two agents separately through the use of our
technology platform, Twyneo® is designed to be a
fixed-dose combination that otherwise would not be stable. Similar to other combination drug products, such as clindamycin and benzoyl
peroxide, Twyneo® is required to be kept refrigerated
throughout the supply chain and then stored in ambient conditions upon its distribution to patients. Pre-clinical data suggests that Twyneo®
may be more tolerable than generic tretinoin gel 0.1% and Epiduo, a branded fixed-dose combination of benzoyl peroxide and adapalene,
without a corresponding loss in efficacy. In addition, Epiduo and its successor Epiduo Forte contain adapalene as opposed to tretinoin,
which is widely considered to be more effective than adapalene, but generally causes greater irritation. We expect that Twyneo® will
compete directly with Winlevi, Aklief, Epiduo and Epiduo Forte. We have utilized the FDA’s 505(b)(2) regulatory pathway in seeking
approval of Twyneo® in the United States.
58
On
December 30, 2019, we announced top-line results from two pivotal Phase 3 clinical trials evaluating Twyneo®
for the treatment of acne. Twyneo® met all co-primary
endpoints in both Phase 3 trials. The Phase 3 program enrolled an aggregate of 858 patients aged nine and older in two multicenter,
randomized, double-blind, parallel group, vehicle-controlled trials at 63 sites across the United States. Twyneo®
demonstrated statistically significant improvement in each of the co-primary endpoints of (1) the proportion of patients who succeeded
in achieving at least a two grade reduction from baseline and Clear (grade 0) or Almost Clear (grade 1) at Week 12 on a 5-point Investigator
Global Assessment (IGA) scale, (2) an absolute change from baseline in inflammatory lesion count at Week 12, and (3) and an absolute change
from baseline in non-inflammatory lesion count at Week 12. Twyneo®
was approved for marketing by the FDA in July 2021.
Acne
Market Opportunity
Acne
is a disease characterized by areas of scaly red skin, non-inflammatory blackheads and whiteheads, inflammatory lesions, papules and pustules
and occasionally boils and scarring that occur on the face, neck, chest, back, shoulders and upper arms. The development of acne lesions
is caused by genetic and environmental factors that arise from the interplay of the following pathogenic factors:
| • |
blockage of hair follicles through abnormal keratinization in the follicle, which narrows pores;
|
| • |
increase in oils, or sebum production, secreted by the sebaceous gland; |
| • |
overgrowth of naturally occurring bacteria caused by the colonization by the anaerobic lipohilic bacterium
Propionibacterium acnes, or P. acnes; |
| • |
inflammatory response due to relapse of pro-inflammatory mediators into the skin. |
Due
to the frequency of recurrence and relapse, acne is characterized as a chronic inflammatory disease, which may require treatment over
a prolonged period of time. Acne is one of the three most prevalent skin diseases in the world and is the most commonly treated skin disease
in the United States. According to the American Academy of Dermatology, acne affects approximately 40 to 50 million people in the United
States and approximately 85% of people between the ages of 12 and 24 experience some form of acne. Acne patients suffer from the appearance
of lesions on areas of the body with a large concentration of oil glands, such as the face, chest, neck and back. These lesions can be
inflamed (papules, pustules, nodules) or non-inflamed (comedones). Early effective treatment is recommended to lessen the overall long-term
impact. For most people, acne diminishes over time and tends to disappear, or at least to decrease, by the age of 25. There is, however,
no way to predict how long it will take for symptoms to disappear entirely, and some individuals continue to suffer from acne well into
adulthood.
Current
Treatment Landscape for Acne
The
treatment options for acne depend on the severity of the disease and consist of topical and oral drugs:
| • |
Mild
acne: characterized by few papules or pustules (both comedonal and inflammatory);
treated with an over-the-counter product or topical prescription therapies. |
| • |
Moderate
acne: characterized by multiple papules and pustules with moderate inflammation
and seborrhea (scaly red skin); treated with a combination of oral antibiotics and topical therapies. |
59
| • |
Severe
acne: characterized by substantial papulopustular disease, many nodules
and/or cysts and significant inflammation and seborrhea; treated with oral and topical combination therapies and photodynamic therapy
as a third-line treatment. |
Topical therapies dominate
the acne market as physicians and patients often prefer therapies that act locally on the skin, while minimizing side effects. For more
pronounced symptoms, patients are typically treated with a combination of topical and oral therapies.
The
acne prescription treatment landscape is comprised of four classes of topical products and two classes of oral products:
| • |
Topical
over-the-counter monotherapies such as adapalene 0.1%, benzoyl peroxide
and salicylic acid, in different concentrations, are the most commonly used therapies. These are generally tolerable first-line treatments
for mild acne, but less efficacious than prescription therapies. |
| • |
Topical
prescription antibiotic monotherapies such as clindamycin and erythromycin
that are most commonly used as topical therapies in cases of mild-to-moderate acne. |
| • |
Topical
prescription retinoid monotherapies such as tretinoin, adapalene 0.3% and
tazarotene. Physicians view retinoids as moderately efficacious, but they have high rates of skin irritation. |
| • |
Topical
prescription combination products such as combinations of BPO/adapalene,
BPO/clindamycin, BPO/erythromycin and clindamycin/tretinoin. These target multiple components that contribute to the development of acne,
though topical side effects are common. |
| • |
Oral
prescription antibiotics such as doxycycline and minocycline. These are
typically used as step-up treatments for more severe cases of acne, with risk of systemic side effects. |
| • |
Oral
prescription isotretinoin, which is primarily used for severe cystic acne
and acne that has not responded to other treatments. The use of oral prescription isotretinoin is tightly controlled due to tolerability
issues. |
Twyneo®
Phase 3 Trial Design
The
pivotal Phase 3 clinical program evaluating the safety and efficacy of Twyneo®
in subjects with acne vulgaris enrolled an aggregate of 858 patients aged nine and older, with moderate-to-severe acne in two multicenter,
randomized, double-blind, parallel group, vehicle-controlled trials at 63 sites across the United States. Patients were randomized at
a 2:1 ratio to be treated once-daily with either Twyneo® (n=571) or vehicle cream (n=287) for 12 weeks.
The
primary and secondary efficacy endpoints were assessed at the end of the 12-week treatment period. Three primary efficacy endpoints were
defined for this trial:
| • |
the proportion of subjects who achieve at least a two-grade reduction in the IGA score and either “clear”
or “almost clear” at week 12; |
| • |
the mean absolute change from baseline in the number of inflammatory acne lesions at week 12; and
|
| • |
the mean absolute change from baseline in the number of non-inflammatory acne lesions at week 12.
|
60
Twyneo®
Phase 3 Trial Results
As
outlined below Twyneo® met all co-primary endpoints in both Phase 3 trials. Twyneo® demonstrated statistically significant
improvement in each of the co-primary endpoints described above.
In
trial SGT-65-04, 39.9% of patients treated with Twyneo® achieved success in IGA versus 14.3% in the vehicle treated group (P<0.001)
at week 12. In trial SGT-65-05, 26.8% of patients treated with Twyneo® achieved success in IGA versus 15.1% in the vehicle group
(P=0.017) at week 12. In trial SGT-65-04, the absolute mean change from baseline of inflammatory lesion count for Twyneo® was
-21.6 versus -14.8 for the vehicle group (P<0.001) at week 12. In trial SGT-65-05, the absolute change from baseline of inflammatory
lesion count for Twyneo® was -16.2 versus -14.1 for the vehicle group (P=0.021) at week 12. In trial SGT-65-04, the absolute
mean change from baseline of non-inflammatory lesion count for Twyneo® was -29.7 versus -19.8 for the vehicle group (P<0.001).
In trial SGT-65-05, the absolute mean change from baseline of non-inflammatory lesion count for Twyneo was -24.2 versus -17.4 for the
vehicle group (P<0.001) at week 12.
In
both trials, Twyneo® appeared to be generally safe and well-tolerated and the majority of local skin reactions, when reported, were
mild or moderate and improved over time. A total of 18 subjects discontinued treatment in both trials due to treatment emergent adverse
events. There were no treatment-related serious adverse events and four unrelated serious adverse events (one Twyneo® (depression),
three vehicle) were reported across both trials.
The
following chart presents the proportion of subjects in the ITT population in studies SGT 65-04 and SGT 65-05 who achieved a successful
improvement in the severity of their disease at week 12, as assessed using the IGA:
61
The
following chart presents the absolute mean change from baseline in the number of inflammatory acne lesions at week 12:
62
The
following chart presents the absolute mean change from baseline in the number of non-inflammatory acne lesions at week 12:
We
also assessed cutaneous tolerability by recording the erythema (redness), scaling, pigmentation, dryness, itching, burning and stinging
on a four-point scale from 0 to 3 at baseline and at each visit. These measurements are either measured by the physician or reported by
the subject. Overall, Twyneo® was generally
well tolerated. The majority of cutaneous adverse events were mild.
Out
of the 858 subjects who enrolled in both studies, 754 subjects were included in the safety population, and a combined total of 16 subjects
discontinued treatment due to an adverse event across both trials. The most common reasons for subjects not completing the study in both
groups (active and vehicle) were the withdrawal of informed consent (41 subjects, 4.8%), and loss to follow-up (39 subjects, 4.5%).
Epsolay®
for Subtype II Rosacea
Epsolay®
Overview
Epsolay®
is a once-daily investigational topical cream containing 5% encapsulated benzoyl peroxide that we have developed for the treatment
of papulopustular (subtype II) rosacea. We believe Epsolay® has the potential to become the first product to contain encapsulated
benzoyl peroxide for the treatment of subtype II rosacea and, if approved by the FDA, has the potential to redefine the standard of care
for the treatment of inflammatory lesions associated with subtype II rosacea. Subtype II rosacea is characterized by small, dome-shaped
erythematous papules, tiny surmounting pustules on the central aspects of the face, solid facial erythema and edema, and thickening/overgrowth
of skin. Subtype II rosacea resembles acne, except that comedones are absent, and patients may report associated burning and stinging
sensations. We expect that Epsolay®, if approved by the FDA, will compete directly with Soolantra. We utilized the FDA’s
505(b)(2) regulatory pathway in seeking approval of Epsolay® in the United States. On
July 8, 2019, we announced positive top-line results from our Phase 3 program evaluating Epsolay®. The program enrolled 733
patients aged 18 and older in two identical, double-blind, vehicle-controlled Phase 3 clinical trials at 54 sites across the United States.
Epsolay® demonstrated statistically significant improvement in both co-primary endpoints of (1) the number of patients achieving
“clear” or “almost clear” in the Investigator Global Assessment (IGA) relative to baseline at week 12 and (2)
absolute mean reduction from baseline in inflammatory lesion count at week 12. In an additional analysis, Epsolay® demonstrated rapid
efficacy, achieving statistically significant improvements on both co-primary endpoints compared with vehicle as early as Week 2. In addition,
Epsolay® was found to be well- tolerated. On February 12, 2020, we announced positive topline results from our open-label, long-term
safety study, evaluating Epsolay® for a treatment duration up to 52 weeks. Our NDA for Epsolay®
has been accepted for filing by the FDA, which originally assigned a PDUFA goal date of April 26, 2021, which has since been delayed due
to COVID-19 related travel restrictions. The FDA conducted a pre-approval inspection of the production site for Epsolay® during the
week of February 14, 2022.
63
Current
Treatment Landscape for Subtype II Rosacea
As
there is no cure for rosacea, treatment is largely focused on managing the disease. We believe that a significant market opportunity exists
for a subtype II rosacea treatment option that can provide both efficacy and higher tolerability than existing treatments. There are currently
five approved drugs for the treatment of subtype II rosacea: Soolantra, Metrogel, Oracea, Zilixi and generic metronidazole. In certain
cases, dermatologists often prescribe oral antibiotics either as monotherapies or in conjunction with approved medications.
Our
Solution for Subtype II Rosacea — Epsolay®
Benzoyl
peroxide is approved by the FDA for the treatment of acne and is widely considered to be safe and effective. Currently, there is no approved
benzoyl peroxide product in the rosacea treatment landscape as a result of potential tolerability issues, despite clinical studies showing
that treatment with benzoyl peroxide could be efficacious. According to a published study, benzoyl peroxide was found to be an effective
treatment for rosacea but caused irritation. Using our proprietary, silica-based microencapsulation technology platform, we believe our
Epsolay® candidate for the treatment of papulopustular (subtype II) rosacea can improve on current subtype II rosacea treatments
in the following ways:
| • |
Epsolay® creates a silica-based barrier between benzoyl peroxide crystals and the skin and, as a
result, can reduce irritation typically associated with topical application of benzoyl peroxide, increasing the potential for more tolerable
application to rosacea-affected skin. |
| • |
Epsolay®'s release of the drug can reduce irritation while maintaining efficacy. |
Epsolay®
is an innovative topical cream, and if approved by the FDA, would be the first product containing benzoyl peroxide for the treatment of
subtype II rosacea.
Epsolay® Phase
3 Trial Design
In
June 2018, we announced dosing of the first subject in our pivotal Phase 3 clinical program of Epsolay® in subjects with papulopustular
rosacea. The program enrolled 733 patients aged 18 and older in two identical, double-blind, vehicle-controlled Phase 3 clinical
trials at 54 sites across the United States. Patients were randomized at a 2:1 ratio to be treated once-daily with either Epsolay (n=493)
or vehicle cream (n=240) for 12 weeks. After the initiation of treatment, clinical and safety evaluations were performed at Weeks 2, 4,
6, 8 and 12.
The
primary efficacy endpoints for both trials were success in the IGA defined as two-grade reduction in IGA on a stage of 0 to 4 with a “clear”
(0) or “almost clear” (1) at week 12, and a reduction in mean inflammatory lesion count at week 12.
Epsolay®
Phase 3 Trial Results
As
outlined below, Epsolay demonstrated statistically significant improvement in both co-primary endpoints of (1) the number of patients
achieving “clear” or “almost clear” in the IGA relative to baseline at week 12 and (2) absolute mean reduction
from baseline in inflammatory lesion count at week 12. In an additional analysis, Epsolay® demonstrated rapid efficacy, achieving
statistically significant improvements on both co-primary endpoints compared with vehicle as early as Week 2. Epsolay® demonstrated
a favorable safety and tolerability profile similar to vehicle.
64
In
study SGT 54-01, patients in the Epsolay® and vehicle treatment groups had a baseline mean inflammatory lesion count of 25.7 and
26.3, respectively. The proportion of patients with “moderate” (3) or “severe” (4) IGA in the Epsolay® treatment
group was 86.4% and 13.6%, respectively, and 88.1% and 11.9%, respectively, in the vehicle treatment group. In study SGT 54-02,
patients in Epsolay® and vehicle treatment groups had a baseline mean inflammatory lesion count of 29.8 and 27.5, respectively. The
proportion of patients with “moderate” (3) or “severe” (4) IGA in the Epsolay treatment group was 90.8% and 9.2%,
respectively, and 91.8% and 8.2%, respectively, in the vehicle treatment group.
As
outlined below, Epsolay® met all co-primary endpoints in both Phase 3 trials. Epsolay® demonstrated statistically
significant improvement in each of the co-primary endpoints described above.
In
study SGT 54-01, 43.5% of patients treated with Epsolay achieved success in IGA versus 16.1% in the vehicle treated group (P<0.001)
at week 12. In Study 54-02, 50.1% of patients treated with Epsolay® achieved success in IGA versus 25.9% in the vehicle group
(P<0.001) at week 12. In study SGT 54-01, the absolute change from baseline of inflammatory lesion count for Epsolay was
-17.4 versus -9.5 for the vehicle group (P<0.001) at week 12. In study SGT 54-02, the absolute change from baseline of inflammatory
lesion count for Epsolay was -20.3 versus -13.3 for the vehicle group (P<0.001) at week 12.
The
following chart presents the proportion of subjects in the ITT population in studies SGT 54-01 and SGT 54-02 who achieved a successful
improvement in the severity of their disease at week 12, as assessed using the IGA:
65
The
following chart presents the absolute change from baseline in the number of inflammatory acne lesions at week 12:
The
following chart presents the percent change from baseline in the number of inflammatory acne lesions at week 12:
In
both studies, Epsolay® demonstrated a favorable safety and tolerability profile similar
to vehicle, with a low rate of cutaneous side effects (e.g., dryness, scaling, itching and burning/stinging) comparable to vehicle. Adverse
events were primarily mild to moderate in severity with the most frequently reported adverse events across both studies being application
site erythema and application site pain reported by less than 3.4% of subjects. There were no treatment-related serious adverse events,
with a combined total of two unrelated serious adverse events (1 Epsolay®, 1 vehicle) reported across both trials.
Out
of the 733 subjects who enrolled in both studies, 721 subjects were included in the safety population, and a combined total of 10 subjects
(9 Epsolay®, 1 vehicle) discontinued treatment due to an adverse event across both trials. The most common reasons for subjects not
completing the study in both groups (active and vehicle) were the withdrawal of informed consent (25 subjects, 3.4%), and loss to follow-up
(17 subjects, 2.3%).
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Long-Term
Safety Study Results for Epsolay®
On
February 12, 2020, we announced positive topline results from our open-label, long-term safety study, SGT -54-07, evaluating Epsolay®
for a treatment duration up to 52 weeks. The study enrolled 547 subjects, all of whom had completed 12 weeks of treatment with Epsolay®
or vehicle in the preceding double-blind Phase 3 studies. Patients continued onto open-label treatment with Epsolay® once-daily for
up to an additional 40 weeks. The safety population of 535 subjects received Epsolay® therapy for an overall period of at least 28
weeks. Of these 535 subjects, 209 subjects completed 52 weeks of treatment with Epsolay, exceeding the sample size requirements previously
defined by the FDA for the Epsolay® one-year safety evaluation.
Non-cutaneous
adverse events were similar in frequency and type to those observed in the preceding Phase 3 trials. The most common adverse event reported
was nasopharyngitis (5.4%). Less than 3% of patients experienced application site adverse events that were considered to be drug-related,
and no serious drug-related adverse events were reported.
At
every study visit, the investigator conducted Local Tolerability and Cutaneous Safety Assessments. At the end of 52 weeks more than 90%
of subjects had “none” or “mild” signs or symptoms (burning or stinging, itching, dryness and scaling) and no
“severe” tolerability scores were recorded.
Although
the study was designed to evaluate long-term safety, subjects also continued to undergo evaluation according to the Investigator Global
Assessment (IGA) 5-point scale. Of the 209 patients treated with Epsolay for 52 weeks, 73.2% reported an IGA score of 0 ("clear") or 1
("almost clear") at 52 weeks.
SGT-210
for Keratodermas
SGT-210
that we are developing for the treatment of keratoderma, such as PPK, a group of skin conditions characterized by thickening of the skin.
SGT-210 is designed to be used alone or in combination for the treatment of hyperproliferation and hyperkeratinization disorders, including
PPK. On January 2, 2020, we announced the initiation of a Phase 1 clinical study of SGT-210 in patients with palmoplantar keratoderma.
The Phase 1 concept study SGT-84-01 is a single-center, single-blinded, vehicle-controlled study designed to evaluate the bioavailability,
safety and tolerability of SGT-210 as well as inform on potential efficacy. During the third quarter of 2021, we reported that the study
with respect to six (6) palmoplantar keratoderma (PPK) patients has been completed and indicated modest improvement and a favorable safety
profile
SGT-210,
SGT-310 and SGT-510 potentially for psoriasis and other medical conditions
We
are conducting pre-clinical testing to explore the possible activity of SGT-210, SGT-310, and SGT-510 in various new pharmaceutical indications.
Approximately 25 provisional patent applications for these project candidates have been submitted to date, including patent applications
covering the use of tapinarof in ophthalmic disorders such as dry eye, uveitis, and blepharitis with or without demodex involvement.
Generic
Drug Product Candidates
In
addition to our investigational product candidates, we are also currently developing a portfolio of two generic topical dermatological
related to four generic drug candidates in collaboration with Padagis by assignment from Perrigo. Padagis has significant experience in
the development of generic drugs.
We
previously had collaboration arrangements with Perrigo to develop a portfolio of 11 generic topical dermatological products. In November
2021, we announced that we had signed an agreement with Padagis, pursuant to which we sold our rights related to 10 generic collaborative
agreements between the parties. Under the terms of this agreement with Padagis, effective as of November 1, 2021, we are to unconditionally
receive $21.5 million over 24 months, in lieu of our share in the ten generic programs, two of which were approved by the FDA, and eight
of which are unapproved. Pursuant to the agreement, effective as of November 1, 2021, we ceased paying any outstanding and future
operational costs related to these 10 collaborative agreements.
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We
currently have two collaboration agreements with Padagis for the development, manufacturing and commercialization of two generic product
candidates. Under such agreements, Padagis will conduct the regulatory (if relevant), scientific, clinical and technical activities
necessary to develop the generic product candidates and seek regulatory approval with the FDA for the generic product candidates. If approved
by the FDA, Padagis has agreed to commercialize the generic product candidates in the United States. We and Padagis will share the
development costs and the gross profits generated from the sales of the generic product candidates, if approved by the FDA.
Our
Proprietary Silica-Based Microencapsulation Technology Platform
Encapsulation
of a drug substance can be made using a variety of techniques, such as solvent evaporation, coacervation, and interfacial polymerization.
Most encapsulations involve organic polymers, such as poly-methyl methacrylate, chitosan and cellulose. The resultant encapsulated drug
substance can be an aqueous dispersion of varying payload and volume fraction or a dried powder. Control over the encapsulation process
when organic polymers are used is challenging and is mainly limited to shell thickness. Other properties of the organic polymer encapsulating
material are hard to control.
In
contrast, we use proprietary ‘sol-gel’ processes to shape silica on site to form microcapsule shells of almost any size and
release profile. Sol-gel is a chemical process whereby amorphous silica, or other metal oxides, are made by forming interconnections among
colloidal particles (the “sol”) under increasing viscosity until a rigid silica shell (the “gel”) is formed. The
drug substance that is added during the sol-gel reaction is encapsulated, using a patented technique, by which a core-shell structure
is formed. The drug substance is in the core and the silica is the capsule shell. At the end of the process, the microcapsules are in
the shape of small beads ranging from 1 – 50 micron in size. This process results in an aqueous suspension in which
the drug substances are entrapped in silica particles.
Intellectual
Property
Our
intellectual property and proprietary technology are directed to the development, manufacture and sale of Twyneo®, Epsolay®
and our other investigational product candidates, SGT-210, SGT-310, SGT-510 . We seek to protect our intellectual property, core technologies
and other know-how, through a combination of patents, trademarks, trade secrets, non-disclosure and confidentiality agreements, assignments
of invention and other contractual arrangements with our employees, consultants, partners, suppliers, customers and others.
We
will be able to protect our technology from unauthorized use by third parties only to the extent it is covered by valid and enforceable
patents or is effectively maintained as trade secrets. Patents and other proprietary rights are an essential element of our business.
If any of the below described applications are not approved, or any of the below described patents are invalidated, deemed unenforceable
or otherwise successfully challenged, such loss would have a material effect on the commercialization of our Investigational product candidates
and our future prospects.
Our
patent portfolio that is directed to Twyneo® Epsolay® and our other investigational product candidates includes 144 patents
and patent applications and claims processes for manufacture (including silica microencapsulation platform and other technologies), formulations,
composition of matter, and methods of use. Of these 144 patents and patent applications, 78 are granted patents (11 in the United States
and 67 in other countries) and 66 are pending applications (32 in the United States and 34 in other countries).
For
Twyneo®, we have obtained patent protection for the
composition of matter in the United States, Canada, Japan, Mexico (with a term until 2028) and we have an allowed application claiming
composition of matter in the European Patent Office. There are four patent families protecting the process for the encapsulation of the
active agents of our Twyneo® product (one patent
family has patents granted in Canada, India, Mexico, Europe (validated in France, Germany, Ireland, Italy, Spain, Switzerland and the
United Kingdom) and Japan (with a term until 2028) and applications pending in the United States; the second patent family has patents
granted in Mexico, Canada and the United States (with a term until 2029) and an application pending in the United States; the third patent
family has patents granted in Europe (validated in France, Germany, Ireland, Italy, Spain, Switzerland and the United Kingdom), China,
India, Japan, Canada, Mexico and the United States (with a term until 2030) and applications pending in the United States); and the fourth
patent family has patents granted in Canada, China, Israel, India, Mexico and the United States). We own pending patents for the formulation
of our Twyneo® product in the United States (with
a term until 2032), and patents granted in China, Japan, Canada, Mexico and Europe (validated in France, Germany, Ireland, Italy, Spain,
Switzerland, United Kingdom) (with a term until 2032). We have pending patent applications in the United States for the composition of
our Twyneo® product and one patent granted in the
United States for the method of treatment of Twyneo® (with a term until 2038). We have five trademarks registered for our Twyneo®
product in Israel, Europe, the United States and Canada.
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For
Epsolay®, we have obtained patents in China, Canada, Japan, Europe, Mexico and the United States (with a term until 2032) covering
the composition for topical treatment of rosacea. We have further pending applications for this composition in the United States. There
are two patent families directed to the process for encapsulation of the active agents of Epsolay® (one patent family has granted
patents in Canada, India, Mexico, Europe (validated in France, Germany, Ireland, Italy, Spain, Switzerland and the United Kingdom) and
Japan (with a term until 2028) and pending applications in the United States; and the second patent family has patents granted in Canada,
China, Israel, India, Mexico and the United States). We also have 2 granted patents in the United States (with a term until 2040) and
14 patent applications pending covering the methods of use of Epsolay® for the treatment of rosacea.
We
have one published international application and 3 pending applications in the United States covering the compositions of Epsolay®
and Twyneo®, the processes for the encapsulation
of the active agents of our Epsolay® and Twyneo®,
and the methods of use.
We
have four registered trademarks in Europe, Canada, the United States and Israel. These registrations cover potential brand names for our
Epsolay® in Israel, Europe, Canada and the United States.
For
SGT-210, we have 16 pending applications in China, Canada, Japan, Korea, Europe, Mexico and the United States, the refer to methods and
compositions of use.
For
SGT-310, we have 15 pending applications in China, Canada, Japan, Korea, Europe, Mexico and the United States, that refer to compositions
per se, compositions for use, methods of treatments, regimens and kits.
For
SGT-510, we have nine pending applications in China, Canada, Japan, Korea, Europe, Mexico and the United States, that refer to refer to
compositions per se, dosage forms, methods of treatment, and regimens.
Competition
The
pharmaceutical industry is subject to intense competition as well as rapid technological changes. Our ability to compete is based on a
variety of factors, including product efficacy, safety, cost-effectiveness, patient compliance, patent position and effective product
promotion. Competition is also based upon the ability of a company to offer a broad range of other product offerings, large direct sales
forces and long-term customer relationships with target physicians.
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There
are numerous companies that have branded or generic products or product candidates in the dermatology market. Among them are Aclaris Therapeutics,
Inc., Akorn, Inc., Almirall S.A., Aqua Pharmaceuticals LLC, Bayer HealthCare AG, Cassiopea SpA, Vyne Pharmaceuticals Ltd., Galderma
Pharma S.A., Glenmark Pharmaceuticals Ltd., G&W Laboratories, Inc., LEO Pharma A/S, Mylan N.V., Novan, Inc., Novartis AG, Novum Pharma,
LLC, Perrigo Company plc, Pfizer, Inc., Spear Therapeutics, Ltd., Sun Pharmaceutical Industries Ltd., Teligent, Inc., Teva Pharmaceutical
Industries Ltd. and Bausch Health Companies Inc.
In
order for our approved product candidates, if any, to compete successfully in the dermatology market, we will have to demonstrate that
their efficacy, safety and cost-effectiveness provide an attractive alternative to existing therapies, some of which are widely known
and accepted by physicians and patients, as well as to future new therapies. Such competition could lead to reduced market share for our
product candidates and contribute to downward pressure on the pricing of our product candidates, which could harm our business, financial
condition, operating results and prospects.
Many
of the companies, academic research institutions, governmental agencies and other organizations involved in the field of dermatology have
substantially greater financial, technical and human resources than we do, and may be better equipped to discover, develop, test and obtain
regulatory approvals for products that compete with ours. They may also be better equipped to manufacture, market and sell products. These
companies, institutions, agencies and organizations may develop and introduce products and drug delivery technologies competitive with
or superior to ours which could inhibit our market penetration efforts.
Twyneo®
and Epsolay® target the well-established acne and rosacea markets. We expect Twyneo®,
and if approved by the FDA, Epsolay®, to compete with current standard-of-care treatments, whether branded, generic or over-the-counter,
as well as with new treatments to be approved in the future. The current standard-of-care for acne includes topical anti-bacterial drugs
such as benzoyl peroxide that are broadly available over-the-counter, prescription drug products that are based on single retinoid drug
products such as Differin, Atralin, Retin-A, Retin-A Micro, Tazorac and Altreno, fixed-dose combinations of benzoyl peroxide and adapalene
such as Epiduo and Epiduo Forte, fixed-dose combinations of benzoyl peroxide and clindamycin such as Duac, Benzaclin, Onexton and Acanya,
fixed-dose combinations of tretinoin and clindamycin such as Ziana and Veltin, topical antiandrogen such as Winlevi and topical antibiotics
such as Aczone and Amzeeq. The current standard of care for rosacea includes Metrogel, Finacea, Soolantra and the recently launched Zilxi,
as well as oral Oracea (doxycycline embedded in a technology platform). As a fixed-dose combination product candidate, Twyneo® may
also compete with drug products utilizing other technologies that can separate two drug substances, such as dual chamber tubes, dual pouches
or dual sachets. In addition to these products, our generic drug product candidates are expected to face direct competition from branded
drugs and authorized generics which are prescription drugs produced by the branded pharmaceutical companies and marketed under a private
label, at generic prices.
Marketing, Sales and
Distribution
We
currently have limited sales, marketing and distribution capabilities. In June 2021, we entered into two five-year exclusive license agreements with
Galderma pursuant to which Galderma has the exclusive right to, and is responsible for, all U.S. commercial activities for Twyneo®,
and, if approved by the FDA, Epsolay®. Pursuant to the agreement, we are entitled to consideration of up to $11 million in
upfront payments to us and regulatory approval milestone payments. We are also eligible to receive tiered double-digit royalties ranging
from mid-teen to high-teen percentage of net sales as well as up to $9 million in sales milestone payments. We also expect to collaborate
with third parties that have sales and marketing experience in order to commercialize our other investigational product candidates, if
approved by the FDA for commercial sale, in lieu of our own sales force and distribution systems. If we are unable to enter into such
arrangements for our other product candidates on acceptable terms or at all, we may not be able to successfully commercialize them. In
other markets, we also expect to selectively pursue strategic collaborations with third parties in order to maximize the commercial potential
of our product candidates.
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Manufacturing
For
the supply of current good manufacturing practice-grade, or cGMP-grade and clinical trial materials we rely on and expect to continue
to rely on third-party contract manufacturing organizations, or CMOs, or on in-house manufacturing capabilities. As of August 2018, our
in-house manufacturing operations have been audited for current good manufacturing, or cGMP, compliance, and were granted a cGMP certification
by the Israel Ministry of Health. This certification allowed us to manufacture Twyneo® and its intermediates to support Phase 3 clinical
trials. This cGMP certification expired in 2020, and since no other manufacturing for Phase 3 clinical trials is planned at the Company
during 2021, the Company and the Israel Ministry of Health have mutually concluded that the cGMP certification will be reassessed and
renewed for other products as they reach relevant stages of development. ISO 14001:2015 and ISO 45001:2018certifications continue to be
maintained and are due for renewal in May 2024 and March 2021, respectively. For commercial manufacturing of our products, we intend to
rely solely on CMOs. It is our policy to have multiple or alternative sources where possible for every service and material we use in
our products.
Government
Regulation
Regulation
by governmental authorities in Israel, the United States and other countries is a significant factor in the development, manufacture and
commercialization of our product candidates and in our ongoing research and development activities. Our business is subject to extensive
government regulation in Israel for its manufacturing activities involving drug products, drug product intermediates, and drug product
active substances to be used in Phase 1 and Phase 2 clinical trials.
Product
Approval Process in the United States
Review
and approval of drugs
In
the United States, pharmaceutical products are subject to extensive regulation by the FDA. The Federal Food, Drug and Cosmetic Act, or
FDCA, and other federal and state statutes and implementing regulations govern, among other things, the research, development, testing,
manufacture, storage, recordkeeping, approval, labeling, promotion and marketing, distribution, post-approval monitoring and reporting,
sampling, and import and export of pharmaceutical products. Failure to comply with the applicable U.S. requirements at any time during
the product development process, approval process or after approval may subject an applicant to a variety of administrative or judicial
sanctions and enforcement actions brought by the FDA, the Department of Justice or other governmental entities. Possible sanctions may
include the FDA’s refusal to approve pending applications, withdrawal of an approval, imposition of a clinical hold, issuance of
warning letters or untitled letters, product recalls, product seizures, total or partial suspension of production or distribution, injunctions,
fines, refusals of government contracts, restitution, disgorgement and civil or criminal penalties.
FDA
approval of a new drug application is required before any new unapproved drug or dosage form, can be marketed in the United States. Section
505 of the FDCA describes three types of new drug applications: (1) an application that contains full reports of investigations of safety
and effectiveness (section 505(b)(1)); (2) an application that contains full reports of investigations of safety and effectiveness but
where at least some of the information required for approval comes from studies not conducted by or for the applicant and for which the
applicant has not obtained a right of reference (section 505(b)(2)); and (3) an application that contains information to show that the
proposed product is identical in active ingredient, dosage form, strength, route of administration, labeling, quality, performance characteristics,
and intended use, among other things, to a previously approved product (section 505(j)). Section 505(b)(1) and 505(b)(2) new drug applications
are referred to as NDAs, and section 505(j) applications are referred to as ANDAs.
In
general, the process required by the FDA prior to marketing and distributing a new drug, as opposed to a generic drug subject to section
505(j), in the United States usually involves the following:
| • |
completion of pre-clinical laboratory tests, animal studies and formulation studies in compliance with
the FDA’s good laboratory practices, or GLP, requirements or other applicable regulations; |
71
| • |
submission to the FDA of an investigational new drug application, or IND, which must become effective
before human clinical trials in the United States may begin; |
| • |
approval by an independent institutional review board, or IRB, or ethics committee at each clinical site
before each trial may be initiated; |
| • |
performance of adequate and well-controlled human clinical trials in accordance with good clinical practice,
or GCP, requirements to establish the safety and efficacy of the proposed drug for its intended use; |
| • |
preparation and submission to the FDA of an NDA; |
| • |
satisfactory completion of an FDA advisory committee review, if applicable; |
| • |
satisfactory completion of one or more FDA inspections of the manufacturing facility or facilities at
which the product or components thereof are produced, to assess compliance with current good manufacturing practices, or cGMPs, and to
assure that the facilities, methods and controls are adequate to preserve the drug’s identity, strength, quality and purity;
|
| • |
satisfactory completion of FDA audits of clinical trial sites to assure compliance with GCPs and the
integrity of the clinical data; and |
| • |
payment of user fees and FDA review and approval of the NDA. |
Pre-clinical
studies
Pre-clinical
studies include laboratory evaluation or product chemistry, formulation and toxicity, as well as animal studies to assess the potential
safety and efficacy of the product candidate. Pre-clinical safety tests must be conducted in compliance with the FDA regulations. The
results of the pre-clinical studies, together with manufacturing information and analytical data, are submitted to the FDA as part of
an investigational new drug application, or IND, which must become effective before clinical trials may commence. An IND is a request
for authorization from the FDA to administer an investigational new drug product to humans. The central focus of an IND submission is
on the general investigational plan and the protocol(s) for clinical studies. The IND automatically becomes effective 30 days after
receipt by the FDA, unless the FDA, within the 30- day time period, raises safety concerns or questions about the proposed clinical trial.
In such a case, the IND may be placed on clinical hold and the IND sponsor and the FDA must resolve any outstanding concerns or questions
before the clinical trial can begin. Submission of an IND therefore may or may not result in FDA authorization to begin a clinical trial.
Long-term pre-clinical studies, such as animal tests of reproductive toxicity and carcinogenicity, may continue after the IND application
is submitted.
Clinical
trials
Clinical
trials involve the administration of an investigational product to human subjects under the supervision of qualified investigators in
accordance with GCP requirements, which include, among other things, the requirement that all research subjects provide their informed
consent in writing before their participation in any clinical trial. Clinical trials are conducted under written trial protocols detailing,
among other things, the objectives of the trial, the parameters to be used in monitoring safety, and the effectiveness criteria to be
evaluated. A protocol for each clinical trial and any subsequent protocol amendments must be submitted to the local institutional review
board, or IRB, and to the FDA as part of the IND.
An
IRB representing each institution participating in the clinical trial must review and approve the plan for any clinical trial before it
commences at that institution, and the IRB must conduct continuing review at least annually. The IRB must review and approve, among other
things, the trial protocol information to be provided to trial subjects. An IRB must operate in compliance with FDA regulations. Some
studies also include oversight by an independent group of qualified experts organized by the clinical study sponsor, known as a data safety
monitoring board, which provides authorization for whether or not a study may move forward at designated check
points based on access to certain data from the study and may halt the clinical trial if it determines that there is an unacceptable safety
risk for subjects or other grounds, such as no demonstration of efficacy. Depending on its charter, this group may determine whether a
trial may move forward at designated check points based on access to certain data from the trial. The FDA or the sponsor may suspend a
clinical trial at any time on various grounds, including a finding that the research subjects or patients are being exposed to an unacceptable
health risk. Similarly, an IRB can suspend or terminate approval of a clinical trial at its institution if the clinical trial is not being
conducted in accordance with the IRB’s requirements or if the drug has been associated with unexpected serious harm to patients.
There are also requirements governing the reporting of ongoing clinical studies and clinical study results to public registries.
72
Clinical
trials are typically conducted in three sequential phases, which may overlap or be combined:
| • |
Phase
1: The drug is initially introduced into healthy human subjects or patients
with the target disease or condition and tested for safety, dosage tolerance, absorption, metabolism, distribution, excretion and, if
possible, to gain an early indication of its effectiveness and to determine optimal dosage. |
| • |
Phase
2: The drug is administered to a limited patient population to identify
possible short-term adverse effects and safety risks, to preliminarily evaluate the efficacy of the product for specific targeted diseases
and to determine dosage tolerance and optimal dosage. |
| • |
Phase
3: The drug is administered to an expanded patient population, generally
at geographically dispersed clinical trial sites, in well-controlled clinical trials to generate enough data to statistically evaluate
the efficacy and safety of the product for approval, to establish the overall risk-benefit profile of the product, and to provide adequate
information for the labeling of the product. |
In
some cases, the FDA may require, or companies may voluntarily pursue, additional clinical trials after a product is approved to gain more
information about the product. These so-called Phase 4 studies, may be conducted after initial marketing approval, and may be used to
gain additional experience from the treatment of patients in the intended therapeutic indication. In certain instances, the FDA may mandate
the performance of Phase 4 clinical trials as a condition of approval of an NDA.
Concurrent
with clinical trials, companies usually complete additional animal studies and must also develop additional information about the chemistry
and physical characteristics of the drug and finalize a process for manufacturing the product in commercial quantities in accordance with
cGMP requirements. The manufacturing process must be capable of consistently producing quality batches of the product candidate and, among
other things, the manufacturer must develop methods for testing the identity, strength, quality and purity of the final drug. In addition,
appropriate packaging must be selected and tested, and stability studies must be conducted to demonstrate that the product candidate does
not undergo unacceptable deterioration over its shelf life.
While
the IND is active and before approval, progress reports summarizing the results of the clinical trials and nonclinical studies performed
since the last progress report must be submitted at least annually to the FDA, and written IND safety reports must be submitted to the
FDA and investigators for serious and unexpected suspected adverse events, findings from other studies suggesting a significant risk to
humans exposed to the same or similar drugs, findings from animal or in vitro testing suggesting
a significant risk to humans, and any clinically important increased incidence of a serious suspected adverse reaction compared to that
listed in the protocol or investigator brochure.
In
addition, during the development of a new drug, sponsors are given opportunities to meet with the FDA at certain points. These points
may be prior to submission of an IND, at the end of Phase 2, and before an NDA is submitted. Meetings at other times may be requested.
These meetings can provide an opportunity for the sponsor to share information about the data gathered to date, for the FDA to provide
advice, and for the sponsor and the FDA to reach agreement on the next phase of development. Sponsors typically use the meetings at the
end of the Phase 2 trial to discuss Phase 2 clinical results and present plans for the pivotal Phase 3 clinical trials that they believe
will support approval of the new drug.
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Unlike
NDA products which must be shown to be safe and effective for their intended use, ANDA products must be shown to be the same as, and bioequivalent
to, a reference listed drug, or RLD. A product is considered bioequivalent if there is no significant difference in the rate and extent
to which the active ingredient in the generic product and in the RLD becomes available at the site of drug action when administered at
the same molar dose under similar conditions in an appropriately designed study. Accordingly, an applicant typically compares the systemic
exposure profile of the generic test drug product to that of the RLD at the same regimen and exposure period as the RLD to demonstrate
bioequivalence. For most ANDAs, bioequivalence must be shown in human clinical trials, but in some cases, FDA will accept in vitro data.
Specific requirements are typically outlined by FDA in product-specific bioequivalence guidance.
Submission
of an NDA to the FDA
Assuming
successful completion of all required testing with all applicable regulatory requirements, the results of the pre-clinical studies and
clinical trials, together with other detailed information, including information on the manufacture, control and composition of the product,
are submitted to the FDA as part of an NDA requesting approval to market the product candidate for a proposed indication. Under the Prescription
Drug User Fee Act, as amended, applicants are required to pay fees to the FDA for reviewing an NDA. These application user fees, as well
as the annual program fees required for approved products, can be substantial. The NDA application review fee alone can exceed $2.5 million,
subject to certain limited deferrals, waivers and reductions that may be available.
The
FDA has 60 days from its receipt of an NDA to determine whether the application will be accepted for filing based on the agency’s
threshold determination that it is sufficiently complete to permit substantive review. The FDA may request additional information rather
than accept an NDA for filing. In this event, the NDA must be resubmitted with the additional information and is subject to payment of
additional user fees. The resubmitted application is also subject to review before the FDA accepts it for filing. If found complete, the
FDA will accept the NDA for filing. Once the submission is accepted for filing, the FDA begins an in-depth substantive review.
Under
the PDUFA, the FDA has agreed to certain performance goals in the review of NDAs through a two-tiered classification system, Standard
Review and Priority Review. An NDA is eligible for Priority Review if the product candidate is designed to treat serious or life-threatening
disease or condition, and if approved by the FDA, would provide a significant improvement in the treatment, diagnosis or prevention of
a serious disease or condition compared to marketed products. For new molecular entities, or NMEs, such as those typically submitted in
505(b)(1) NDAs, the FDA endeavors to review applications subject to Standard Review within 10 months 60-day filing date, or within 6 months
of the 60-day filing date for Priority Review. For non-NMEs, such as those typically submitted in 505(b)(2) NDAs, FDA’s goal is
to review applications subject to Standard Review within 10 months of receipt, and those subject to Priority Review within 6 months of
receipt. The FDA, however, may not approve a drug within these established goals, as the review process is often significantly extended
by FDA requests for additional information or clarification, and its review goals are subject to change from time to time.
Before
approving an NDA, the FDA inspects the facilities at which the product is manufactured or facilities that are significantly involved in
the product development and distribution process and will not approve the product unless cGMP compliance is satisfactory. Additionally,
the FDA will typically inspect one or more clinical sites to assure compliance with GCP requirements. The FDA may also refer applications
for novel drug products or drug products which present difficult questions of safety or efficacy to an advisory committee for review,
evaluation and recommendation as to whether the application should be approved and under what conditions. The FDA is not bound by the
recommendations of an advisory committee, but it considers such recommendations carefully when making decisions.
74
After
the FDA evaluates the NDA and the manufacturing facilities, it issues either an approval letter or a complete response letter. An approval
letter authorizes commercial marketing of the product with specific prescribing information for specific indications. A complete response
letter indicates that the review cycle for an application is complete and that the application is not ready for approval. A complete response
letter generally outlines the deficiencies in the submission and may require substantial additional testing, or information, in order
for the FDA to reconsider the application. Even with submission of this additional information, the FDA may ultimately decide that an
application does not satisfy the regulatory criteria for approval. If, or when, the deficiencies have been addressed to the FDA’s
satisfaction in a resubmission of the NDA, the FDA will issue an approval letter.
If
a product is approved, the approval will impose limitations on the indicated uses for which the product may be marketed, may require that
warning statements be included in the product labeling, may require that additional studies or trials be conducted following approval
as a condition of the approval, may impose restrictions and conditions on product distribution, prescribing or dispensing in the form
of a risk management plan, or impose other limitations. For example, as a condition of NDA approval, the FDA may require a risk evaluation
and mitigation strategy, or REMS, to ensure that the benefits of the drug outweigh the potential risks. If the FDA determines a REMS is
necessary during review of the application, the drug sponsor must agree to the REMS plan at the time of approval. A REMS may be required
to include various elements, such as a medication guide or patient package insert, a communication plan to educate healthcare providers
of the drug’s risks, limitations on who may prescribe or dispense the drug, or other elements to assure safe use, such as special
training or certification for prescribing or dispensing, dispensing only under certain circumstances, special monitoring and the use of
patient registries. In addition, the REMS must include a timetable to periodically assess the strategy. The requirement for a REMS can
materially affect the potential market and profitability of a drug.
Further
changes to some of the conditions established in an approved application, including changes in indications, labeling, or manufacturing
processes or facilities, require submission and FDA approval of a new NDA or NDA supplement before the change can be implemented, which
may require manufacturers to develop additional data or conduct additional pre-clinical studies and clinical trials. An NDA supplement
for a new indication typically requires clinical data similar to that in the original application, and the FDA uses the similar procedures
in reviewing NDA supplements as it does in reviewing NDAs.
Any
drug products receiving FDA approval will be subject to continuing regulation by the FDA. Certain requirements include, among other things,
record-keeping requirements, reporting of adverse experiences with the product, providing the FDA with updated safety and efficacy information
on an annual basis or more frequently for specific events, product sampling and distribution requirements, complying with certain electronic
records and signature requirements and complying with FDA promotion and advertising requirements. These promotion and advertising requirements
include standards for direct-to-consumer advertising, prohibitions against promoting drugs for uses or patient populations that are not
described in the drug’s approved labeling, known as “off-label use,” and other promotional activities, such as those
considered to be false or misleading.
Although
physicians may prescribe legally available drugs for off-label uses, manufacturers may not encourage, market or promote such off-label
uses. As a result, “off-label promotion” has formed the basis for litigation under the Federal False Claims Act, violations
of which are subject to significant civil fines and penalties. In addition, manufacturers of prescription products are required to disclose
annually to the Center for Medicaid and Medicare any payments made to physicians in the United States under the Sunshine Act of 2012.
These payments could be in cash or kind, could be for any reason, and are required to be disclosed even if the payments are not related
to the approved product. A failure to fully disclose or not report in time could lead to penalties of up to $1 million per year.
The
manufacturing of any drug products must comply with applicable FDA manufacturing requirements contained in the FDA’s cGMP regulations.
The FDA’s cGMP regulations require, among other things, quality control and quality assurance, as well as the corresponding maintenance
of comprehensive records and documentation. Drug manufacturers and other entities involved in the manufacture and distribution of approved
drugs are also required to register their establishments and list any products they make with the FDA and to comply with related requirements
in certain states. Changes to the manufacturing process are strictly regulated and often require prior FDA approval before being implemented.
FDA regulations also require investigation and correction of any deviations from cGMP requirements and impose reporting and documentation
requirements upon the sponsor and any third-party manufacturers that the sponsor may decide to use. These entities are further subject
to periodic unannounced inspections by the FDA and certain state agencies for compliance with cGMP and other laws. Accordingly, manufacturers
must continue to expend time, money and effort in the area of production and quality control to maintain cGMP compliance.
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Discovery
of problems with a product after approval may result in serious and extensive restrictions on a product, manufacturer or holder of an
approved NDA, as well as lead to potential market disruptions. These restrictions may include recalls, suspension of a product until the
FDA is assured that quality standards can be met, and continuing oversight of manufacturing by the FDA under a “consent decree,”
which frequently includes the imposition of costs and continuing inspections over a period of many years, as well as possible withdrawal
of the product from the market. In addition, changes to the manufacturing process generally require prior FDA approval before being implemented.
Other types of changes to the approved product, such as adding new indications and additional labeling claims, are also subject to further
FDA review and approval. There also are continuing, annual program user fee requirements for any approved products, as well as new application
fees for supplemental applications with clinical data.
The
FDA also may require post-marketing testing, or Phase IV testing, as well as surveillance to monitor the effects of an approved product
or place conditions on an approval that could otherwise restrict the distribution or use of our product candidates.
Once
approval is granted, the FDA may withdraw the approval if compliance with regulatory requirements and standards is not maintained or if
problems occur after the product reaches the market. Later discovery of previously unknown problems with a product, including adverse
events of unanticipated severity or frequency, or with manufacturing processes, or failure to comply with regulatory requirements, may
result in mandatory revisions to the approved labeling to add new safety information; imposition of post-market studies or clinical trials
to assess new safety risks; or imposition of distribution or other restrictions under a REMS program. Other potential consequences include,
among other things:
| • |
restrictions on the marketing or manufacturing of the product, complete withdrawal of the product from
the market or product recalls; |
| • |
fines, warning letters or holds on post-approval clinical trials; |
| • |
refusal of the FDA to approve pending NDAs or supplements to approved NDAs, or suspension or revocation
of product approvals; |
| • |
product seizure or detention, or refusal to permit the import or export of products; or |
| • |
injunctions or the imposition of civil or criminal penalties. |
Pediatric
trials and exclusivity
Even
when not pursuing a pediatric indication, under the Pediatric Research Equity Act of 2003, an NDA or supplement thereto must contain data
that is adequate to assess the safety and effectiveness of the drug product for the claimed indications in all relevant pediatric subpopulations,
and to support dosing and administration for each pediatric subpopulation for which the product is safe and effective. Sponsors must also
submit pediatric study plans prior to the assessment data. Those plans must contain an outline of the proposed pediatric trials the applicant
plans to conduct, including trial objectives and design, any deferral or waiver requests, and other information required by the statute.
The applicant, the FDA, and the FDA’s internal review committee must then review the information submitted, consult with each other,
and agree upon a final plan. The FDA or the applicant may request an amendment to the plan at any time.
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The
FDA may also, on its own initiative or at the request of the applicant, grant deferrals for submission of some or all pediatric data until
after approval of the product for use in adults, or full or partial waivers from the pediatric data requirements.
Separately,
in the event the FDA makes a written request for pediatric data relating to a drug product, an NDA sponsor who submits such data may be
entitled to pediatric exclusivity. Pediatric exclusivity is a type of non-patent marketing exclusivity in the United States and, if granted,
provides for the attachment of an additional six months of marketing protection to the term of any existing non-patent exclusivity.
The
Hatch-Waxman Amendments
ANDA
Approval Process
The
Hatch-Waxman Amendments established abbreviated FDA approval procedures for drugs that are shown to be equivalent to proprietary drugs
previously approved by the FDA through the NDA process. Approval to market and distribute these drugs is obtained by submitting an ANDA
to the FDA. An ANDA is a comprehensive submission that contains, among other things, data and information pertaining to the active pharmaceutical
ingredient, drug product formulation, specifications and stability of the generic drug, as well as analytical methods, manufacturing process
validation data, and quality control procedures. Premarket applications for generic drugs are termed abbreviated because they generally
do not include pre-clinical and clinical data to demonstrate safety and effectiveness. Instead, a generic applicant must demonstrate that
its product is bioequivalent to the innovator drug. In certain situations, an applicant may obtain ANDA approval of a generic product
with a strength or dosage form that differs from a referenced innovator drug pursuant to the filing and approval of an ANDA Suitability
Petition. The FDA will approve the generic product as suitable for an ANDA application if it finds that the generic product does not raise
new questions of safety and effectiveness as compared to the innovator product. A product is not eligible for ANDA approval if the FDA
determines that it is not bioequivalent to the referenced innovator drug, if it is intended for a different use, or if it is not subject
to an approved Suitability Petition. However, such a product might be approved under an NDA, with supportive data from clinical trials.
505(b)(2)
NDAs
Section
505(b)(2) was enacted as part of the Hatch-Waxman Amendments, and permits the filing of an NDA where at least some of the information
required for approval comes from studies or trials not conducted by or for the applicant and for which the applicant has not obtained
a right of reference. Section 505(b)(2) typically serves as an alternative path to FDA approval for modifications to formulations or uses
of products previously approved by the FDA. If the 505(b)(2) applicant can establish that reliance on the FDA’s previous findings
of safety and effectiveness is scientifically appropriate, it may eliminate the need to conduct certain pre-clinical studies or clinical
trials for the new product. The FDA may also require companies to perform additional studies or measurements, including clinical trials,
to support the change from the approved branded reference drug. The FDA may then approve the new product candidate for all, or some, of
the labeled indications for which the branded reference drug has been approved, as well as for any new indication sought by the 505(b)(2)
applicant.
Orange
Book Listing
In
seeking approval for a drug through an NDA, including a 505(b)(1) and 505(b)(2) NDA, applicants are required to list with the FDA certain
patents whose claims cover the applicant’s product or method of using the product. Upon approval of an NDA, each of the patents
listed in the application for the drug is then published in the FDA’s publication of Approved Drug Products with Therapeutic Equivalence
Evaluations, commonly known as the “Orange Book.” Any applicant who submits an ANDA seeking approval of a generic equivalent
of a drug listed in the Orange Book or a Section 505(b)(2) NDA referencing a drug listed in the Orange Book must certify to the FDA (1)
that no patent information on the drug product that is the subject of the application has been submitted to the FDA; (2) that such patent
has expired; (3) the date on which such patent expires; or (4) that such patent is invalid or will not be infringed upon by the manufacture,
use, or sale of the drug product for which the application is submitted. This last certification is known as a Paragraph IV certification.
The applicant may also elect to submit a “section viii” statement certifying that its proposed label does not contain (or
carves out) any language regarding a patented method-of-use rather than certify to a listed method-of-use patent.
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If
the applicant does not challenge one or more listed patents through a Paragraph IV certification, the FDA will not approve the ANDA or
Section 505(b)(2) NDA until all the listed patents claiming the referenced product have expired. Further, the FDA will also not approve,
as applicable, an ANDA or Section 505(b)(2) NDA until any non-patent exclusivity, as described in greater detail below, has expired.
If
the ANDA or Section 505(b)(2) NDA applicant has provided a Paragraph IV certification to the FDA, the applicant must also send notice
of the Paragraph IV certification to the owner of the referenced NDA for the previously approved product and relevant patent holders within
20 days after the ANDA or Section 505(b)(2) NDA has been accepted for filing by the FDA. The NDA and patent holders may then initiate
a patent infringement suit against the ANDA or Section 505(b)(2) applicant. Under the FDCA, the filing of a patent infringement lawsuit
within 45 days of receipt of the notification regarding a Paragraph IV certification automatically prevents the FDA from approving the
ANDA or Section 505(b)(2) NDA until the earliest to occur of 30 months beginning on the date the patent holder receives notice, expiration
of the patent, settlement of the lawsuit, or until a court deems the patent unenforceable, invalid or not infringed. Even if a patent
infringement claim is not brought within the 45-day period, a patent infringement claim may be brought under traditional patent law, but
it does not invoke the 30-month stay.
Moreover,
in cases where an ANDA or Section 505(b)(2) application containing a Paragraph IV certification is submitted after the fourth year of
a previously approved drug’s five-year NCE exclusivity period, as described more fully below, and the patent holder brings suit
within 45 days of notice of the Paragraph IV certification, the 30-month period is automatically extended to prevent approval of the Section
505(b)(2) application until the date that is seven and one-half years after approval of the previously approved reference product that
has the five-year NCE exclusivity. The court also has the ability to shorten or lengthen either the 30-month or the seven and one-half
year period if either party is found not to be reasonably cooperating in expediting the litigation.
Further,
although applications submitted in a Section 505(b)(1) NDA are not subject to the same patent certification requirements as Section 505(b)(2)
applications or ANDAs, and are not associated with litigation under the Hatch-Waxman Act, applicants may still face non-Hatch-Waxman patent
litigation for products developed through the Section 505(b)(1) pathway.
Non-Patent
Exclusivity
In
addition to patent exclusivity, NDA holders may be entitled to a period of non-patent exclusivity, during which the FDA cannot approve
an ANDA or 505(b)(2) application that relies on the listed drug. For example, a pharmaceutical manufacturer may obtain five years of non-patent
exclusivity upon NDA approval of a new chemical entity, or NCE, which is a drug that contains an active moiety that has not been approved
by FDA in any other NDA. An “active moiety” is defined as the molecule or ion responsible for the drug substance’s physiological
or pharmacologic action. During the five year exclusivity period, the FDA cannot accept for filing any ANDA seeking approval of a generic
version of that drug or any 505(b)(2) NDA for the same active moiety and that relies on the FDA’s findings regarding that drug,
except that FDA may accept an application for filing after four years if the ANDA or 505(b)(2) applicant makes a Paragraph IV certification.
Another
form of non-patent exclusivity is clinical investigation exclusivity. A drug, including one approved under Section 505(b)(2), may obtain
a three-year period of exclusivity for a particular condition of approval, or change to a marketed product, such as a new formulation
for a previously approved product, if one or more new clinical investigations (other than bioavailability or bioequivalence studies) was
essential to the approval of the application and was conducted or sponsored by the applicant. Should this occur, the FDA would be precluded
from approving any ANDA or 505(b)(2) application for the protected modification until after that three-year exclusivity period has run.
However, unlike NCE exclusivity, the FDA can accept an application and begin the review process during the exclusivity period.
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Review
and Approval of Drug Products Outside the United States
In
addition to regulations in the United States, if we target non-U.S. markets, we will be subject to a variety of foreign regulations governing
manufacturing, clinical trials, commercial sales and distribution of our future product candidates. Whether or not we obtain FDA approval
for a product candidate, we must obtain approval of the product by the comparable regulatory authorities of foreign countries before commencing
clinical trials or marketing in those countries. The approval process varies from country to country, and the time may be longer or shorter
than that required for FDA approval. The requirements governing the conduct of clinical trials, product licensing, pricing and reimbursement
vary greatly from country to country.
Under
European Union regulatory systems, marketing authorizations may be submitted either under a centralized, decentralized or mutual recognition
procedure. The centralized procedure provides for the grant of a single marketing authorization that is valid for all European Union member
states. The decentralized procedure includes selecting one “reference member state,” or RMS, and submitting to more than one-member
state at the same time. The RMS National Competent Authority conducts a detailed review and prepares an assessment report, to which concerned
member states provide comment. The mutual recognition procedure provides for mutual recognition of national approval decisions. Under
this procedure, the holder of a national marketing authorization may submit an application to the remaining member states post-initial
approval. Within 90 days of receiving the applications and assessment report, each member state must decide whether to recognize the approval.
Pharmaceutical
Coverage, Pricing and Reimbursement
Significant
uncertainty exists as to the coverage and reimbursement status of any product candidates for which we obtain regulatory approval. In the
United States and other markets, sales of any product candidates for which we receive regulatory approval for commercial sale will depend
in part on the availability of coverage and reimbursement from third-party payors. Third-party payors include government health administrative
authorities, managed care providers, private health insurers and other organizations. The process for determining whether a payor will
provide coverage for a drug product may be separate from the process for setting the price or reimbursement rate that the payor will pay
for the drug product. Third-party payors may limit coverage to specific drug products on an approved list, or formulary, which might not
include all of the FDA-approved drug products for a particular indication.
Third-party
payors are increasingly challenging the price and examining the medical necessity and cost-effectiveness of medical products and services,
in addition to their safety and efficacy. We or Galderma may need to conduct expensive pharmacoeconomic studies in order to demonstrate
the medical necessity and cost-effectiveness of Epsolay® and Twyneo®. For example, Epsolay® and Twyneo® may not be
considered medically necessary or cost-effective. A payor’s decision to provide coverage for a drug product does not imply that
an adequate reimbursement rate will be approved. Adequate third-party reimbursement may not be available to enable us to maintain price
levels sufficient to realize an appropriate return on our investment in product development.
In
the European Union, pricing and reimbursement schemes vary widely from country to country. Some countries provide that drug products may
be marketed only after a reimbursement price has been agreed. Some countries may require the completion of additional studies or trials
that compare the cost-effectiveness of a particular product candidate to currently available therapies. For example, the European Union
provides options for its member states to restrict the range of drug products for which their national health insurance systems provide
reimbursement and to control the prices of medicinal products for human use. European Union member states may approve a specific price
for a drug product, or it may instead adopt a system of direct or indirect controls on the profitability of the company placing the drug
product on the market. Other member states allow companies to fix their own prices for drug products but monitor and control company profits.
The downward pressure on health care costs in general, particularly prescription drugs, has become intense. As a result, there are increasingly
high barriers to entry for new products. In addition, in some countries, cross-border imports from low-priced markets exert competitive
pressure that may reduce pricing within a country. Any country that has price controls or reimbursement limitations for drug products
may not allow favorable reimbursement and pricing arrangements.
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Healthcare
Reform
In
March 2010, the President of the United States signed the ACA, one of the most significant healthcare reform measures in decades.
The ACA substantially changed the way healthcare is financed by both governmental and private insurers, and significantly impacted the
pharmaceutical industry. The ACA contained a number of provisions, including those governing enrollment in federal healthcare programs,
reimbursement changes and fraud and abuse, which impacted existing government healthcare programs and will result in the development of
new programs, including Medicare payment for performance initiatives and improvements to the physician quality reporting system and feedback
program. Additionally, the ACA increased the minimum level of rebates payable by manufacturers of brand-name drugs from 15.1% to
23.1%, and imposed a non-deductible annual fee on pharmaceutical manufacturers or importers who sell “branded prescription drugs”
to specified federal government programs.
Since
its enactment, there have been judicial, executive and Congressional challenges to certain aspects of the ACA. On June 17, 2021, the U.S.
Supreme Court dismissed the most recent judicial challenge to the ACA without specifically ruling on the constitutionality of the ACA.
Prior to the Supreme Court’s decision, President
Biden issued an executive order to initiate a special enrollment period from February 15, 2021 through August 15, 2021 for purposes of
obtaining health insurance coverage through the ACA marketplace. The executive order also instructed certain governmental agencies to
review and reconsider their existing policies and rules that limit access to healthcare, including among others, reexamining Medicaid
demonstration projects and waiver programs that include work requirements, and policies that create unnecessary barriers to obtaining
access to health insurance coverage through Medicaid or the ACA.
In
addition, other legislative changes have been proposed and adopted since the Affordable Care Act was enacted. For example, the Budget
Control Act of 2011 resulted in aggregate reductions to Medicare payments to providers of 2% per fiscal year, which went into effect on
April 1, 2013 and, due to subsequent legislative amendments to the statute, will stay in effect through 2030, with the exception
of a temporary suspension from May 1, 2020 through March 31, 2022 and a 1% reduction from April 1, 2022 through June 30, 2022, unless
additional Congressional action is taken. Additionally, in January 2013, the American Taxpayer Relief Act of 2012 was signed into
law, which, among other things, further reduced Medicare payments to several providers and increased the statute of limitations period
for the government to recover overpayments to providers from three to five years. More recently, on March 11, 2021, the American Rescue
Plan Act of 2021 was signed into law, which eliminates the statutory Medicaid drug rebate cap, currently set at 100% of a drug’s
average manufacturer price, beginning January 1, 2024.
The
cost of prescription pharmaceuticals in the United States has also been the subject of considerable discussion. There have been several
Congressional inquiries, as well as proposed and enacted legislation designed, among other things, to bring more transparency to product
pricing, review the relationship between pricing and manufacturer patient programs and reform government program reimbursement methodologies
for pharmaceutical products. For example, the Build Back Better Act, if enacted, would introduce substantial drug pricing reforms, including
the establishment of a drug price negotiation program within the U.S. Department of Health and Human Services that would require manufacturers
to charge a negotiated “maximum fair price” for certain selected drugs or pay an excise tax for noncompliance, and the establishment
of rebate payment requirements on manufacturers under Medicare Parts B and D. If the Build Back Better Act is not enacted, similar or
other drug pricing proposals could appear in future legislation. Individual states in the United States have also become increasingly
active in passing legislation and implementing regulations designed to control pharmaceutical product pricing, including price or patient
reimbursement constraints, discounts, restrictions on certain product access and marketing cost disclosure and transparency measures,
and, in some cases, designed to encourage importation from other countries and bulk purchasing. We expect that additional state and federal
healthcare initiatives will be adopted in the future, any of which could impact the coverage and reimbursement for drugs, including Twyneo®,
and if approved by the FDA, Epsolay®.
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Healthcare
Laws and Regulations
Our
current and future business operations may be subject to additional healthcare regulation and enforcement by the federal government and
by authorities in the states and foreign jurisdictions in which we conduct our business. Such laws include, without limitation, state
and federal anti-kickback, fraud and abuse, false claims, price reporting and physician and other healthcare provider payment transparency
laws. Some of our pre-commercial activities are subject to some of these laws.
The
federal Anti-Kickback Statute makes it illegal for any person or entity, including a prescription drug manufacturer or a party acting
on its behalf to knowingly and willfully, directly or indirectly solicit, receive, offer, or pay any remuneration that is intended to
induce the referral of business, including the purchase, order, lease of any good, facility, item or service for which payment may be
made under a federal healthcare program, such as Medicare or Medicaid. The term “remuneration” has been broadly interpreted
to include anything of value. The Anti-Kickback Statute has been interpreted to apply to arrangements between pharmaceutical manufacturers
on one hand and prescribers, purchasers, formulary managers, and beneficiaries on the other. Although there are a number of statutory
exceptions and regulatory safe harbors protecting some common activities from prosecution, the exceptions and safe harbors are drawn narrowly.
Practices that involve remuneration that may be alleged to be intended to induce prescribing, purchases or recommendations may be subject
to scrutiny if they do not qualify for an exception or safe harbor. Failure to meet all of the requirements of a particular applicable
statutory exception or regulatory safe harbor does not make the conduct per se illegal under the Anti-Kickback Statute. Instead, the legality
of the arrangement will be evaluated on a case-by-case basis based on a cumulative review of all its facts and circumstances. Several
courts have interpreted the statute’s intent requirement to mean that if any one purpose of an arrangement involving remuneration
is to induce referrals of federal healthcare covered business, the Anti-Kickback Statute has been violated. In addition, a person or entity
does not need to have actual knowledge of the statute or specific intent to violate it in order to have committed a violation.
The
federal civil False Claims Act prohibits, among other things, any person or entity from knowingly presenting, or causing to be presented,
for payment to, or approval by, federal programs, including Medicare and Medicaid, claims for items or services, including drugs, that
are false or fraudulent or not provided as claimed, knowingly making, using or causing to be made or used, a false record or statement
material to a false or fraudulent claim, or from knowingly making a false statement to avoid, decrease or conceal an obligation to pay
money to a federal program. Persons and entities can be held liable under these laws if they are deemed to “cause” the submission
of false or fraudulent claims by, for example, providing inaccurate billing or coding information to customers or promoting a product
off-label. In addition, our future activities relating to the reporting of wholesaler or estimated retail prices for our product candidates,
the reporting of prices used to calculate Medicaid rebate information and other information affecting federal, state and third-party reimbursement
for our product candidates, and the sale and marketing of our product candidates, are subject to scrutiny under this law. Moreover, a
claim including items or services resulting from a violation of the federal Anti-Kickback Statute constitutes a false or fraudulent claim
for purposes of the federal civil False Claims Act.
HIPAA
created new federal criminal statutes that prohibit among other actions, knowingly and willfully executing, or attempting to execute,
a scheme to defraud any healthcare benefit program, including private third-party payors, knowingly and willfully embezzling or stealing
from a healthcare benefit program, willfully obstructing a criminal investigation of a healthcare offense, and knowingly and willfully
falsifying, concealing or covering up a material fact or making any materially false, fictitious or fraudulent statement in connection
with the delivery of or payment for healthcare benefits, items or services. Like the federal Anti-Kickback Statute, a person or entity
does not need to have actual knowledge of the statute or specific intent to violate it in order to have committed a violation.
The
civil monetary penalties statute imposes penalties against any person or entity that, among other things, is determined to have presented
or caused to be presented a claim to a federal health program that the person knows or should know is for an item or service that was
not provided as claimed or is false or fraudulent.
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The
Affordable Care Act imposed, among other things, new annual reporting requirements for covered manufacturers for certain payments and
other transfers of value provided to physicians (defined to include doctors, dentists, optometrists, podiatrists and chiropractors), certain
non-physician practitioners (nurse practitioners, certified nurse anesthetists, physician assistants, clinical nurse specialists,
anesthesiology assistants and certified nurse midwives), and teaching hospitals, as well as certain ownership and investment interests
held by physicians as defined by statute and their immediate family members.
Also,
many states have similar fraud and abuse statutes or regulations that may be broader in scope and may apply regardless of payor, in addition
to items and services reimbursed under Medicaid and other state programs. Additionally, to the extent that any of our product candidates
are sold in a foreign country, we may be subject to similar foreign laws. Certain states also mandate implementation of compliance programs,
impose restrictions on drug manufacturer marketing practices, require reporting of marketing expenditures and pricing information and/or
require the tracking and reporting of gifts, compensation and other remuneration to physicians.
If
our operations are found to be in violation of any of such laws or any other governmental regulations that apply to us, we may be subject
to penalties, including, without limitation, administrative, civil and criminal penalties, damages, fines, disgorgement, contractual damages,
reputational harm, diminished profits and future earnings, the curtailment or restructuring of our operations, exclusion from participation
in federal and state healthcare programs or similar programs in other countries or jurisdictions, integrity oversight and reporting obligations,
and imprisonment, any of which could adversely affect our ability to operate our business and our financial results.
Data
Privacy and Security Laws
Numerous
state, federal and foreign laws, regulations and standards govern the collection, use, access to, confidentiality and security of health-related
and other personal information, and could apply now or in the future to our operations or the operations of our partners. In the United
States, numerous federal and state laws and regulations, including data breach notification laws, health information privacy and security
laws and consumer protection laws and regulations govern the collection, use, disclosure, and protection of health-related and other personal
information. In addition, certain foreign laws govern the privacy and security of personal data, including health-related data. Privacy
and security laws, regulations, and other obligations are constantly evolving, may conflict with each other to complicate compliance efforts,
and can result in investigations, proceedings, or actions that lead to significant civil and/or criminal penalties and restrictions on
data processing.
Innovation
Authority
We
have received royalty-bearing grants from the government of Israel through the IIA, for the financing of a portion of our research and
development expenditures in Israel.
Under
the Innovation Law and the IIA’s rules and guidelines, recipients of grants, or Recipient Company(ies), are subject to certain obligations
and restrictions with respect to the use of their IIA Funded Know-How, including, the following:
| • |
Royalty
Payment Obligation. In general, the Recipient Company is obligated to pay
the IIA royalties from the revenues generated from the sale of products (and related services), whether received by the grant recipient
or any affiliated entity, developed (in all or in part), directly or indirectly, as a result of, an Approved Program, or deriving therefrom,
at rates which are determined under the IIA’s rules and guidelines (currently a yearly rate of between 3% to 5% on sales of products
or services developed under the Approved Programs, depending on the type of the Recipient Company — i.e., whether it
is a “Small Company,” or a “Large Company” as such terms are defined in the IIA’s rules and guidelines),
up to the aggregate amount of the total grants received by the IIA, plus annual interest based on LIBOR (as determined in the IIA’s
rules and guidelines); |
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| • |
Reporting
Obligations. The Innovation Law and the IIA’s rules and guidelines
impose on the Recipient Company certain reporting obligations (such as, periodic reports regarding the progress of the research and development
activities under the Approved Program and the related research expenses, and regarding the scope of sales of the Recipient Company's products);
|
| • |
Local
Manufacturing Obligation. Products developed using the IIA grants must,
as a general matter, be manufactured in Israel. The Recipient Company is prohibited from manufacturing products developed using these
IIA grants outside of the State of Israel without receiving prior approval from the IIA (except for the transfer of less than 10% of the
manufacturing capacity in the aggregate which requires only a notice, while the IIA has a right to deny such transfer within 30 days following
the receipt of such notice). If the Recipient Company receives approval to manufacture products developed with IIA grants outside of Israel,
it will be required (except for certain cases) to pay increased royalties to the IIA, up to 300% of the grant amount plus interest at
annual rate based on LIBOR, depending on the manufacturing volume that is performed outside of Israel. The Recipient Company may also
be subject to an accelerated royalty repayment rate. A Recipient Company also has the option of declaring in its IIA grant application
its intention to exercise a portion of the manufacturing capacity abroad, thus avoiding the need to obtain additional approval following
the receipt of the grant and avoiding the need to pay increased royalties to the IIA; and |
| • |
IIA
Funded Know-How transfer limitation.
Under the Innovation law and the IIA’s rules and guidelines, a Recipient Company is prohibited from transferring the IIA Funded
Know-How outside of Israel except under limited circumstances, and only with the approval
of the Research Committee and in certain circumstances, subject to certain payments to the IIA calculated according to formulas provided
under the IIA’s rules and guidelines (which are capped to amounts specified under such rules and guidelines, generally up to 6 time
the grants received plus interest). The scope of the support received, the royalties that have
already paid to the IIA, the amount of time that has elapsed between the date on which the know-how was transferred and the date on which
the IIA grants were received and the sale price and the form of transaction will be taken into account in calculating the amount of the
payment to the IIA in the event of a transfer of IIA Funded Know-How outside of Israel. A transfer for the purpose of the Innovation Law
and the IIA rules means an actual sale of the IIA-funded know-how, or any other transaction which in essence constitutes a transfer of
the know-how (such as providing an exclusive license to a foreign entity for R&D purposes, which precludes the IIA funded company
from further using such IIA Funded Know-How). A mere license solely to market products resulting from the IIA Funded Know-How would not
be deemed a transfer for the purpose of the Innovation Law. Upon payment of such redemption fee, the IIA Funded Know-How and the manufacturing
rights of the products supported by such IIA funding cease to be subject to the Innovation Law.
Subject to the IIA’s prior approval,
a grant recipient may transfer IIA Funded Know-How to another Israeli company. If IIA
Funded Know-How is transferred to another Israeli entity, the transfer would still require IIA approval but will not be subject to the
payment of the redemption fee (we note that there will be an obligation to pay royalties to the IIA from the income of such sale transaction
as part of the royalty payment obligation). In such case, the acquiring company would have to assume all of the selling company’s
responsibilities towards the IIA as a condition to IIA approval. |
| • |
IIA Funded Know-How
license limitation. The IIA has published certain rules and guidelines with respect to the grant to a foreign entity of the right
to use the IIA Funded Know-How for R&D purposes. According to these rules, the grant to
a foreign entity of a right to use the IIA Funded Know-How (which does not entirely prevent the IIA funded company from using the Funded
Know-How) is subject to receipt of the IIA’s prior approval. This approval is subject to payment to the IIA in accordance with the
formulas stipulated in these rules (such payment shall be no less than the amount of the IIA grants received (plus annual interest), and
no more than the cap stated in the IIA rules and will generally be due only upon the receipt of the license fee from the licensee).
The abovementioned rules include a mechanism with respect to the grant of a license
by a Recipient Company (which is part of a multinational corporation) to its group entities to use its IIA Funded Know-How. Such license
is subject to the IIA’s prior approval and to the payment of 5% royalties from the income deriving from such license, with the cap
of the royalties increasing to 150% of the grant amount. Such mechanism includes certain restrictions which must be met in order to be
able to enjoy such lower royalty payment. |
83
We
have received grants from the IIA in connection with our research and development of a peripheral line of product candidates, which forms
a negligible part of our activities, and therefore, we are subject to the aforementioned restrictions with respect to such product candidates.
Such restrictions continue to apply even after payment of the full amount of royalties payable pursuant to the grants.
Even
if our IIA funded know-how is transferred to another Israeli entity, the transfer would require the IIA’s approval but will not
be subject to the payment of a redemption fee (we note that there will be an obligation to pay royalties to the IIA from the income of
such sale transaction as part of the royalty payment obligation). In such case, the acquiring company would have to assume all of our
responsibilities towards the IIA as a condition to the IIA’s approval.
The
government of Israel does not own intellectual property rights in technology developed with IIA funding and there is no restriction on
the export of products manufactured using technology developed with IIA funding. However, the IIA Funded Know-How is subject to transfer
of know-how and manufacturing rights restrictions as described above. The IIA’s approval is not required for the export of any products
resulting from the IIA research or development grants.
We
may not receive from the IIA the required approvals for any actual proposed transfer and, if received, we may be required to pay the IIA
certain payments calculated according to formulas provided under the IIA’s rules and guidelines.
Environmental,
Health and Safety Matters
We
are subject to extensive environmental, health and safety laws and regulations in a number of jurisdictions including Israel. These laws
and regulations govern, among other things, (i) the use, storage, registration, handling, emission and disposal of chemicals, waste materials
and sewage and (ii) chemical, air, water and ground contamination, air emissions and the cleanup of contaminated sites, including any
contamination that results from spills due to our failure to properly dispose of chemicals, waste materials and sewage. Our operations
at our Ness Ziona facility use chemicals and produce waste materials and sewage. Our activities require permits from various governmental
authorities, including local municipal authorities, the Ministry of Environmental Protection and the Ministry of Health. The Ministry
of Environmental Protection and the Ministry of Health, local authorities and the municipal water and sewage company conduct periodic
inspections in order to review and ensure our compliance with the various regulations. Our business permit is currently in effect until
December 31, 2026.
These
laws, regulations and permits could potentially require the expenditure by us of significant amounts for compliance or remediation. If
we fail to comply with such laws, regulations or permits, we may be subject to fines and other civil, administrative or criminal sanctions,
including the revocation of permits and licenses necessary to continue our business activities. In addition, we may be required to pay
damages or civil judgments in respect of third-party claims, including those relating to personal injury (including exposure to hazardous
substances we use, store, handle, transport, manufacture or dispose of), property damage or contribution claims. Some environmental, health
and safety laws allow for strict, joint and several liability for remediation costs, regardless of comparative fault. We may be identified
as a responsible party under such laws. Such developments could have a material adverse effect on our business, financial condition and
results of operations.
In
addition, laws and regulations relating to environmental, health and safety matters are often subject to change. In the event of any changes
or new laws or regulations, we could be subject to new compliance measures or to penalties for activities which were previously permitted.
84
The
operations of our subcontractors and suppliers are also subject to various Israeli and foreign laws and regulations relating to environmental,
health and safety matters, and their failure to comply with such laws and regulations could have a material adverse effect on our business
and reputation, result in an interruption or delay in the development or manufacture of our product candidates, or increase the costs
for the development or manufacture of our product candidates.
Properties
Our
principal executive offices are located in a leased facility in Weizmann Science Park, Ness Ziona 7403650, Israel. The facility is 2,040
square meters, and houses our offices, warehouse, laboratories and production area. Our lease will expire on December 31, 2023.
Legal
Proceedings
We
are not subject to any material legal proceedings.
C. Organizational
Structure
Not applicable.
D. Property,
Plant and Equipment
See
“Item 4. Information on the Company—B. Business Overview—Properties”.
ITEM
4A. UNRESOLVED STAFF COMMENTS
None.
ITEM
5. OPERATING AND FINANCIAL REVIEW AND PROSPECTS
You
should read the following discussion of our financial condition and results of operations in conjunction with the consolidated
financial statements and the notes thereto included elsewhere in this annual report. The following discussion contains forward-looking
statements that reflect our plans, estimates and beliefs. Our actual results could differ materially from those discussed in
the forward-looking statements. Factors that could cause or contribute to these differences include those discussed below and elsewhere
in this annual report, particularly those in “Item 3. Key Information – D.
Risk Factors.”
Overview
We
are a dermatology company focused on identifying, developing and commercializing investigational and generic topical drug products for
the treatment of skin diseases. In addition to Twyneo®,
which has been approved by the FDA, our current product candidate pipeline consists of clinical stage and early-stage investigational
product candidates, some of which leverage our proprietary, silica-based microencapsulation technology platform, and several generic product
candidates across multiple indications. Twyneo®,
is a novel, once-daily, investigational non-antibiotic topical cream that we are developing for the treatment of acne vulgaris, or acne.
We completed a 726 subject, double-blind, placebo-controlled, six-arm, multi-center Phase II clinical trial designed to assess the safety
and efficacy of Twyneo® in subjects with facial acne.
In this trial, Twyneo® demonstrated statistically
significant improvements in all pre-defined co-primary and secondary efficacy endpoints, as compared to vehicle.
On
December 30, 2019, we announced top-line results from two pivotal Phase 3 clinical trials evaluating Twyneo®
for the treatment of acne. Twyneo® met all co-primary
endpoints in both Phase 3 trials. The Phase 3 program enrolled an aggregate of 858 patients aged nine and older in two multicenter,
randomized, double-blind, parallel group, vehicle-controlled trials at 63 sites across the United States. Twyneo®
demonstrated statistically significant improvement in each of the co-primary endpoints of (1) the proportion of patients who succeeded
in achieving at least a two grade reduction from baseline and Clear (grade 0) or Almost Clear (grade 1) at Week 12 on a 5-point Investigator
Global Assessment (IGA) scale, (2) an absolute change from baseline in inflammatory lesion count at Week 12, and (3) and an absolute change
from baseline in non-inflammatory lesion count at Week 12. In addition, Twyneo®
was found to be well-tolerated. Twyneo® was approved
for marketing by the FDA in July 2021.
85
Our
investigational product candidate, Epsolay®, is a
novel, once-daily investigational topical cream containing encapsulated benzoyl peroxide that we are developing for the treatment of papulopustular
(subtype II) rosacea. On July 8, 2019, we announced positive top-line results from our Phase 3 program evaluating Epsolay®.
The program enrolled 733 patients aged 18 and older in two identical, double-blind, vehicle-controlled Phase 3 clinical trials at
54 sites across the United States. Epsolay® demonstrated
statistically significant improvement in both co-primary endpoints of (1) the number of patients achieving “clear” or “almost
clear” in the Investigator Global Assessment, or IGA, relative to baseline at week 12 and (2) absolute mean reduction from baseline
in inflammatory lesion count at week 12. In an additional analysis, Epsolay®
demonstrated rapid efficacy, achieving statistically significant improvements on both co-primary endpoints compared with vehicle as early
as Week 2. In addition, Epsolay® was found to be well-tolerated.
On
February 12, 2020, we announced positive topline results from our open-label, long-term safety study, evaluating Epsolay® for a treatment
duration up to 52 weeks. The study enrolled 547 subjects, all of whom had completed 12 weeks of treatment with Epsolay®
or vehicle in the preceding double-blind Phase 3 studies. Patients continued onto open-label treatment with Epsolay once-daily for up
to an additional 40 weeks. The safety population of 535 subjects received Epsolay®
therapy for an overall period of at least 28 weeks. Of these 535 subjects, 209 subjects completed 52 weeks of treatment with Epsolay®,
exceeding the sample size requirements previously defined by the FDA for the Epsolay®
one-year safety evaluation. Our NDA for Epsolay®
has been accepted for filing by the FDA, which originally assigned a PDUFA goal date of April 26, 2021, which has since been delayed due
to COVID-19 related travel restrictions. The FDA conducted a pre-approval inspection of the production site for Epsolay® on February
14, 2022.
Our
other investigational product candidates are SGT-210 that we are developing for the treatment of keratoderma, SGT-310 and SGT-510, each
a potential treatment of various pharmaceutical indications.
We
designed our proprietary, silica-based microencapsulation technology platform to enhance the tolerability and stability of topical drugs
while maintaining their efficacy. Topical drugs often struggle to balance achieving both high efficacy and high tolerability. Our technology
platform entraps active ingredients in an inert, inorganic silica shell, which creates an unnoticeable barrier between the active ingredient
and the skin. The resulting microcapsules are designed to allow the entrapped active ingredients to gradually migrate through the pores
of the shell and deliver active ingredient doses onto the skin in a controlled manner, resulting in improved tolerability and stability
without sacrificing efficacy. By separately encapsulating active ingredients within protective silica shells, our technology platform
also enables the production of novel fixed-dose active ingredient combinations that otherwise would not be stable. We believe that our
microencapsulation technology has the potential to be used for topical drug products to treat a variety of skin diseases. As a result
of the FDA having already approved silica as a safe excipient for topical drug products, we have submitted NDAs for Twyneo® and Epsolay®
under the FDA’s 505(b)(2) regulatory pathway, which may provide for a more efficient regulatory process by permitting us to rely,
in part, upon the FDA’s previous findings of safety and efficacy of an approved product.
In
June 2021, we entered into two five-year exclusive license agreements with Galderma pursuant to which Galderma has the exclusive
right to, and is responsible for, all U.S. commercial activities for Twyneo®, and, if approved by the FDA, Epsolay®. Pursuant
to the agreement, we are entitled to consideration of up to $11 million in upfront payments to us and regulatory approval milestone payments.
We are also eligible to receive tiered double-digit royalties ranging from mid-teen to high-teen percentage of net sales as well as up
to $9 million in sales milestone payments. We also expect to collaborate with third parties that have sales and marketing
experience in order to commercialize our investigational product candidates, if approved by the FDA for commercial sale, in lieu of our
own sales force and distribution systems. In other markets, we also expect to selectively pursue strategic collaborations with third parties
in order to maximize the commercial potential of our product candidates.
86
In
November 2021, we announced that we had signed an agreement with Padagis, pursuant to which we sold our rights related to 10 generic collaborative
programs and retained the collaboration rights to two generic programs related to four generic drug candidates. Under the terms of the
agreement with Padagis, effective as of November 1, 2021, we are to unconditionally receive $21.5 million over 24 months, in lieu of our
share in ten generic programs, two of which were approved by the FDA, and eight of which are unapproved. Pursuant to the agreement,
effective as of November 1, 2021, we ceased paying any outstanding and future operational costs related to those collaborative agreements,
the rights of which were sold to Padagis.
Since
our inception, we have incurred significant operating losses. We incurred net losses of $24.6 million and $29.3 million for the years
ended December 31, 2019, 2020 and we generated a net profit of $3.2 million for the year ended December 31, 2021, respectively. As
of December 31, 2021, we had an accumulated deficit of $178.1 million. We expect to incur significant expenses and operating losses
for the foreseeable future as we advance our product candidates from formulation development through pre-clinical development and clinical
trials, seek regulatory approval and pursue commercialization of any approved product candidate. In addition, we may incur expenses in
connection with the in-license or acquisition of additional product candidates.
In
February 2018 we closed our initial public offering, at which time we sold a total of 7,187,500 ordinary shares in the offering and received
net proceeds of approximately $78.8 million, after deducting underwriting discounts and commissions and without deducting other offering
expenses.
On
August 12, 2019, the Company completed an underwritten public offering, in which it issued 1,437,500 ordinary shares, including the full
exercise by the underwriters of their option to purchase 187,500 additional ordinary shares, at a public offering price of $8.00 per ordinary
share. The total proceeds received from the offering were approximately $10.8 million net of underwriting discounts and commissions and
without deducting other offering expenses.
On
February 19, 2020 the Company completed an underwritten public offering in which it issued 2,091,907 ordinary shares together with ordinary
share warrants to purchase 1,673,525 ordinary shares. The ordinary shares and warrants were sold together at a combined public offering
price of $11.00 per ordinary share and accompanying warrant to purchase 0.80 of an ordinary share. The warrants have an initial
exercise price of $14.00 per share, subject to certain adjustments, and will expire on February 19, 2023. The total proceeds
received from the offering were approximately $21.6 million net of underwriting discounts and commissions and without deducting other
offering expenses.
In
addition, following the approval of the Company’s shareholders, M. Arkin Dermatology Ltd., the controlling shareholder of the Company,
purchased 454,628 ordinary shares and warrants to purchase up to 363,702 ordinary shares in a concurrent private placement, exempt from
the registration of the Securities Act of 1933, as amended, at a price equal to the public offering price of the ordinary shares and accompanying
warrants in the February 2020 public offering. The private placement, which closed on April 13, 2020, generated proceeds of approximately
$5 million.
A. Operating
Results
Collaboration
Revenues
From 2013 until December 31, 2018, other
than revenues of approximately $0.2 million and $0.1 million on royalties generated in 2017 and 2018, respectively, pursuant to sales
of products overseas under past collaboration agreements with Merck, we did not recognize any revenue. We were previously a party
to collaboration agreements with Perrigo pursuant to which we shared development costs with Perrigo and shared equally the gross profits
generated from sales of the product. During the year ended December 31, 2019 the Company recognized revenues from royalties related
to sales of one of the products from this collaboration in the amount of $22.9 million. During the year ended December 31, 2020 the Company
recognized revenues from royalties related to sales of one of the products from this collaboration in the amount of $8.7 million. During
the year ended December 31, 2021, we generated a total of $31.3 million in revenue, out of which $20.4 million were generated
from the sale to Padagis of 10 generic collaborative programs, $3.3 million were generated from our collaboration agreements with Perrigo,
with respect to products the rights for which were later sold to Padagis, and $7.5 million were generated from our collaboration agreement
with Galderma.
87
Operating
expenses
Our
current operating expenses consist primarily of research and development as well as general and administrative expenses.
Research
and development expenses
Research
and development expenses consist principally of:
| • |
salaries for research and development staff and related expenses, including employee benefits and share-based
compensation expenses; |
| • |
expenses paid to suppliers of disposables and raw materials, including drug substances, and related expenses,
such as, external laboratory testing and development of analytical methods; |
| • |
expenses for production of our product candidates both in-house and by contract manufacturers;
|
| • |
expenses paid to contract research organizations and other third parties in connection with the performance
of pre-clinical studies, clinical trials and related expenses; |
| • |
expenses incurred under agreements with other third parties, including subcontractors, suppliers and
consultants that conduct formulation development, regulatory activities and pre-clinical studies; |
| • |
expenses incurred to acquire, develop and manufacture materials for use in pre-clinical and other studies;
|
| • |
expenses incurred from the purchase and transfer of product candidates; and |
| • |
facilities, depreciation of fixed assets used to develop our product candidates, maintenance of equipment
used to develop our product candidates and other expenses, including direct and allocated expenses for rent, maintenance of facilities,
insurance and other operating expenses. |
Research
and development activities are central to our business model. Product candidates in later stages of clinical development generally have
higher development expenses than those in earlier stages of clinical development, primarily due to the increased size and duration of
later-stage clinical trials. We expect to continue to incur research and development expenses over the next several years
as we conduct pre-clinical studies and clinical trials and prepare regulatory filings for our product candidates.
88
Due
to the inherently unpredictable and highly uncertain nature of clinical development processes, we cannot reasonably estimate the nature,
timing and expenses of the efforts that will be necessary to complete the remainder of the development of our product candidates, or when,
if ever, material net cash inflows may commence from any of our product candidates. Clinical development timelines, the probability of
success and development expenses can differ materially from expectations. This is due to numerous risks and uncertainties associated with
developing drugs, including the uncertainty of:
| • |
the scope, rate of progress and expense of our research and development activities; |
| • |
clinical trials and early-stage results; |
| • |
the terms and timing of regulatory requirements and approvals; |
| • |
the expense of filing, prosecuting, defending and enforcing patent claims and other intellectual property
rights; and |
| • |
the ability to market, commercialize and achieve market acceptance of any product candidate that we are
developing or may develop in the future. |
While
we are currently focused on advancing our product development, our future research and development expenses will depend on the clinical
success of our product candidates, as well as ongoing assessments of the product candidates’ commercial potential. As we obtain
results from clinical trials, we or our partners may elect to discontinue or delay clinical trials for one or more of our product candidates
in certain indications in order to focus our resources on more promising product candidates. Completion of clinical trials may take several
years or more, but the length of time generally varies according to the type, complexity, novelty and intended use of a product candidate.
The
lengthy process of completing clinical trials and seeking regulatory approval for our product candidates requires the expenditure of substantial
resources. Any failure or delay in completing clinical trials, or in obtaining regulatory approvals, could cause a delay in generating
product revenue and cause our research and development expenses to increase and, in turn, have a material adverse effect on our operations.
General
and administrative expenses
Our
general and administrative expenses consist primarily of salaries and related expenses, including employee benefits and share-based compensation
expenses, legal expenses and professional fees for auditors and other expenses not related to research and development activities.
Financial
income, net
Our
financial income, net consists primarily of income generated on our marketable securities and
bank deposits net of expenses related to bank charges and foreign currency exchange transactions.
Results
of operations
The
following table summarizes our results of operations for the indicated periods:
|
|
Year ended December 31, |
|||||||||||
|
|
2019 |
2020 |
2021 |
|||||||||
|
(in thousands) |
||||||||||||
|
Collaboration Revenues |
$ |
22,904 |
$ |
8,771 |
$ |
23,772 |
||||||
|
License Revenues |
7,500 |
|||||||||||
|
Total Revenues |
$ |
22,904 |
$ |
8,771 |
31,272 |
|||||||
|
Research and development |
40,578 |
27,913 |
20,381 |
|||||||||
|
General and administrative |
8,276 |
11,091 |
8,451 |
|||||||||
|
OTHER INCOME, net |
- |
- |
524 |
|||||||||
|
Total operating income (loss) |
(25,950 |
) |
(30,233 |
) |
2,964 |
|||||||
|
Financial income, net |
1,374 |
943 |
257 |
|||||||||
|
Income (Loss) before income taxes
|
(24,576 |
) |
(29,290 |
) |
3,221 |
|||||||
|
Income taxes |
33 |
- |
||||||||||
|
Income (loss) for the year |
$ |
(24,609 |
) |
$ |
(29,290 |
) |
$ |
3,221 |
||||
89
Year
ended December 31, 2020 compared to year ended December 31, 2021
Collaboration
Revenues
We
generated a total of $31.3 million in revenue in 2021, out of which $20.4 million were generated from the sale to Padagis
of 10 generic collaborative programs, $3.3 million were generated from our collaboration agreements with Perrigo, with respect to products
the rights for which were later sold to Padagis, and $7.5 million were generated from our collaboration agreement with Galderma compared
with $8.7 million in 2020. The increase in revenues in 2021 resulted mainly from entering into new agreements.
Research
and development expenses
The
following table describes the breakdown of our research and development expenses for the indicated periods:
|
|
Year Ended December 31, |
|||||||
|
|
2020 |
2021 |
||||||
|
|
(in thousands) |
|||||||
|
Payroll and related expenses |
$ |
6,194 |
$ |
5,614 |
||||
|
Clinical and preclinical trials expenses |
5,526 |
715 |
||||||
|
Professional consulting and subcontracted work |
12,508 |
10,776 |
||||||
|
Other |
3,685 |
3,276 |
||||||
|
Total research and development expenses |
$ |
27,913 |
$ |
20,381 |
||||
Our
research and development expenses were $27.9 million for the year ended December 31, 2020 compared to $20.4 million for the year ended
December 31, 2021. The decrease of $7.5 million was mainly attributed to a decrease of $4.8 million in clinical trial expenses, mainly
related to mainly related to the completion of the clinical trials of Epsolay and Twyneo, a decrease of $0.6 million in payroll and related
expenses mainly related to share based compensation expenses.
General
and administrative expenses
Our
general and administrative expenses were $11.1 million for the year ended December 31, 2020, compared to $8.5 million for the year ended
December 31, 2021. The decrease of $2.6 million was mainly attributed to a decrease of $3.0 million in commercialization expenses.
Financial
income, net
Our
financial income, net, was $0.9 million for the year ended December 31, 2020 compared to $0.3 million for the year ended December 31,
2021.
Year
ended December 31, 2019 compared to year ended December 31, 2020
This
analysis can be found in Item 5 of the Company’s Annual Report on Form 20‑F for the year ended December 31,
2020.
JOBS
Act
On
April 5, 2012, the JOBS Act was signed into law. Subject to certain conditions set forth in the JOBS Act, as an “emerging growth
company,” we elected or may elect to rely on certain exemptions, including without limitation, not (i) providing an auditor’s
attestation report on our system of internal controls over financial reporting pursuant to Section 404 and (ii) complying with any requirement
that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s
report providing additional information about the audit and the financial statements (auditor discussion and analysis). These exemptions
will apply until the earliest of (a) the last day of our fiscal year during which we have total annual gross revenues of at least
$1.07 billion; (b) December 31, 2023, the last day of our fiscal year following the fifth anniversary of the closing of our initial public
offering; (c) the date on which we have, during the previous three-year period, issued more than $1.0 billion in non-convertible debt;
or (d) the date on which we are deemed to be a “large accelerated filer” under the Exchange Act.
90
B.
Liquidity and Capital Resources
Overview
Since
our inception, we have devoted substantially all of our resources to developing our product candidates, building our intellectual property
portfolio, developing our supply chain, business planning, raising capital and providing for general and administrative support for these
operations. Other than Twyneo®, we do not currently have any approved products.
From
inception through December 31, 2021, we have funded our operations primarily through proceeds from our public offerings, the issuance
of equity securities to and loans and investments from our controlling shareholder, funding received from the IIA and from amounts received
pursuant to past and current collaboration agreements. We automatically converted our outstanding promissory note between us and our controlling
shareholder into an aggregate of 5,444,825 ordinary shares immediately prior to the closing of our initial public offering. For a description
of the conversion of our shareholder loan agreement, see “Item 7. Major Shareholders and Related Party Transactions – B. Related
Party Transactions — Loan Agreements with Our Controlling Shareholder.” As of December 31, 2021, our cash and cash equivalents,
bank deposits and marketable securities were $43.2 million.
In
July 2021, the Company entered into an ATM sales agreement with Jefferies LLC ("Jefferies"), pursuant to which the Company is entitled,
at its sole discretion, to offer and sell through Jefferies, acting as sales agent, Shares having an aggregate offering price of up to
$25.0 million throughout the period during which the ATM facility remains in effect. The Company agreed to pay Jefferies a commission
of 3.0% of the gross proceeds from the sale of shares under the facility.
From
the effective date of the agreement through the issuance date of this report, 41,154 shares were sold under the program for total
gross proceeds of approximately $0.5 million, leaving an available balance under the facility of approximately $24.5 million
as of the issuance date of this report.
The
table below summarizes our cash flow activities for the indicated periods:
|
|
Year Ended
December 31, |
|||||||||||
|
|
2019 |
2020 |
2021 |
|||||||||
|
|
(in thousands) |
|||||||||||
|
Net cash used in operating activities
|
$ |
(22,500 |
) |
$ |
(25,241 |
) |
$ |
(7,691 |
) | |||
|
Net cash provided by (used in) investing activities
|
16,024 |
(2,694 |
) |
19,872 |
||||||||
|
Net cash provided by financing activities
|
10,613 |
26,457 |
837 |
|||||||||
|
Increase (decrease) in cash and cash equivalents |
$ |
4,137 |
$ |
(1,478 |
) |
$ |
12,908 |
|||||
91
Operating
Activities
Net cash used in operating activities was
$25.2 million during the year ended December 31, 2020 compared to $7.7 million during the year ended December 31, 2021.
Net cash used in operating activities in the
year ended December 31, 2021 primarily resulted from our income of $3.2 million during the period, $12.5 million of net changes
in working capital and non-cash expenses of $0.7 million share-based compensation expenses and $0.9 million of depreciation of property
and equipment.
Net cash used in operating activities in the
year ended December 31, 2020 primarily resulted from our loss of $29.3 million during the period, $1.6 million of net changes in
working capital and non-cash expenses of $1.2 million share-based compensation expenses and $0.9 million of depreciation of property and
equipment.
Investing
Activities
Net
cash used in investing activities was $2.7 million during the year ended December 31, 2020, compared to net cash provided by investing
activities of $19.9 million during the year ended December 31, 2021. The 2020 net cash used in investing activities resulted
mainly from $19.2 million proceeds from marketable securities, net, offset by investment of $0.5 million in property and equipment and
investment of $21.4 million in bank deposits. The 2021 net cash provided by investing activities resulted mainly from $20.1 million
proceeds from marketable securities, net.
Financing
Activities
Net
cash from financing activities was $26.4 million during the year ended December 31, 2020, compared to $0.8 million during the year ended
December 31, 2021. The decrease was principally due to our underwritten public offering and private placement in 2020, net of issuance
cost, of $26.3 million.
Funding
Requirements
Our
primary uses of cash have been to fund working capital requirements and research and development. We expect to continue to incur net losses
for the foreseeable future as we continue to invest in research and development and seek to obtain regulatory approval for and commercialize
our product candidates. We believe that our existing cash resources will be sufficient to enable us to fund our operating expenses and
capital expenditure requirements at least until the end of 2023, assuming the timely approval of Epsolay®. We have based this estimate
on assumptions that may prove to be wrong, and we could use our capital resources sooner than we currently expect. Our ability to continue
as a going concern will depend on our ability to generate positive cash flow from operations and obtain additional financing, both of
which are uncertain.
Developing
drugs, conducting clinical trials, obtaining commercial manufacturing capabilities and commercializing products is expensive and we will
need to raise substantial additional funds to achieve our strategic objectives. We will require significant additional financing in the
future to fund our operations, including if and when we progress into additional clinical trials for our product candidates, obtain regulatory
approval for one or more of our product candidates, obtain commercial manufacturing capabilities and commercialize one or more of our
product candidates. Our future funding requirements will depend on many factors, including, but not limited to:
| • |
the progress and expenses of our pre-clinical studies, clinical trials and other research and development
activities; |
| • |
the scope, prioritization and number of our clinical trials and other research and development programs;
|
92
| • |
the expenses and timing of obtaining regulatory approval, if any, for our product candidates; |
| • |
the expenses of filing, prosecuting, enforcing and defending patent claims and other intellectual property
rights; and |
| • |
the expenses of, and timing for, expanding our manufacturing agreements for production of sufficient
clinical and commercial quantities of our product candidates. |
Other
than revenue that we expect to generate from the commercialization of Twyneo® with an anticipated launch during the spring of 2022,
and, if approved, Epsolay®, until we can generate recurring revenues, we expect to satisfy our future cash needs through existing
cash resources, additional debt or equity financings or by entering into collaborations with third parties in connection with one or more
of our product candidates. We cannot be certain that additional funding will be available to us on acceptable terms, if at all. In addition,
the terms of any securities we issue in future financings may be more favorable to new investors and may include preferences, superior
voting rights and the issuance of warrants or other derivative securities, which may have a further dilutive effect on the holders of
any of our securities then outstanding. If we raise additional funds through collaborations with third parties, we may be required to
relinquish valuable rights to our technologies, future revenue streams, research programs or product candidates or to grant licenses on
terms that may not be favorable to us. If we are unable to obtain adequate funds on reasonable terms, we will need to curtail operations
significantly, including possibly postponing anticipated clinical trials or entering into financing agreements with unattractive terms.
C. Research
and Development, Patents and Licenses
For
a description of our research and development programs and the amounts that we have incurred over the last two years pursuant to those
programs, please see “Item 5. Operating and Financial Review and Prospects — A. Operating Results — Research and Development
Expenses”; and “Item 5. Operating and Financial Review and Prospects — A. Operating Results — Year Ended December
31, 2020 compared to Year ended December 31, 2021 - Research and Development Expenses.”
D. Trend
Information
Other
than as disclosed elsewhere in this annual report, we are not aware of any trends, uncertainties, demands, commitments or events for the
period from January 1, 2021 to December 31, 2021 that are reasonably likely to have a material adverse effect on our revenue, income,
profitability, liquidity or capital resources, or that caused that disclosed financial information to be not necessarily indicative of
future operating results or financial condition.
E.
Critical Accounting Policies
Significant
Accounting Policies and Estimates
We
prepare our consolidated financial statements in conformity with U.S. GAAP. We describe our significant accounting policies and estimates
more fully in Note 2 to our consolidated financial statements as of and for the year ended December 31, 2021, included elsewhere
in this annual report. We believe that the accounting policies and estimates below are critical in order to fully understand and evaluate
our financial condition and results of operations. In preparing these consolidated financial statements, our management has made estimates
and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts of expenses during the reporting periods recognized in our financial statements.
Actual results may differ from these estimates. As applicable to the consolidated financial statements included in this annual report,
the most significant estimates and assumptions relate to the fair value of share-based compensation.
93
Share-based
Compensation
Share-based
compensation reflects the compensation expense of our share option programs granted to employees which compensation expense is measured
at the grant date fair value of the options. The grant date fair value of share-based compensation is recognized as an expense over the
requisite service period, net of estimated forfeitures. We recognize compensation expense for awards conditioned only on continued service
that have a graded vesting schedule using the accelerated method based on the multiple-option award approach, and classify these amounts
in our statement of operations based on the department to which the related employee reports.
Options
Valuation
We
selected the Black-Scholes option pricing model as the most appropriate method for determining the estimated fair value of the shared
based compensation.
For
the purpose of the evaluation of the fair value and the manner of the recognition of share-based compensation, our management is required
to estimate, among others, various subjective and complex parameters that are included in the calculation of the fair value of the option.
These parameters include the expected volatility of our share price over the expected term of the options, the risk-free interest rate
assumption, and the term the that options are expected to remain outstanding.
94
ITEM
6. DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
A. Directors
and Senior Management
The
following table sets forth information concerning our directors and senior management, which includes members of our administrative, supervisory
and management bodies, including their ages, as of the date of this annual report:
|
Name |
|
Age |
|
Position |
|
|
Moshe Arkin |
|
69 |
|
Executive Chairman of the Board of Directors |
|
|
Alon Seri-Levy |
|
60 |
|
Chief Executive Officer and Director |
|
|
Gilad Mamlok |
|
53 |
|
Chief Financial Officer |
|
|
Ofer Toledano |
|
57 |
|
Vice President Research and Development |
|
|
Ofra Levy-Hacham |
|
56 |
|
Vice President Clinical and Regulatory Affairs |
|
|
Karine Neimann |
|
50 |
|
Vice President Projects and Planning, Chief Chemist |
|
|
Itzik Yosef |
|
45 |
|
Vice President Operations |
|
| Dov Zamir | 69 |
Vice President Special Projects |
|||
|
Nissim Bilman |
|
60 |
|
Vice President Quality |
|
|
Itai Arkin |
|
33 |
|
Director |
|
|
Shmuel Ben Zvi |
|
62 |
|
Independent Director |
|
|
Hani Lerman |
|
49 |
|
Director |
|
|
Yaffa Krindel-Sieradzki
Jonathan B. Siegel |
|
67
48 |
|
Independent Director
Independent Director |
|
|
Ran Gottfried |
|
77 |
|
Independent External Director and Lead Independent Director
|
|
|
Jerrold S. Gattegno |
|
69 |
|
External and Independent Director |
|
Mr.
Moshe Arkin has served as chairman of our board of directors since 2014.
in May 2022 Mr. Moshe Arkin's role has been expanded to to Executive Chairman to reflect Mr. Arkin’s expanded role at the Company.
Mr. Moshe Arkin currently sits on the board of directors of several private pharmaceutical and medical device companies including Exalenz
Bioscience Ltd., a developer of advanced systems for gastrointestinal and liver disorders since 2006, SoniVie Ltd., a company developing
systems for the treatment of pulmonary arterial hypertension, Digma Medical, a company developing systems to treat insulin resistance
present in type 2 diabetes and other metabolic syndrome diseases, and Valcare Medical, a company developing heart valve devices. From
2005 to 2008, Mr. Moshe Arkin served as the head of generics at Perrigo Company and from 2005 until 2011 as the vice chairman of its board
of directors. Prior to joining us, Mr. Moshe Arkin served as a director of cCAM Biotherapeutics Ltd., a company focused on the discovery
and development of novel immunotherapies to treat cancer from 2012 until its acquisition in 2015 by Merck & Co., Inc. Mr. Moshe Arkin
served as chairman of Agis Industries Ltd. from its inception in 1972 until its acquisition by Perrigo Company in 2005. Mr. Moshe Arkin
holds a B.A. in psychology from the Tel Aviv University, Israel.
Dr.
Alon Seri-Levy co-founded Sol-Gel and has served as our chief executive
officer since our inception in 1997 and as a member of our board of directors until 2014. Prior to founding Sol-Gel, Dr. Seri-Levy established
the computer-aided drug design department at Peptor Ltd., an Israeli research and development company that specialized in the development
of peptide-based drug products. Dr. Seri-Levy holds a Ph.D. in Chemistry (summa cum laude) from The Hebrew University of Jerusalem,
Israel, and conducted his post-doctoral studies at Oxford University, United Kingdom. Dr. Seri-Levy was appointed to our board of directors
immediately following the pricing of our initial public offering.
95
Mr.
Gilad Mamlok has served as our chief financial officer since February 2017.
From August 2015 to January 2017, Mr. Mamlok served as the chief financial officer for Medigus Ltd., a medical device company dual
listed on Nasdaq and the Tel Aviv Stock Exchange, or the TASE. From September 2005 to March 2015, Mr. Mamlok served as senior vice
president, global finance and accounting of Given Imaging Ltd., a medical device company dual listed on Nasdaq and TASE, acquired by Covidien
plc in February 2014. From January 2002 to September 2005, Mr. Mamlok served as chief financial officer of two other medical device
companies. Mr. Mamlok holds a Master’s degree in business economics from Tel-Aviv University and a B.A. in economics (magna
cum laude) from Tel-Aviv University, Israel.
Dr.
Ofer Toledano has served as our vice president of research and development
since 2004. Prior to joining Sol-Gel, Dr. Toledano served as manager of the formulation department at ADAMA Agricultural Solutions Ltd.
(formerly known as Makhteshim Agan Industries Ltd.), an Israeli manufacturer and distributor of crop protection products from 1998 until
2004. Dr. Toledano holds a Ph.D. in chemistry from The Hebrew University of Jerusalem, Israel.
Dr.
Ofra Levy-Hacham has served as our vice president of clinical and regulatory
affairs since 2018, and as our vice president of quality and regulatory affairs from 2011 to 2018. Prior to joining Sol-Gel, Dr. Levy-Hacham
served as a scientific specialist and project manager at Biotechnology General Ltd., a wholly owned subsidiary of Ferring Pharmaceuticals
Ltd., and a fully integrated biopharmaceutical services private company from 2010 until 2011. From 2005 until 2010, Dr. Levy-Hacham served
as vice president chemistry, manufacturing and controls at HealOr Ltd., a private company engaging in the development of therapeutics
for the treatment of various skin disorders. Dr. Levy-Hacham holds a Ph.D. in chemistry from The Technion – Israel Institute
of Technology, Israel.
Dr.
Karine Neimann has served as our vice president of projects and planning
and chief chemist since September 2016. Since joining us in 2008, Dr. Neimann held various positions, including as chief chemist and laboratory
manager. Dr. Neimann holds a Ph.D. in chemistry from The Hebrew University of Jerusalem, Israel.
Dr.
Itzik Yosef has served as our vice president of operations since August 2016.
Since joining us in 2010, Dr. Yosef held various positions including as head of operations. Dr. Yosef holds a Ph.D. in chemistry from
The Hebrew University of Jerusalem, Israel.
Dr.
Dubi Zamir has served as our vice president special projects since August 2016.
Prior to joining us, Dr. Zamir lead the R&D group in Cima NanoTech Ltd., a private company developing sophisticated nanotechnology-based
coating formulations from 2007 until 2016. From 2004 to 2007, Dr. Zamir was VP of Pharma and Analytical R&D at Taro Pharmaceutical
Industries in Haifa, and for three years prior to that he managed its Analytical R&D lab. Dr. Zamir holds a Ph.D. in organic chemistry
from Tel-Aviv University, Israel.
Mr.
Nissim Bilman became Vice President Quality of Sol-Gel on the August 15,
2018. From 2004 until 2018, Mr. Bilman served as CEO of QPRO Pharma, a project management and consulting company offering services related
to the pharmaceutical industry. From 2011 until 2018, he served as the Vice President Drug Development of Exalenz Bioscience. From
2007 until 2010, Mr. Bilman served as VP R&D and Manufacturing and Site Manager for Gelesis Inc./Gelesis R&D Ltd. Mr. Bilman holds
a Bachelor Degree in Chemistry and Meteorology, as well as a Master of Science in Applied Chemistry, both from the Hebrew University in
Israel.
Mr.
Itai Arkin became a member of our board of directors immediately following
the pricing of our initial public offering. Mr. Itai Arkin currently serves as Investment Manager at Arkin Holdings Ltd.. Mr. Itai Arkin
holds a B.A. in business administration (cum laude) from Interdisciplinary Center, Herzliya, Israel, and an MBA (cum laude) from Tel Aviv
University. Mr. Itai Arkin is the son of Mr. Moshe Arkin, the chairman of our board of directors and sole beneficial owner of Arkin Dermatology,
our controlling shareholder.
96
Dr.
Shmuel (Muli) Ben Zvi became a member of our board of directors immediately
following pricing of our initial public offering. Dr. Ben Zvi is currently a board member and member of the credit, technology, resources
and strategy committees at Bank Leumi, and a board member and member of the audit committee and compensation committee of VBL Therapeutics.
From 2004 to 2014, Dr. Ben Zvi held various managerial positions at Teva Pharmaceuticals Industries Ltd., including Vice President of
Finance and Vice President of Strategy. From 2000 to 2004, Dr. Ben Zvi was the financial advisor to the Chief of General Staff of the
Israel Defense Forces and head of the Defense Ministry budget department. Dr. Ben Zvi holds a Ph.D. in economics from Tel-Aviv University,
Israel and participated in the Harvard Business School Advanced Management Program (AMP).
Ms.
Hani Lerman became a member of our board of directors immediately following
pricing of our initial public offering. Ms. Lerman has served as chief financial officer at Arkin Holdings since 2015. From 2010 until
2014, Ms. Lerman served as chief financial officer of Sansa Security (f/k/a Discretix Technologies), and from 2006 until 2010, she served
as chief financial officer of Storwize, which was acquired by IBM in 2010. She served as a board member of Exalenz Bioscience and of Sphera
Global Healthcare. She holds a Master's degree in business administration with a major in finance from Tel-Aviv University, Israel, and
a B.A. in economics and accounting from Tel-Aviv University, Israel.
Ms.
Yaffa Krindel-Sieradzki
became a member of our board of directors on February 23, 2018. Ms. Krindel-Sieradzki currently serves on the board of Itamar Medical
Ltd., a medical device company publicly traded on both Nasdaq and the Tel Aviv Stock Exchange ("TASE"), BGN Technologies Ltd., the technology
transfer company of Ben Gurion University, and three private medical device companies, as follows: EZbra Advanced Wound Care Ltd., Theranica
Bio Electronics Ltd. and Trisol Medical Ltd. Ms. Krindel-Sieradzki has served on the board of directors of numerous companies publicly
traded on Nasdaq. From 1997 until 2007, Ms. Krindel-Sieradzki served as Partner and Managing Partner of Star Ventures, a private venture
capital fund headquartered in Munich, Germany. Before joining Star Ventures, Ms. Krindel served from 1992 to 1996 as CFO and VP Finance
of Lannet Data Communications Ltd., an Israeli telecommunications company publicly traded on Nasdaq which is now part of Avaya Inc. From
1993 to 1997, she served as CFO and later as director of BreezeCOM Ltd., an Israeli telecommunications company which traded on Nasdaq
and TASE. Ms. Krindel-Sieradzki has earned an M.B.A. from Tel Aviv University and a B.A. in Economics and Japanese Studies from the Hebrew
University in Jerusalem, both with honors.
Jonathan
B. Siegel became a member of our board of directors on September 13, 2018.
Mr. Siegel is the founder and CEO of JBS Healthcare Ventures since formation in 2017. In June 2021, he also assumed the role of CEO and
Chairman of the board of OPY Acquisition Corp. I, a public Nasdaq-listed company. Previously, he was a partner and healthcare sector head
at Kingdon Capital Management from 2011 until 2017. Prior to joining Kingdon, Mr. Siegel was a healthcare portfolio manager at SAC Capital
Advisors from 2005 until 2011; an associate director of pharmaceutical and specialty pharmaceutical research at Bear, Stearns & Co.;
a pharmaceuticals research associate at Dresdner Kleinwort Wasserstein; and a consultant to the Life Sciences Division of Computer Sciences
Corporation. Mr. Siegel has worked as a research associate at the Novartis Center for Immunobiology at Harvard Medical School and as a
research assistant at Tufts University School of Medicine. He is also a director at Jaguar Health, Inc., a Nasdaq listed company, and
has served on the board of advisors of Vitalis LLC, a private pharmaceutical company, since March 2019 and as a director of Napo Therapeutics
S.p.A, the majority owned Italian subsidiary of Napo Pharmaceuticals and Jaguar Health, Inc. since November 2021. Mr. Siegel received
a BS in Psychology from Tufts University in 1995 and an MBA from Columbia Business School in 1999.
Mr.
Ran Gottfried became a member of our board of directors immediately following
the pricing of our initial public offering and serves as an external director under the Companies Law and as the lead independent director.
Since 1975, Mr. Gottfried has served as a chief executive officer, consultant and director of private companies in Israel and Europe
in the areas of retail and distribution of pharmaceuticals, consumer and household products. Mr. Gottfried served as a director of Perrigo
Company from 2006 until 2015. From 2006 until 2008, Mr. Gottfried served as chairman and chief executive officer of Powerpaper Ltd., a
leading developer and manufacturer of micro electrical cosmetic and pharmaceutical patches. From 2005 until 2010, Mr. Gottfried served
as a director of Bezeq, Israel’s leading telecommunications provider and from 2003 until its acquisition by Perrigo Company in 2005,
Mr. Gottfried served as a director of Agis Industries Ltd. He is currently a board member and member of the audit and investment, technology
and innovation and risk management committees at Shufersal Ltd.
97
Mr.
Jerrold S. Gattegno became a member of our board of directors immediately
following the pricing of our initial public offering and serves as an external director under the Companies Law. Mr. Gattegno worked in
the New York, Washington D.C. and London offices of Deloitte Touche Tohmatsu Limited, a public accounting firm, from 1973 until 2015,
where he served in various senior positions, including as a managing partner in Deloitte’s Washington National Tax Office, as the
partner-in-charge and founding partner of Deloitte’s multistate tax practice and as managing director and principal of Deloitte
Tax Overseas Services LLC. Mr. Gattegno served as a governing board member of the Hispanic Association of Colleges and Universities
and a member of its finance and audit committee, from 2012 until 2015. Mr. Gattegno is a certified public accountant and holds a B.S.
in accounting (cum laude) from the City University of New York and an M.B.A. in taxation (with honors) from Pace University, New York.
B. Compensation
The
aggregate compensation paid by us to our executive officers and directors for the year ended December 31, 2021 was approximately
$3.4 million. This amount includes approximately $0.4 million set aside or accrued to provide pension, severance, retirement or similar
benefits or expenses, but does not include business travel, relocation, professional and business association dues and expenses reimbursed
to officers, and other benefits commonly reimbursed or paid by companies in Israel.
The
table and summary below outline the compensation granted to our five highest compensated directors and officers during the year ended
December 31, 2021. The compensation detailed in the table below refers to actual compensation granted or paid to the director or
officer during the year 2021.
|
Name and Position of director or
officer |
Base
Salary
or
Other
Payment
(1) |
Value of
Social
Benefits
(2) |
Value of
Equity Based
Compensation
Granted
(3) |
All Other
Compensation
(4) |
Total |
|||||||||||||||
|
(Amounts in U.S. dollars are based on 2021
monthly average representative U.S. dollar – NIS rate of exchange) |
||||||||||||||||||||
|
Alon Seri-Levy / CEO |
334 |
65 |
72 |
168 |
640 |
|||||||||||||||
|
Gilad Mamlok / CFO |
279 |
58 |
15 |
132 |
484 |
|||||||||||||||
|
Ofer Toledano / VP R&D |
219 |
60 |
13 |
95 |
387 |
|||||||||||||||
|
Ofra Levy-Hacham / VP Clinical & RA |
162 |
48 |
10 |
66 |
286 |
|||||||||||||||
|
John Vieira / U.S. Head of Commercialization(5) |
210 |
54 |
(51 |
) |
68 |
281 |
||||||||||||||
| (1) |
“Base Salary or Other Payment” means the aggregate yearly gross monthly salaries or other
payments with respect to the Company's Executive Officers and members of the board of directors for the year 2021. |
| (2) |
“Social Benefits” include payments to the National Insurance Institute, advanced education
funds, managers’ insurance and pension funds; vacation pay; and recuperation pay as mandated by Israeli law. |
| (3) |
Consists of the fair value of the equity-based compensation granted during 2021 in exchange for the directors
and officers services recognized as an expense in profit or loss and is carried to the accumulated deficit under equity. The total amount
recognized as an expense over the vesting period of the options. |
| (4) |
“All Other Compensation” includes, among other things,
car-related expenses, communication expenses, basic health insurance, holiday presents, and 2019, 2020 and 2021 special bonuses that officers
received. |
| (5) |
John Viera has ceased being an employee of the Company as of November 2021. |
In
addition, all of our directors and executive officers are covered under our directors’ and executive officers’ liability insurance
policies and were granted letters of indemnification by us.
98
Employment
Agreements
We
have entered into written employment agreements with each of our executive officers. These agreements provide for notice periods of varying
duration for termination of the agreement by us or by the relevant executive officer, during which time the executive officer will continue
to receive base salary and benefits. These agreements also contain customary provisions regarding noncompetition, confidentiality of information
and assignment of inventions. However, the enforceability of the noncompetition provisions may be limited under applicable law. See “Item
3. Key Information – D. Risk Factors — Risks Related to Employee Matters" — Under applicable employment laws, we may
not be able to enforce covenants not to compete” for a further description of the enforceability of non-competition clauses.
For
information on exemption and indemnification letters granted to our directors and officers, please see “Item 6. Directors, Senior
Management and Employees - C. Board Practices – Exculpation, Insurance and Indemnification of Directors and Officers”.
Director
Compensation
We
currently pay our external directors and our other independent directors: (i) $35,000 annually in cash; (ii) $5,000 annually in
cash for service on each of the Audit Committee and/or Compensation Committee (as the case may be) and (iii) $10,000 annually in cash
for service as chairman of the Audit Committee and/or Compensation Committee (as the case may be), which includes amounts payable under
clause (ii) (all cash amounts to be paid quarterly).
There
shall be no limit regarding the number and/or hours of meetings, and it includes all meetings of the Board and any Board’s committees.
In
addition, in 2018 and 2019 each of our external directors and our other independent directors received an aggregate of 11,500 Restricted
Share Units ("RSUs") for the first three years of their service as a director, with a three-year vesting, , and in accordance with the
Company's 2014 Share Incentive Plan, and in 2021 each of our external directors and our other independent directors received 45,000 options
("Options"), at an exercise price of $10.02 with a three-year vesting, and in accordance with the Company's 2014 Share Incentive Plan.
We
do not pay compensation to the other directors of the Company in their capacity as directors.
Compensation
Policy
Our
compensation policy, which became effective immediately after the pricing of our initial public offering, is designed to promote retention
and motivation of directors and executive officers, incentivize superior individual excellence, align the interests of our directors and
executive officers with our long-term performance and provide a risk management tool. To that end, a portion of an executive officer compensation
package is targeted to reflect our short and long-term goals, as well as the executive officer’s individual performance. On the
other hand, our compensation policy includes measures designed to reduce the executive officer’s incentives to take excessive risks
that may harm us in the long-term, such as limits on the value of cash bonuses and equity-based compensation, limitations on the ratio
between the variable and the total compensation of an executive officer and minimum vesting periods for equity-based compensation.
Our
compensation policy also addresses our executive officer’s individual characteristics (such as his or her respective position, education,
scope of responsibilities and contribution to the attainment of our goals) as the basis for compensation variation among our executive
officers, and considers the internal ratios between compensation of our executive officers and directors and other employees. Pursuant
to our compensation policy, the compensation that may be granted to an executive officer may include: base salary, annual bonuses and
other cash bonuses (such as a signing bonus and special bonuses with respect to any special achievements, such as outstanding personal
achievement, outstanding personal effort or outstanding company performance), equity-based compensation, benefits and retirement and termination
of service arrangements. All cash bonuses are limited to a maximum amount linked to the executive officer’s base salary. In addition,
the total variable compensation components (cash bonuses and equity-based compensation) may not exceed 85% of each executive officer’s
total compensation package with respect to any given calendar year.
99
An
annual cash bonus may be awarded to executive officers upon the attainment of pre-set periodic objectives and individual targets. The
annual cash bonus that may be granted to our executive officers other than our chief executive officer will be based on performance objectives
and a discretionary evaluation of the executive officer’s overall performance by our chief executive officer and subject to minimum
thresholds. The annual cash bonus that may be granted to executive officers other than our chief executive officer may be based entirely
on a discretionary evaluation. Furthermore, our chief executive officer will be entitled to recommend performance objectives, and such
performance objectives will be approved by our compensation committee (and, if required by law, by our board of directors).
The
performance measurable objectives of our chief executive officer will be determined annually by our compensation committee and board of
directors, will include the weight to be assigned to each achievement in the overall evaluation. A less significant portion of the chief
executive officer’s annual cash bonus may be based on a discretionary evaluation of the chief executive officer’s overall
performance by the compensation committee and the board of directors based on quantitative and qualitative criteria.
The
equity-based compensation under our compensation policy for our executive officers (including members of our board of directors) is designed
in a manner consistent with the underlying objectives in determining the base salary and the annual cash bonus, with its main objectives
being to enhance the alignment between the executive officers’ interests with our long-term interests and those of our shareholders
and to strengthen the retention and the motivation of executive officers in the long term. Our compensation policy provides for executive
officer compensation in the form of share options or other equity-based awards, such as restricted shares and restricted share units,
in accordance with our share incentive plan then in place. All equity-based incentives granted to executive officers shall be subject
to vesting periods in order to promote long-term retention of the awarded executive officers. The equity-based compensation shall be granted
from time to time and be individually determined and awarded according to the performance, educational background, prior business experience,
qualifications, role and the personal responsibilities of the executive officer.
In
addition, our compensation policy contains compensation recovery provisions which allows us under certain conditions to recover bonuses
paid in excess, enables our chief executive officer to approve an immaterial change in the terms of employment of an executive officer
(provided that the changes of the terms of employment are in accordance our compensation policy) and allows us to exculpate, indemnify
and insure our executive officers and directors subject to certain limitations set forth thereto.
Our
compensation policy also provides for compensation to the members of our board of directors either (i) in accordance with the amounts
provided in the Companies Regulations (Rules Regarding the Compensation and Expenses of an External Director) of 2000, as amended by the
Companies Regulations (Relief for Public Companies Traded in Stock Exchange Outside of Israel) of 2000, as such regulations may be amended
from time to time, or (ii) in accordance with the amounts determined in our compensation policy.
Our
compensation policy, which was approved by our board of directors and our controlling shareholder on October 2, 2017, became effective
upon the pricing of our initial public offering.
100
C.
Board Practices
Appointment
of Directors and Terms of Officers
Our
board of directors consists of eight directors, including two external directors, and appointment fulfills the requirements of the Companies
Law for the company to have two external directors (see “ Item 6. Directors, Senior Management and Employees - C. Board Practices
– External Directors”). These two directors, as well as three additional directors, qualify as independent directors under
the corporate governance standards of the Nasdaq corporate governance rules and the independence requirements of Rule 10A-3 of the Exchange
Act.
Under
our amended and restated articles of association, the number of directors on our board of directors will be no less than five (5) and
no more than nine (9), including any external directors required to be appointed under the Companies Law. The minimum and maximum number
of directors may be changed, at any time and from time to time, by a special 66 2∕3% majority shareholder vote.
Other
than external directors, for whom special election requirements apply under the Companies Law, as detailed below, our directors are divided
into three classes with staggered three-year terms. Each class of directors consists, as nearly as possible, of one-third of the total
number of directors constituting the entire board of directors (other than the external directors). At each annual general meeting of
our shareholders, the election or re-election of directors following the expiration of the term of office of the directors of that class
of directors will be for a term of office that expires on the third annual general meeting following such election or re-election, such
that from 2019 and after, at each annual general meeting the term of office of only one class of directors will expire. Each director
holds office until the third annual general meeting of our shareholders and until his or her successor is duly appointed, unless the tenure
of such director expires earlier pursuant to the Companies Law or unless removed from office as described below, except that our external
directors have a term of office of three years under Israeli law. See “— External directors — Election and Dismissal
of External Directors”.
Our
directors who are not external directors are divided among the three classes as follows:
| • |
Class I directors consist of Ms. Yaffa Krindel-Sieradzki, Dr. Shmuel Ben Zvi and Mr. Jonathan B. Siegel,
who are all independent directors, and their term will expire at our annual general meeting of our shareholders to be held in 2022;
|
| • |
Class II directors consist of Ms. Hani Lerman and Dr. Alon Seri-Levy, and their term will expire at our
annual general meeting of our shareholders to be held in 2023; and |
| • |
Class III directors consist of Mr. Itai Arkin and Mr. Moshe Arkin, and their term will expire at our
annual general meeting of our shareholders to be held in 2024. |
Mr.
Ran Gattegno and Mr. Jerrold S. Gottfried serve as our external directors and will each have a term of three years.
Under
our amended and restated articles of association, our board of directors may elect new directors if the number of directors is below the
maximum provided therein. External directors are elected for an initial term of three years and may be elected for up to two additional
three-year terms (or more) under the circumstances described below. External directors may be removed from office only under the limited
circumstances set forth in the Companies Law. See “Item 6. Directors, Senior Management and Employees - C. Board Practices –
External Directors— Election and Dismissal of External Directors” for a description of the procedure for the election of external
directors.
Under
Israeli law, the chief executive officer of a public company may not serve as the chairman of the board of directors of the company unless
approved by a special majority of our shareholders as required under the Companies Law.
In
addition, under the Companies Law, our board of directors must determine the minimum number of directors who are required to have financial
and accounting expertise. Under applicable regulations, a director with financial and accounting expertise is a director who, by reason
of his or her education, professional experience and skill, has a high level of proficiency in and understanding of business accounting
matters and financial statements. See “Item 6. Item 6. Directors, Senior Management and Employees - C. Board Practices – External
Directors — Qualifications of External Directors.” He or she must be able to thoroughly comprehend the financial statements
of the company and initiate debate regarding the manner in which financial information is presented. In determining the number of directors
required to have such expertise, the board of directors must consider, among other things, the type and size of the company and the scope
and complexity of its operations. Our board of directors has determined that we require at least one director with the requisite financial
and accounting expertise and that has such expertise.
101
There
are no family relationships among any of our office holders (including directors), other than Mr. Itai Arkin who is the son of Mr. Moshe
Arkin.
Alternate
Directors
Our
amended and restated articles of association provide, as allowed by the Companies Law, that any director may, by written notice to us,
appoint another person who is qualified to serve as a director to serve as an alternate director. The alternate director will be regarded
as a director. Under the Companies Law, a person who is not qualified to be appointed as a director, a person who is already serving as
a director or a person who is already serving as an alternate director for another director, may not be appointed as an alternate director.
Nevertheless, a director who is already serving as a director may be appointed as an alternate director for a member of a committee of
the board of directors as long as he or she is not already serving as a member of such committee, and if the alternate director is to
replace an external director, he or she is required to be an external director and to have either “financial and accounting expertise”
or “professional expertise,” depending on the qualifications of the external director he or she is replacing. The term of
appointment of an alternate director may be for one meeting of the board of directors or until notice is given of the cancellation of
the appointment. A person who does not have the requisite “financial and accounting experience” or the “professional
expertise,” depending on the qualifications of the external director he or she is replacing, may not be appointed as an alternate
director for an external director.
External
Directors
Qualifications
of External Directors
Under
the Companies Law, companies incorporated under the laws of the State of Israel that are “public companies,” including companies
with shares listed on The Nasdaq Global Market, are generally required to appoint at least two external directors who meet the qualification
requirements set forth in the Companies Law.
A
person may not be appointed as an external director if the person is a relative of a controlling shareholder or if on the date of the
person’s appointment or within the preceding two years the person or his or her relatives, partners, employers or anyone to whom
that person is subordinate, whether directly or indirectly, or entities under the person’s control have or had any affiliation with
any of (each an “Affiliated Party”): (1) us; (2) any person or entity controlling us on the date of such appointment;
(3) any relative of a controlling shareholder; or (4) any entity controlled, on the date of such appointment or within the preceding two
years, by us or by a controlling shareholder. If there is no controlling shareholder or any shareholder holding 25% or more of voting
rights in the company, a person may not be appointed as an external director if the person has any affiliation to the chairman of the
board of directors, the general manager (chief executive officer), any shareholder holding 5% or more of the company’s shares or
voting rights or the senior financial officer as of the date of the person’s appointment.
The
term “controlling shareholder” means a shareholder with the ability to direct the activities of the company, other than by
virtue of being an office holder. A shareholder is presumed to have “control” of the company and thus to be a controlling
shareholder of the company if the shareholder holds 50% or more of the “means of control” of the company. “Means of
control” is defined as (1) the right to vote at a general meeting of a company or a corresponding body of another corporation; or
(2) the right to appoint directors of the corporation or its general manager. For the purpose of approving related-party transactions,
the term also includes any shareholder that holds 25% or more of the voting rights of the company if the company has no shareholder that
owns more than 50% of its voting rights. For the purpose of determining the holding percentage stated above, two or more shareholders
who have a personal interest in a transaction that is brought for the company’s approval are deemed as joint holders.
102
The
term affiliation includes:
| • |
an employment relationship; |
| • |
a business or professional relationship maintained on a regular basis; |
| • |
control; and |
| • |
service as an office holder, excluding service as a director in a private company prior to the first
offering of its shares to the public if such director was appointed as a director of the private company in order to serve as an external
director following the initial public offering. |
The
term “relative” is defined as a spouse, sibling, parent, grandparent, descendant, spouse’s descendant, sibling and parent
and the spouse of each of the foregoing.
The
term “office holder” is defined as a general manager, chief business manager, deputy general manager, vice general manager,
director or manager directly subordinate to the general manager or any other person assuming the responsibilities of any of the foregoing
positions, without regard to such person’s title.
A
person may not serve as an external director if that person or that person’s relative, partner, employer, a person to whom such
person is subordinate (directly or indirectly) or any entity under the person’s control has a business or professional relationship
with any entity that has an affiliation with any Affiliated Party, even if such relationship is intermittent (excluding insignificant
relationships). Additionally, any person who has received compensation intermittently (excluding insignificant relationships) other than
compensation permitted under the Companies Law may not continue to serve as an external director.
No
person can serve as an external director if the person’s position or other affairs create, or may create, a conflict of interest
with the person’s responsibilities as a director or may otherwise interfere with the person’s ability to serve as a director
or if such a person is an employee of the Israeli Securities Authority or of an Israeli stock exchange. If at the time an external director
is appointed all current members of the board of directors, who are not controlling shareholders or relatives of controlling shareholders,
are of the same gender, then the external director to be appointed must be of the other gender. In addition, a person who is a director
of a company may not be elected as an external director of another company if, at that time, a director of the other company is acting
as an external director of the first company.
The
Companies Law provides that an external director must meet certain professional qualifications or have financial and accounting expertise
and that at least one external director must have financial and accounting expertise. However, if at least one of our other directors
(1) meets the independence requirements of the Exchange Act, (2) meets the standards of the Nasdaq corporate governance rules for
membership on the audit committee and (3) has financial and accounting expertise as defined in the Companies Law and applicable regulations,
then neither of our external directors is required to possess financial and accounting expertise as long as both possess other requisite
professional qualifications. The determination of whether a director possesses financial and accounting expertise is made by the board
of directors. A director with financial and accounting expertise is a director who by virtue of his or her education, professional experience
and skill, has a high level of proficiency in and understanding of business accounting matters and financial statements so that he or
she is able to fully understand our financial statements and initiate debate regarding the manner in which the financial information is
presented.
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The
regulations promulgated under the Companies Law define an external director with requisite professional qualifications as a director who
satisfies one of the following requirements: (1) the director holds an academic degree in either economics, business administration, accounting,
law or public administration, (2) the director either holds an academic degree in any other field or has completed another form of higher
education in the company’s primary field of business or in an area which is relevant to his or her office as an external director
in the company, or (3) the director has at least five years of experience serving in any one of the following, or at least five years
of cumulative experience serving in two or more of the following capacities: (a) a senior business management position in a company with
a substantial scope of business, (b) a senior position in the company’s primary field of business or (c) a senior position in public
administration.
Until
the lapse of a two-year period from the date that an external director of a company ceases to act in such capacity, the company in which
such external director served, and its controlling shareholder or any entity under control of such controlling shareholder may not, directly
or indirectly, grant such former external director, or his or her spouse or child, any benefit, including via (i) the appointment of such
former director or his or her spouse or his child as an officer in the company or in an entity controlled by the company’s controlling
shareholder, (ii) the employment of such former director, and (iii) the engagement, directly or indirectly, of such former director as
a provider of professional services for compensation, directly or indirectly, including via an entity under his or her control. With respect
to a relative who is not a spouse or a child, such limitations shall only apply for one year from the date such external director ceased
to be engaged in such capacity.
Election
and Dismissal of External Directors
Under
Israeli law, external directors are elected by a majority vote at a shareholders’ meeting, provided that either:
| • |
the majority of the shares that are voted at the meeting in favor of the election of the external director,
excluding abstentions, include at least a majority of the votes of shareholders who are not controlling shareholders and do not have a
personal interest in the appointment (excluding a personal interest that did not result from the shareholder’s relationship with
the controlling shareholder); or |
| • |
the total number of shares held by non-controlling shareholders or any one on their behalf that are voted
against the election of the external director does not exceed two percent of the aggregate voting rights in the company. |
Under
Israeli law, the initial term of an external director of an Israeli public company is three years. The external director may be re-elected,
subject to certain circumstances and conditions, for up to two additional terms of three years each, and thereafter, subject to conditions
set out in the regulations promulgated under the Companies Law, to further three year terms, each re-election subject to one of the following:
| • |
his or her service for each such additional term is recommended by one or more shareholders holding at
least 1% of the company’s voting rights and is approved at a shareholders meeting by a disinterested majority, where the total number
of shares held by non-controlling, disinterested shareholders voting for such reelection exceeds 2% of the aggregate voting rights in
the company and subject to additional restrictions set forth in the Companies Law with respect to the affiliation of the external director
nominee; |
| • |
the external director proposed his or her own nomination, and such nomination was approved in accordance
with the requirements described in the paragraph above; or |
| • |
his or her service for each such additional term is recommended by the board of directors and is approved
at a meeting of shareholders by the same majority required for the initial election of an external director (as described above).
|
104
An
external director may be removed by the same special majority of the shareholders required for his or her election, if he or she ceases
to meet the statutory qualifications for appointment or if he or she violates his or her fiduciary duty to the company. An external director
may also be removed by order of an Israeli court if the court finds that the external director is permanently unable to exercise his or
her office, has ceased to meet the statutory qualifications for his or her appointment, has violated his or her fiduciary duty to the
company, or has been convicted by a court outside Israel of certain offenses detailed in the Companies Law.
If
the vacancy of an external directorship causes a company to have fewer than two external directors, the company’s board of directors
is required under the Companies Law to call a special general meeting of the company’s shareholders as soon as possible to appoint
such number of new external directors so that the company thereafter has two external directors.
Additional
Provisions
Under
the Companies Law, each committee authorized to exercise any of the powers of the board of directors is required to include at least one
external director and its audit and compensation committees are required to include all of the external directors.
An
external director is entitled to compensation and reimbursement of expenses in accordance with regulations promulgated under the Companies
Law and is prohibited from receiving any other compensation, directly or indirectly, in connection with serving as a director except for
certain exculpation, indemnification and insurance provided by the company, as specifically allowed by the Companies Law.
Audit
Committee
Companies
Law Requirements
Under
the Companies Law, the board of directors of any public company must also appoint an audit committee comprised of at least three directors,
including all of the external directors. The audit committee may not include:
| • |
the chairman of the board of directors; |
| • |
a controlling shareholder or a relative of a controlling shareholder; |
| • |
any director employed by us or by one of our controlling shareholders or by an entity controlled by our
controlling shareholders (other than as a member of the board of directors); or |
| • |
any director who regularly provides services to us, to one of our controlling shareholders or to an entity
controlled by our controlling shareholders. |
According
to the Companies Law, the majority of the members of the audit committee, as well as the majority of members present at audit committee
meetings, will be required to be “independent” (as defined below) and the chairman of the audit committee will be required
to be an external director. Any persons disqualified from serving as a member of the audit committee may not be present at the audit committee
meetings, unless the chairman of the audit committee has determined that such person is required to be present at the meeting or if such
person qualifies under one of the exemptions of the Companies Law.
The
term “independent director” is defined under the Companies Law as an external director or a director who meets the following
conditions and who is appointed or classified as such according to the Companies Law: (1) the conditions for his or her appointment as
an external director (as described above) are satisfied and the audit committee approves the director having met such conditions and (2)
he or she has not served as a director of the company for over nine consecutive years with any interruption of up to two years of his
or her service not being deemed a disruption to the continuity of his or her service.
105
Nasdaq
Listing Requirements
Under
the Nasdaq corporate governance rules, we are required to maintain an audit committee consisting of at least three independent directors,
all of whom are financially literate and one of whom has accounting or related financial management expertise.
Our
audit committee consists of Ran Gottfried, Jerrold S. Gattegno, Shmuel Ben Zvi and Yaffa Krindel-Sieradzki. Jerrold S. Gattegno serves
as Chairman of the committee. All members of our audit committee meet the requirements for financial literacy under the applicable rules
and regulations of the SEC and the Nasdaq corporate governance rules. Our board of directors has determined that Jerrold S. Gattegno is
an audit committee financial expert as defined by SEC rules and has the requisite financial experience as defined by the Nasdaq corporate
governance rules.
Each
of the members of the audit committee is “independent” as such term is defined in Rule 10A-3(b)(1) under the Exchange Act.
Approval
of Transactions with Related Parties
The
approval of the audit committee is required to effect specified actions and transactions with office holders and controlling shareholders
and their relatives, or in which they have a personal interest. See “Item 6. Directors, Senior Management and Employees - C. Board
Practices – Duties of Directors and Officers and Approval of Specified Related Party Transactions under the Israeli Companies Law
– Fiduciary Duties of Office Holders.” The audit committee may not approve an action or a transaction with a controlling shareholder
or with an office holder unless at the time of approval the audit committee meets the composition requirements under the Companies Law.
Audit
Committee Role
Our
board of directors has adopted an audit committee charter effective immediately after the pricing of our initial public offering setting
forth the responsibilities of the audit committee consistent with the rules of the SEC and the Nasdaq corporate governance rules, which
include:
| • |
retaining and terminating our independent auditors, subject to board of directors and shareholder ratification;
|
| • |
overseeing the independence, compensation and performance of the Company’s independent auditors;
|
| • |
the appointment, compensation, retention and oversight of any accounting firm engaged for the purpose
of preparing or issuing an audit report or performing other audit services; |
| • |
pre-approval of audit and non-audit services to be provided by the independent auditors; |
| • |
reviewing with management and our independent directors our financial statements prior to their submission
to the SEC; and |
| • |
approval of certain transactions with office holders and controlling shareholders, as described below,
and other related party transactions. |
Additionally,
under the Companies Law, the role of the audit committee includes the identification of irregularities in our business management, among
other things, by consulting with the internal auditor or our independent auditors and suggesting an appropriate course of action to the
board of directors. In addition, the audit committee or the board of directors, as set forth in the articles of association of the company,
is required to approve the yearly or periodic work plan proposed by the internal auditor. The audit committee is required to assess the
company’s internal audit system and the performance of its internal auditor. The Companies Law also requires that the audit committee
assess the scope of the work and compensation of the company’s external auditor. In addition, the audit committee is required to
determine whether certain related party actions and transactions are “material” or “extraordinary” for the purpose
of the requisite approval procedures under the Companies Law and whether certain transactions with a controlling shareholder will be subject
to a competitive procedure. The audit committee charter states that in fulfilling its role the committee is empowered to conduct or authorize
investigations into any matters within its scope of responsibilities. A company whose audit committee’s composition also meets the
requirements set for the composition of a compensation committee (as further detailed below) may have one committee acting as both audit
and compensation committees.
106
Compensation
Committee
Under
the Companies Law, public companies are required to appoint a compensation committee in accordance with the guidelines set forth thereunder.
The
compensation committee must consist of at least three members. All of the external directors must serve on the committee and constitute
a majority of its members. The chairman of the compensation committee must be an external director. The remaining members are not required
to be external directors, but must be directors who qualify to serve as members of the audit committee (as described above).
The
compensation committee, which consists of Ran Gottfried, Jerrold S. Gattegno, Shmuel Ben Zvi and Jonathan B. Siegel, assists the
board of directors in determining compensation for our directors and officers. Ran Gottfried serves as Chairman of the committee. Under
SEC and Nasdaq rules, there are heightened independence standards for members of the compensation committee, including a prohibition against
the receipt of any compensation from us other than standard supervisory board member fees. Although foreign private issuers are not required
to meet this heightened standard, our board of directors has determined that all of our expected compensation committee members meet this
heightened standard.
In
accordance with the Companies Law, the roles of the compensation committee are, among others, as follows:
| (1) |
to recommend to the board of directors the compensation policy for directors and officers, and to recommend
to the board of directors once every three years whether the compensation policy that had been approved should be extended for a period
of more than three years; |
| (2) |
to recommend to the board of directors updates to the compensation policy, from time to time, and examine
its implementation; |
| (3) |
to decide whether to approve the terms of office and employment of directors and officers that require
approval of the compensation committee; and |
| (4) |
to decide whether the compensation terms of the chief executive officer, which were determined pursuant
to the compensation policy, will be exempted from approval by the shareholders because such approval would harm the ability to engage
the chief executive officer. |
In
addition to the roles mentioned above our compensation committee also makes recommendations to our board of directors regarding the awarding
of employee equity grants.
In
general, under the Companies Law, a public company must have a compensation policy approved by the board of directors after receiving
and considering the recommendations of the compensation committee. In addition, the compensation policy requires the approval of the general
meeting of the shareholders. In public companies such as our company, shareholder approval requires one of the following: (i) the majority
of shareholder votes counted at a general meeting including the majority of all of the votes of those shareholders who are non-controlling
shareholders and do not have a personal interest in the approval of the compensation policy, who vote at the meeting (excluding abstentions)
or (ii) the total number of votes against the proposal among the shareholders mentioned in paragraph (i) does exceed two percent (2%)
of the voting rights in the company. Under special circumstances, the board of directors may approve the compensation policy despite the
objection of the shareholders on the condition that the compensation committee and then the board of directors decide, on the basis of
detailed arguments and after discussing again the compensation policy, that approval of the compensation policy, despite the objection
of the meeting of shareholders, is for the benefit of the company.
107
If
a company initially offer its securities to the public, like we recently did, adopts a compensation policy in advance of its initial public
offering, and describes it in its prospectus, then such compensation policy shall be deemed a validly adopted policy in accordance with
the Companies Law requirements described above. Furthermore, if the compensation policy is set in accordance with the aforementioned relief,
then it will remain in effect for term of five years from the date such company has become a public company.
The
compensation policy must be based on certain considerations, include certain provisions and needs to reference certain matters as set
forth in the Companies Law.
The
compensation policy must serve as the basis for decisions concerning the financial terms of employment or engagement of office holders,
including exculpation, insurance, indemnification or any monetary payment or obligation of payment in respect of employment or engagement.
The compensation policy must relate to certain factors, including advancement of the company’s objectives, business plan and long-term
strategy, and creation of appropriate incentives for office holders. It must also consider, among other things, the company’s risk
management, size and the nature of its operations. The compensation policy must furthermore consider the following additional factors:
| • |
the education, skills, experience, expertise and accomplishments of the relevant office holder;
|
| • |
the office holder’s position, responsibilities and prior compensation agreements with him or her;
|
| • |
the ratio between the cost of the terms of employment of an office holder and the cost of the employment
of other employees of the company, including employees employed through contractors who provide services to the company, in particular
the ratio between such cost, the average and median salary of the employees of the company, as well as the impact of such disparities
on the work relationships in the company; |
| • |
if the terms of employment include variable components — the possibility of reducing variable components
at the discretion of the board of directors and the possibility of setting a limit on the value of non-cash variable equity-based components;
and |
| • |
if the terms of employment include severance compensation — the term of employment or office of
the office holder, the terms of his or her compensation during such period, the company’s performance during the such period, his
or her individual contribution to the achievement of the company goals and the maximization of its profits and the circumstances under
which he or she is leaving the company. |
The compensation policy
must also include, among others:
| • |
with regards to variable components: |
| – |
with the exception of office holders who report directly to the chief executive officer, determining
the variable components on long-term performance basis and on measurable criteria; however, the company may determine that an immaterial
part of the variable components of the compensation package of an office holder’s shall be awarded based on non-measurable criteria,
if such amount is not higher than three monthly salaries per annum, while taking into account such office holder contribution to the company;
|
| – |
the ratio between variable and fixed components, as well as the limit of the values of variable components
at the time of their grant. |
108
| • |
a condition under which the office holder will return to the company, according to conditions to be set
forth in the compensation policy, any amounts paid as part of his or her terms of employment, if such amounts were paid based on information
later to be discovered to be wrong, and such information was restated in the company’s financial statements; |
| • |
the minimum holding or vesting period of variable equity-based components to be set in the terms of office
or employment, as applicable, while taking into consideration long-term incentives; and |
| • |
a limit to retirement grants. |
Corporate
Governance Practices
Internal
Auditor
Under
the Companies Law, the board of directors of a public company must appoint an internal auditor based on the recommendation of the audit
committee. The role of the internal auditor is, among other things, to examine whether a company’s actions comply with applicable
law and orderly business procedure. Under the Companies Law, the internal auditor may not be an interested party or an office holder or
a relative of an interested party or of an office holder, nor may the internal auditor be the company’s independent auditor or the
representative of the same.
An
“interested party” is defined in the Companies Law as (i) a holder of 5% or more of the issued share capital or voting power
in a company, (ii) any person or entity who has the right to designate one or more directors or to designate the chief executive officer
of the company, or (iii) any person who serves as a director or as a chief executive officer of the company. As of the date of this
annual report, we have not yet appointed our internal auditor.
Duties
of Directors and Officers and Approval of Specified Related Party Transactions under the Israeli Companies Law
Fiduciary
Duties of Office Holders
The
Companies Law imposes a duty of care and a fiduciary duty on all office holders of a company. The duty of care of an office holder is
based on the duty of care set forth in connection with the tort of negligence under the Israeli Torts Ordinance (New Version) 5728-1968.
This duty of care requires an office holder to act with the degree of proficiency with which a reasonable office holder in the same position
would have acted under the same circumstances. The duty of care includes, among other things, a duty to use reasonable means, in light
of the circumstances, to obtain:
| • |
information on the business advisability of a given action brought for his or her approval or performed
by virtue of his or her position; and |
| • |
all other important information pertaining to such action. |
The
fiduciary duty incumbent on an office holder requires him or her to act in good faith and for the benefit of the company, and includes,
among other things, the duty to:
| • |
refrain from any act involving a conflict of interest between the performance of his or her duties in
the company and his or her other duties or personal affairs; |
| • |
refrain from any activity that is competitive with the business of the company; |
| • |
refrain from exploiting any business opportunity of the company for the purpose of gaining a personal
advantage for himself or herself or others; and |
109
| • |
disclose to the company any information or documents relating to the company’s affairs which the
office holder received as a result of his or her position as an office holder. |
We
may approve an act specified above which would otherwise constitute a breach of the office holder’s fiduciary duty, provided that
the office holder acted in good faith, the act or its approval does not harm the company, and the office holder discloses his or her personal
interest a sufficient time before the approval of such act. Any such approval is subject to the terms of the Companies Law, setting forth,
among other things, the appropriate bodies of the company entitled to provide such approval, and the methods of obtaining such approval.
Disclosure
of Personal Interests of an Office Holder and Approval of Transactions
The
Companies Law requires that an office holder promptly disclose to the company any personal interest that he or she may have and all related
material information or documents relating to any existing or proposed transaction by the company. An interested office holder’s
disclosure must be made promptly and in any event no later than the first meeting of the board of directors at which the transaction is
considered. An office holder is not obliged to disclose such information if the personal interest of the office holder derives solely
from the personal interest of his or her relative in a transaction that is not considered an extraordinary transaction.
Under
the Companies Law, once an office holder has complied with the above disclosure requirement, a company may approve a transaction between
the company and the office holder or a third party in which the office holder has a personal interest. However, a company may not approve
a transaction or action that is not to the company’s benefit.
Under
the Companies Law, unless the articles of association of a company provide otherwise, a transaction with an office holder or with a third
party in which the office holder has a personal interest, which is not an extraordinary transaction, requires approval by the board of
directors. Our amended and restated articles of association provide that such a transaction, which is not an extraordinary transaction,
shall be approved by the board of directors or a committee of the board of directors or any other body or person (which has no personal
interest in the transaction) authorized by the board of directors. If the transaction considered is an extraordinary transaction with
an office holder or third party in which the office holder has a personal interest, then audit committee approval is required prior to
approval by the board of directors. For the approval of compensation arrangements with directors and executive officers, see “Item
6. Directors, Senior Management and Employees - C. Board Practices – Duties of Directors and Officers and Approval of Specified
Related Party Transactions under the Israeli Companies Law – Fiduciary Duties of Office Holders.”
Any
persons who have a personal interest in the approval of a transaction that is brought before a meeting of the board of directors or the
audit committee may not be present at the meeting or vote on the matter. However, if the chairman of the board of directors or the chairman
of the audit committee has determined that the presence of an office holder with a personal interest is required, such office holder may
be present at the meeting for the purpose of presenting the matter. Notwithstanding the foregoing, a director who has a personal interest
may be present at the meeting and vote on the matter if a majority of the directors or members of the audit committee have a personal
interest in the approval of such transaction. If a majority of the directors at a board of directors meeting have a personal interest
in the transaction, such transaction also requires approval of the shareholders of the company.
A
“personal interest” is defined under the Companies Law as the personal interest of a person in an action or in a transaction
of the company, including the personal interest of such person’s relative or the interest of any other corporate body in which the
person and/or such person’s relative is a director or general manager, a 5% shareholder or holds 5% or more of the voting rights,
or has the right to appoint at least one director or the general manager, but excluding a personal interest stemming solely from the fact
of holding shares in the company. A personal interest also includes (1) a personal interest of a person who votes according to a proxy
of another person, including in the event that the other person has no personal interest, and (2) a personal interest of a person who
gave a proxy to another person to vote on his or her behalf regardless of whether or not the discretion of how to vote lies with the person
voting.
110
An
“extraordinary transaction” is defined under the Companies Law as any of the following:
| • |
a transaction other than in the ordinary course of business; |
| • |
a transaction that is not on market terms; or |
| • |
a transaction that may have a material impact on the company’s profitability, assets or liabilities.
|
Disclosure
of Personal Interests of a Controlling Shareholder and Approval of Transactions
The
Companies Law also requires that a controlling shareholder promptly disclose to the company any personal interest that he or she may have
and all related material information or documents relating to any existing or proposed transaction by the company. A controlling shareholder’s
disclosure must be made promptly and, in any event, no later than the first meeting of the board of directors at which the transaction
is considered. Extraordinary transactions with a controlling shareholder or in which a controlling shareholder has a personal interest,
including a private placement in which a controlling shareholder has a personal interest, and the terms of engagement of the company,
directly or indirectly, with a controlling shareholder or a controlling shareholder’s relative (including through a corporation
controlled by a controlling shareholder), regarding the company’s receipt of services from the controlling shareholder, and if such
controlling shareholder is also an office holder or employee of the company, regarding his or her terms of employment, require the approval
of each of (i) the audit committee or the compensation committee with respect to the terms of the engagement of the company, (ii)
the board of directors and (iii) the shareholders, in that order. In addition, the shareholder approval must fulfill one of the following
requirements:
| • |
a majority of the shares held by shareholders who have no personal interest in the transaction and are
voting at the meeting must be voted in favor of approving the transaction, excluding abstentions; or |
| • |
the shares voted by shareholders who have no personal interest in the transaction who vote against the
transaction represent no more than two percent (2%) of the voting rights in the company. |
In
addition, an extraordinary transaction with a controlling shareholder or in which a controlling shareholder has a personal interest, and
an engagement of the company, directly or indirectly, with a controlling shareholder or a controlling shareholder’s relative (including
through a corporation controlled by a controlling shareholder), regarding the company’s receipt of services from the controlling
shareholder, and if such controlling shareholder is also an office holder or employee of the company, regarding his or her terms of employment,
in each case with a term of more than three years requires the abovementioned approval every three years, however, transactions not involving
the receipt of services or compensation can be approved for a longer term, provided that the audit committee determines that such longer
term is reasonable under the circumstances. In addition, transactions with a controlling shareholder or a controlling shareholder’s
relative who serves as an officer in a company, directly or indirectly (including through a corporation under his control), involving
the receipt of services by a company or their compensation can have a term of five years from the company's initial public offering under
certain circumstances.
The
Companies Law requires that every shareholder that participates, in person, by proxy or by voting instrument, in a vote regarding a transaction
with a controlling shareholder, must indicate in advance or in the ballot whether or not that shareholder has a personal interest in the
vote in question. Failure to so indicate will result in the invalidation of that shareholder’s vote.
111
Disclosure
of Compensation of Executive Officers
For
so long as we qualify as a foreign private issuer, we are not required to comply with the proxy rules applicable to U.S. domestic companies,
including the requirement applicable to emerging growth companies to disclose the compensation of our chief executive officer and other
two most highly compensated executive officers on an individual, rather than an aggregate, basis. Nevertheless, regulations promulgated
under the Companies Law will require us, after we became a public company, to disclose the annual compensation of our five most highly
compensated office holders on an individual basis, rather than on an aggregate basis. This disclosure will not be as extensive as that
required of a U.S. domestic issuer.
Compensation
of Directors and Executive Officers
Directors.
Under the Companies Law, the compensation of our directors requires the approval of our compensation committee, the subsequent approval
of the board of directors and, unless exempted under regulations promulgated under the Companies Law, the approval of the shareholders
at a general meeting. If the compensation of our directors is inconsistent with our stated compensation policy, then, those provisions
that must be included in the compensation policy according to the Companies Law must have been considered by the compensation committee
and board of directors, and shareholder approval will also be required, provided that:
| • |
at least a majority of the shares held by all shareholders who are not controlling shareholders and do
not have a personal interest in such matter, present and voting at such meeting, are voted in favor of the compensation package, excluding
abstentions; or |
| • |
the total number of shares of non-controlling shareholders and shareholders who do not have a personal
interest in such matter voting against the compensation package does not exceed two percent (2%) of the aggregate voting rights in the
company. |
Executive
officers other than the chief executive officer. The Companies Law requires
the approval of the compensation of a public company’s executive officers (other than the chief executive officer) in the following
order: (i) the compensation committee, (ii) the company’s board of directors, and (iii) if such compensation arrangement is inconsistent
with the company’s stated compensation policy, the company’s shareholders (by a special majority vote as discussed above with
respect to the approval of director compensation). However, if the shareholders of the company do not approve a compensation arrangement
with an executive officer that is inconsistent with the company’s stated compensation policy, the compensation committee and board
of directors may override the shareholders’ decision if each of the compensation committee and the board of directors provide detailed
reasons for their decision.
Chief
executive officer. Under the Companies Law, the compensation of a public
company’s chief executive officer is required to be approved by: (i) the company’s compensation committee; (ii) the company’s
board of directors, and (iii) the company’s shareholders (by a special majority vote as discussed above with respect to the approval
of director compensation). However, if the shareholders of the company do not approve the compensation arrangement with the chief executive
officer, the compensation committee and board of directors may override the shareholders’ decision if each of the compensation committee
and the board of directors provide a detailed report for their decision. The approval of each of the compensation committee and the board
of directors should be in accordance with the company’s stated compensation policy; however, in special circumstances, they may
approve compensation terms of a chief executive officer that are inconsistent with such policy provided that they have considered those
provisions that must be included in the compensation policy according to the Companies Law and that shareholder approval was obtained
(by a special majority vote as discussed above with respect to the approval of director compensation). In addition, the compensation committee
may waive the shareholder approval requirement with regards to the approval of the engagement terms of a candidate for the chief executive
officer position, if they determine that the compensation arrangement is consistent with the company’s stated compensation policy,
and that the chief executive officer did not have a prior business relationship with the company or a controlling shareholder of the company
and that subjecting the approval of the engagement to a shareholder vote would impede the company’s ability to employ the chief
executive officer candidate.
112
Duties
of Shareholders
Under
the Companies Law, a shareholder has a duty to refrain from abusing its power in the company and to act in good faith and in an acceptable
manner in exercising its rights and performing its obligations to the company and other shareholders, including, among other things, when
voting at meetings of shareholders on the following matters:
| • |
an amendment to the articles of association; |
| • |
an increase in the company’s authorized share capital; |
| • |
a merger; and |
| • |
the approval of related party transactions and acts of office holders that require shareholder approval.
|
A
shareholder also has a general duty to refrain from discriminating against other shareholders.
The
remedies generally available upon a breach of contract will also apply to a breach of the shareholder duties mentioned above, and in the
event of discrimination against other shareholders, additional remedies may be available to the injured shareholder.
In
addition, any controlling shareholder, any shareholder that knows that its vote can determine the outcome of a shareholder vote and any
shareholder that, under a company’s articles of association, has the power to appoint or prevent the appointment of an office holder,
or any other power with respect to a company, is under a duty to act with fairness towards the company. The Companies Law does not describe
the substance of this duty except to state that the remedies generally available upon a breach of contract will also apply in the event
of a breach of the duty to act with fairness, taking the shareholder’s position in the company into account.
Approval
of Private Placements
Under
the Companies Law and the regulations promulgated thereunder, a private placement of securities does not require approval at a general
meeting of the shareholders of a company; provided however, that in special circumstances, such as a private placement which is intended
to obviate the need to conduct a special tender offer (see “Item 10. Additional Information— Memorandum of Association –
Acquisitions under Israeli Law”) or a private placement which qualifies as a related party transaction (see “Item 6. Directors,
Senior Management and Employees - C. Board Practices – Duties of Directors and Officers and Approval of Specified Related Party
Transactions under the Israeli Companies Law – Fiduciary Duties of Office Holders”), approval at a general meeting of
the shareholders of a company is required.
Exculpation, Insurance and Indemnification of Directors and Officers
Under
the Companies Law, a company may not exculpate an office holder from liability for a breach of the fiduciary duty. An Israeli company
may exculpate an office holder in advance from liability to the company, in whole or in part, for damages caused to the company as a result
of a breach of duty of care but only if a provision authorizing such exculpation is included in its articles of association. Our amended
and restated articles of association include such a provision. The company may not exculpate in advance a director from liability arising
due to the breach of his or her duty of care in the event of a prohibited dividend or distribution to shareholders.
Under
the Companies Law and the Israeli Securities Law, 5728-1968, or the Securities Law, a company may indemnify an office holder in respect
of the following liabilities, payments and expenses incurred for acts performed by him or her as an office holder, either in advance of
an event or following an event, provided its articles of association include a provision authorizing such indemnification:
| • |
a monetary liability incurred by or imposed on the office holder in favor of another person pursuant
to a court judgment, including pursuant to a settlement confirmed as judgment or arbitrator’s decision approved by a competent court.
However, if an undertaking to indemnify an office holder with respect to such liability is provided in advance, then such an undertaking
must be limited to events which, in the opinion of the board of directors, can be foreseen based on the company’s activities when
the undertaking to indemnify is given, and to an amount or according to criteria determined by the board of directors as reasonable under
the circumstances, and such undertaking shall detail the abovementioned foreseen events and amount or criteria; |
113
| • |
reasonable litigation expenses, including reasonable attorneys’ fees, which were incurred by the
office holder as a result of an investigation or proceeding filed against the office holder by an authority authorized to conduct such
investigation or proceeding, provided that such investigation or proceeding was either (i) concluded without the filing of an indictment
against such office holder and without the imposition on him of any monetary obligation in lieu of a criminal proceeding; (ii) concluded
without the filing of an indictment against the office holder but with the imposition of a monetary obligation on the office holder in
lieu of criminal proceedings for an offense that does not require proof of criminal intent; or (iii) in connection with a monetary sanction;
|
| • |
a monetary liability imposed on the office holder in favor of a payment for a breach offended at an Administrative
Procedure (as defined below) as set forth in Section 52(54)(a)(1)(a) to the Securities Law; |
| • |
expenses expended by the office holder with respect to an Administrative Procedure under the Securities
Law, including reasonable litigation expenses and reasonable attorneys’ fees; |
| • |
reasonable litigation expenses, including attorneys’ fees, incurred by the office holder or which
were imposed on the office holder by a court (i) in a proceeding instituted against him or her by the company, on its behalf, or by a
third party, (ii) in connection with criminal indictment of which the office holder was acquitted, or (iii) in a criminal indictment which
the office holder was convicted of an offense that does not require proof of criminal intent; and |
| • |
any other obligation or expense in respect of which it is permitted or will be permitted under applicable
law to indemnify an office holder, including, without limitation, matters referenced in Section 56H(b)(1) of the Securities Law.
|
An
“Administrative Procedure” is defined as a procedure pursuant to chapters H3 (Monetary Sanction by the Israeli Securities
Authority), H4 (Administrative Enforcement Procedures of the Administrative Enforcement Committee) or I1 (Arrangement to prevent Procedures
or Interruption of procedures subject to conditions) to the Securities Law.
Under
the Companies Law and the Securities Law, a company may insure an office holder against the following liabilities incurred for acts performed
by him or her as an office holder if and to the extent provided in the company’s articles of association:
| • |
a breach of the fiduciary duty to the company, provided that the office holder acted in good faith and
had a reasonable basis to believe that the act would not harm the company; |
| • |
a breach of duty of care to the company or to a third party, to the extent such a breach arises out of
the negligent conduct of the office holder; |
| • |
a monetary liability imposed on the office holder in favor of a third party; |
| • |
a monetary liability imposed on the office holder in favor of an injured party at an Administrative Procedure
pursuant to Section 52(54)(a)(1)(a) of the Securities Law; and |
| • |
expenses incurred by an office holder in connection with an Administrative Procedure, including reasonable
litigation expenses and reasonable attorneys’ fees. |
114
Under
the Companies Law, a company may not indemnify, exculpate or insure an office holder against any of the following:
| • |
a breach of the fiduciary duty, except for indemnification and insurance for a breach of the fiduciary
duty to the company to the extent that the office holder acted in good faith and had a reasonable basis to believe that the act would
not prejudice the company; |
| • |
a breach of duty of care committed intentionally or recklessly, excluding a breach arising out of the
negligent conduct of the office holder; |
| • |
an act or omission committed with intent to derive illegal personal benefit; or |
| • |
a fine or forfeit levied against the office holder. |
Under
the Companies Law, exculpation, indemnification and insurance of office holders must be approved by the compensation committee and the
board of directors and, with respect to directors or controlling shareholders, their relatives and third parties in which controlling
shareholders have a personal interest, also by the shareholders.
Our
amended and restated articles of association permit us to exculpate, indemnify and insure our office holders to the fullest extent permitted
or to be permitted by law. Our office holders are currently covered by a directors’ and officers’ liability insurance policy.
As of the date of this annual report, no claims for directors’ and officers’ liability insurance have been filed under this
policy and we are not aware of any pending or threatened litigation or proceeding involving any of our office holders, including our directors,
in which indemnification is sought.
See
"Item 7. Major Shareholders and Related Party Transactions – B. Related Party Transactions - Directors and Officers Insurance Policy
and Indemnification Agreements" for information regarding letters of indemnification to directors and officers of the Company.
D. Employees
As
of December 31, 2021, we had 53 employees, all of whom are located in Israel.
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As of December 31, |
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2019 |
2020 |
2021 |
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Company |
Company |
Company |
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Employees |
Consultants |
Employees |
Consultants |
Employees |
Consultants |
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Management |
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|
9 |
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|
9 |
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|
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|
9 |
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Research and development
and other |
|
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52 |
|
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56 |
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44 |
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While
none of our employees are party to a collective bargaining agreement, certain provisions of the collective bargaining agreements between
the Histadrut (General Federation of Labor in Israel) and the Coordination Bureau of Economic Organizations (including the Industrialists’
Associations) are applicable to our employees by order of the Israel Ministry of Labor. These provisions primarily concern the length
of the workday, minimum daily wages for professional workers, pension fund benefits for all employees, insurance for work-related accidents,
procedures for dismissing employees, determination of severance pay and other conditions of employment. We generally provide our employees
with benefits and working conditions beyond the required minimums.
We
have never experienced any employment-related work stoppages and believe our relationship with our employees is good.
115
E.
Share Ownership
For
information regarding the share ownership of our directors and executive officers, please see “Item 7. Major Shareholders and Related
Party Transactions – A. Major Shareholders.”
Award
Plans
2014
Share Incentive Plan
On
December 2, 2014, we adopted the 2014 Share Incentive Plan, or the Plan, and, in connection with our initial public offering,
we amended and restated the Plan which became effective immediately after the pricing of our initial public offering. The Plan is intended
to afford an incentive to our and any of our affiliate’s employees, directors, officers, consultants, advisors and any other person
or entity who provides services to the Company, to continue as service providers, to increase their efforts on our and our affiliates
behalf and to promote our success, by providing such persons with opportunities to acquire a proprietary interest in us.
The
number of shares that may be issued under the Plan is subject to adjustment if particular capital changes affect our share capital or
such other number as our board of directors may determine from time to time. Ordinary shares subject to outstanding awards under the Plan
that subsequently expire, are cancelled, forfeited or terminated for any reason before being exercised will be automatically, and without
any further action, returned to the “pool” of reserved shares and will again be available for grant under the Plan.
As of February 26, 2021, we had an aggregate of 929,415 ordinary shares available for issuance
under the Plan (including ordinary shares underlying outstanding options and restricted share units).
A
share option is the right to purchase a specified number of ordinary shares in the future at a specified exercise price and subject to
the other terms and conditions specified in the option agreement and the Plan. The exercise price of each share option granted under the
Plan will be determined in accordance with the limitations set forth under the Plan. The exercise price of any share options granted under
the Plan may be paid in cash, through the surrender of ordinary shares by the option holder or any other method that may be approved by
our compensation committee, which may include procedures for cashless exercise.
Our
compensation committee may also grant, or recommend that our board of directors grant, other forms of equity incentive awards under the
Plan, such as restricted shares, restricted share units, and other forms of share-based compensation.
Israeli
participants in the Plan may be granted options subject to Section 102 of the Israeli Income Tax Ordinance (New Version), 1961, or the
Israeli Tax Ordinance. Section 102 of the Israeli Tax Ordinance allows employees, directors and officers who are not controlling shareholders
(as defined for those purposes under the Israeli Tax Ordinance) and are considered Israeli residents to receive favorable tax treatment
for compensation in the form of shares or options. Our non-employee service providers and controlling shareholders may only be granted
options under another section of the Israeli Tax Ordinance, which does not provide for similar tax benefits. Section 102 includes two
alternatives for tax treatment involving the issuance of options or shares to a trustee for the benefit of the grantees and also includes
an additional alternative for the issuance of options or shares directly to the grantee. The most favorable tax treatment for the grantees
is under Section 102(b)(2) of the Israeli Tax Ordinance, the issuance to a trustee under the “capital gain track.” However,
under this track we are not allowed to deduct an expense with respect to the issuance of the options or shares.
In
addition, any options granted under the Plan to participants in the United States will be either “incentive stock options,”
which may be eligible for special tax treatment under the Code, or options other than incentive stock options (referred to as “nonqualified
stock options” under the Plan). The type of option granted under the Plan and specific terms and conditions are, in each case, determined
by our compensation committee or our board of directors and set forth in the applicable option agreement.
116
Our
compensation committee will administer the Plan, or if determined otherwise by our board of directors, the Plan will be administered by
our board of directors or other designated committee on its behalf. Even if the compensation committee or any other committee was appointed
by our board of directors in order to administrate the Plan, our board of directors may, subject to any legal limitations, exercise any
powers or duties of the compensation committee or any other committee concerning the Plan. The compensation committee will, among others,
select which eligible persons will receive options or other awards under the Plan and will determine, or recommend to our board of directors,
the number of ordinary shares covered by those options or other awards, the terms under which such options or other awards may be exercised
(however, options generally may not be exercised later than ten years from the grant date of an option) or may be settled or paid, and
the other terms and conditions of such options and other awards under the Plan. All awards granted under the Plan shall not be transferable
other than by will or by the laws of descent and distribution, unless otherwise determined by our compensation committee.
To
the extent permitted under applicable law, our compensation committee will have the authority to accelerate the vesting of any outstanding
awards at such time and under such circumstances as it, in its sole discretion, deems appropriate. In the event of a change of control,
as defined in the Plan, any award then outstanding shall be assumed or an equivalent award shall be substituted by the successor corporation
of the merger or sale or any parent or affiliate thereof as determined by our board of directors. In the event that the awards are not
assumed or substituted, our compensation committee may, in its discretion, accelerate the vesting, exercisability of the outstanding award,
or provide for the cancellation of such award and payment of cash, as determined to be fair in the circumstances.
Subject
to particular limitations specified in the Plan and under applicable law, our board of directors may amend or terminate the Plan, and
the compensation committee may amend awards outstanding under the Plan. In addition, an amendment to the Plan that requires shareholder
approval under applicable law will not be effective unless approved by the requisite vote of shareholders. In addition, in general, no
suspension, termination, modification or amendment of the Plan may adversely affect any award previously granted without the written consent
of grantees holding a majority in interest of the awards so affected. The Plan will continue in effect until all ordinary shares available
under the Plan are delivered and all restrictions on those shares have lapsed, unless the Plan is terminated earlier by our board of directors.
No awards may be granted under the Plan on or after the tenth anniversary of the date of adoption of the plan unless our board of directors
chooses to extend the term.
Any
equity award to an office holder, director or controlling shareholder, whether under the Plan or otherwise, may be subject to further
approvals in addition to the approval of the compensation committee as described above. As of December 31, 2021, options to purchase
1,329,604 ordinary shares, at a weighted average exercise price of 5.95 per share, were outstanding under our Plan.
ITEM
7. MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
A.
Major Shareholders
The
following table sets forth information with respect to the beneficial ownership of our ordinary shares as of March 1, 2022 by:
| • |
each person or entity known by us to own beneficially 5% or more of our outstanding ordinary shares;
|
| • |
each of our directors, executive officers and director nominees; and |
| • |
all of our executive officers, directors and director nominees as a group. |
The
beneficial ownership of our ordinary shares is determined in accordance with the rules of the SEC. Under these rules, a person is deemed
to be a beneficial owner of a security if that person has or shares voting power, which includes the power to vote or to direct the voting
of the security, or investment power, which includes the power to dispose of or to direct the disposition of the security. For purposes
of the table below, we deem ordinary shares issuable pursuant to options that are currently exercisable or exercisable within 60 days
as of March 1, 2022, if any, to be outstanding and to be beneficially owned by the person holding the options or warrants for the purposes
of computing the percentage ownership of that person, but we do not treat them as outstanding for the purpose of computing the percentage
ownership of any other person. The percentage of ordinary shares beneficially owned is based on 23,127,669ordinary shares outstanding
as of March 1, 2022.
117
Except
where otherwise indicated, we believe, based on information furnished to us by such owners, that the beneficial owners of the ordinary
shares listed below have sole investment and voting power with respect to such shares.
None
of our shareholders has different voting rights from other shareholders. We are not aware of any arrangement that may, at a subsequent
date, result in a change of control of our company.
Unless
otherwise noted below, the address for each beneficial owner is c/o Sol-Gel Technologies Ltd., 7 Golda Meir St., Weizmann Science
Park, Ness Ziona, 7403650 Israel.
|
|
Shares Beneficially
Owned |
|||||||
|
Name of Beneficial Owner |
Number |
Percentage |
||||||
|
5% or greater shareholders
|
||||||||
|
M. Arkin Dermatology Ltd. (1)
|
14,432,266
|
62.40 |
% | |||||
|
Migdal Insurance & Financial Holdings Ltd.(2) |
1,239,103 |
5.36 |
% | |||||
|
Phoenix Holdings Ltd. (3) |
2,574,922 |
11.13 |
% | |||||
|
Directors and executive officers |
||||||||
|
Moshe Arkin (1)
|
14,518,266 |
62.77 |
% | |||||
|
Alon Seri-Levy (4)
|
322,202 |
1.39 |
% | |||||
|
Gilad Mamlok |
* |
* |
||||||
|
Ofer Toledano |
* |
* |
||||||
|
Ofra Levy-Hacham
|
* |
* |
||||||
|
Karine Neimann |
* |
* |
||||||
|
Itzik Yosef |
* |
* |
||||||
|
Dubi Zamir |
* |
* |
||||||
|
Nissim Bilman |
* |
* |
||||||
|
Itai Arkin |
* |
* |
||||||
|
Ran Gottfried |
* |
* |
||||||
|
Jerrold S. Gattegno
|
* |
* |
||||||
|
Shmuel Ben Zvi |
* |
* |
||||||
|
Hani Lerman |
* |
* |
||||||
|
Yaffa Krindel Sieradzki
|
* |
* |
||||||
|
Jonathan Siegel
|
* |
* |
||||||
|
All directors and executive officers as a group
(17 persons) |
15,376,420 |
66.51 |
% | |||||
| * |
Less than 1%. |
| (1) |
Based on the Schedule 13D/A filed with the SEC on April 20, 2021, Arkin Dermatology directly owns 14,432,266
ordinary shares. Mr. Moshe Arkin, the chairman of our board of directors, is the sole shareholder and sole director of Arkin Dermatology
and may therefore be deemed to be the indirect beneficial owner of the ordinary shares owned directly by Arkin Dermatology. In addition,
Mr. Moshe Arkin directly owns 86,000 ordinary shares. |
118
| (2) |
Based on the Schedule 13G/A filed with the SEC on February 2, 2022, the ordinary shares are beneficially
owned by, among others, (i) provident funds, mutual funds, pension funds and insurance policies, which are managed by direct and indirect
subsidiaries of Migdal Insurance & Financial Holdings Ltd, each of which operates under independent management and makes independent
voting and investment decisions, (ii) companies for the management of funds for joint investments in trusteeship, each of which operates
under independent management and makes independent voting and investment decisions, and (iii) their own account (Nostro account).
|
| (3) |
Based on the Schedule 13G/A filed with the SEC on February 11, 2021, the ordinary shares are beneficially
owned by various direct or indirect, majority or wholly-owned subsidiaries of the Phoenix Holding Ltd., or the Subsidiaries.
The Subsidiaries manage their own funds and/or the funds of others, including for holders of exchange-traded notes or various insurance
policies, members of pension or provident funds, unit holders of mutual funds, and portfolio management clients. Each of the Subsidiaries
operates under independent management and makes its own independent voting and investment decisions. |
| (4) |
Consists of options to purchase 285,188 ordinary shares exercisable within 60 days of March 1, 2022.
The exercise price of these options ranges between $1.59 and $11.21 per share and the options expire between March 2025 and May 2028.
|
Record
Holders
As
of March 1, 2022, we had one holder of record of our ordinary shares in the United States, consisting of Cede & Co., the nominee of
The Depository Trust Company. That shareholder held, in the aggregate, 12,189,697 ordinary shares, representing approximately 52% of the
outstanding ordinary shares as of March 1, 2022. The number of record holders in the United States is not representative of the number
of beneficial holders nor is it representative of where such beneficial holders are resident since many of these ordinary shares were
held by brokers or other nominees.
B.
Related Party Transactions
Private
Placement with Our Controlling Shareholder
On
April 13, 2020, we closed a $5.0 million private placement with our controlling shareholder, Arkin Dermatology, which agreed to make this
private investment concurrently with the February 2020 public offering. In the private placement, we issued to Arkin Dermatology 454,628
ordinary shares and warrants to purchase up to 363,702 ordinary shares at a combined price of $11.00 per ordinary share and
accompanying warrant to purchase 0.80 of an ordinary share, which is the same price as the public offering price of the ordinary shares
and accompanying warrants issued in the Company’s February 2020 public offering. The warrants issued to Arkin Dermatology have
an initial exercise price of $14.00 per share, subject to certain adjustments, and will expire on February 19, 2023, which
are on the same terms as the warrants issued in the February 2020 public offering.
Directors
and Officers Insurance Policy and Indemnification Agreements
Our
amended and restated articles of association permit us to exculpate, indemnify and insure each of our directors and officers to the fullest
extent permitted by the Companies Law. We have obtained Directors and Officers insurance for each of our executive officers and directors.
For further information, see “Item 6 C. – Board Practices – Exculpation, Insurance and Indemnification of Directors
and Officers”.
119
We
entered into agreements with each of our current directors and officers exculpating them from a breach of their duty of care to us to
the fullest extent permitted by law, subject to limited exceptions, and undertaking to indemnify them to the fullest extent permitted
by law, subject to limited exceptions, including, with respect to liabilities resulting from our initial public offering, to the extent
that these liabilities are not covered by insurance. This indemnification is limited, with respect to any monetary liability imposed in
favor of a third party, to events determined as foreseeable by the board of directors based on our activities. The maximum aggregate amount
of indemnification that we may pay to our directors and officers based on such indemnification agreement is the greater of (1) 25% of
our shareholders’ equity pursuant to our audited financial statements for the year preceding the year in which the event in connection
of which indemnification is sought occurred, and (2) $40 million (as may be increased from time to time by shareholders’ approval).
Such indemnification amounts are in addition to any insurance amounts. Each director or officer who agrees to receive this letter of indemnification
also gives his approval to the termination of all previous letters of indemnification that we have provided to him or her in the past,
if any.
Registration
Rights Agreement
We
entered into a registration rights agreement, pursuant to which we granted demand registration rights, short-form registration rights
and piggyback registration rights to Arkin Dermatology, our controlling shareholder. All fees, costs and expenses of underwritten registrations
are expected to be borne by us. No registration rights to be granted pursuant to this registration rights agreement shall be exercisable
until expiration of the 180-day lock-up agreement entered into by Arkin Dermatology with the underwriters in connection with our initial
public offering.
C.
Interests of Experts and Counsel
Not applicable.
ITEM
8. FINANCIAL INFORMATION
A.
Financial Statements and Other Financial Information
The
financial statements required by this item are found at the end of this annual report, beginning on page F-2.
Legal
Proceedings
We
are not currently a party to any material legal proceedings.
Dividend
Policy
We
have never declared or paid any cash dividends on our ordinary shares and we anticipate that, for the foreseeable future, we will retain
any future earnings to support operations and to finance the growth and development of our business. Therefore, we do not expect to pay
cash dividends for at least the next several years.
The
distribution of dividends may also be limited by the Companies Law, which permits the distribution of dividends only out of retained earnings
or earnings derived over the two most recent fiscal years, whichever is higher, provided that there is no reasonable concern that payment
of a dividend will prevent a company from satisfying its existing and foreseeable obligations as they become due. Our amended and restated
articles of association provide that dividends will be paid at the discretion of, and upon resolution by, our board of directors, subject
to the provisions of the Companies Law.
B.
Significant Changes
Except
as otherwise disclosed in this annual report, no significant change has occurred since December 31, 2021.
120
ITEM
9. THE OFFER AND LISTING
A.
Offer and Listing Details
Our
Ordinary Shares have been trading on The Nasdaq Global Market under the symbol “SLGL” since February 1, 2018. Prior to that
date, there was no public trading market for our Ordinary Shares. Our initial public offering was priced at $12.00 per share on January
31, 2018.
On April 1, 2022, the last reported closing
price of our Ordinary Shares on The Nasdaq Global Market was $7.24 per share.
B.
Plan of Distribution
Not applicable.
C.
Markets
Our
Ordinary Shares are listed and traded on The Nasdaq Global Market under the symbol “SLGL”.
D.
Selling Shareholders
Not applicable.
E.
Dilution
Not applicable.
F.
Expenses of the Issue
Not applicable.
ITEM
10. ADDITIONAL INFORMATION
A.
Share Capital
Not applicable.
B.
Memorandum and Articles of Association
Registration
Number and Purposes of the Company
Our
registration number with the Israeli Registrar of Companies is 51-254469-3. Our purpose as set forth in our amended and restated articles
of association is to engage in any lawful activity.
Voting
Rights and Conversion
All
ordinary shares will have identical voting and other rights in all respects.
Transfer
of Shares
Our
fully paid ordinary shares are issued in registered form and may be freely transferred under our amended and restated articles of association,
unless the transfer is restricted or prohibited by another instrument, applicable law or the rules of a stock exchange on which the shares
are listed for trade. The ownership or voting of our ordinary shares by non-residents of Israel is not restricted in any way by our amended
and restated articles of association or the laws of the State of Israel, except for ownership by nationals of some countries that are,
or have been, in a state of war with Israel.
121
Liability
to Further Capital Calls
Our
board of directors may make, from time to time, such calls as it may deem fit upon shareholders with respect to any sum unpaid with respect
to shares held by such shareholders which is not payable at a fixed time. Such shareholder shall pay the amount of every call so made
upon him. Unless otherwise stipulated by the board of directors, each payment in response to a call shall be deemed to constitute a pro
rata payment on account of all shares with respect to which such call was made. A shareholder shall not be entitled to his rights as shareholder,
including the right to dividends, unless such shareholder has fully paid all the notices of call delivered to him, or which according
to our amended and restated articles of association are deemed to have been delivered to him, together with interest, linkage and expenses,
if any, unless otherwise determined by the board of directors.
Election
of Directors
Our
ordinary shares do not have cumulative voting rights for the election of directors. As a result, the holders of a majority of the voting
power represented at a shareholders meeting have the power to elect all of our directors, subject to the special approval requirements
for external directors under the Companies Law described under “Management — External Directors.”
Under
our amended and restated articles of association, our board of directors must consist of not less than five (5) but no more than nine
(9) directors, including any external directors required to be appointed by the Companies Law. Pursuant to our amended and restated articles
of association, other than the external directors, for whom special election requirements apply under the Companies Law, the vote required
to appoint a director is a simple majority vote of holders of our voting shares participating and voting at the relevant meeting. In addition,
our amended and restated articles of association allow our board of directors to appoint new directors to fill vacancies on the board
of directors if the number of directors is below the maximum number provided in our amended and restated articles. Furthermore, under
our amended and restated articles of association our directors other than external directors are divided into three classes with staggered
three-year terms. For a more detailed description on the composition of our board of election procedures of our directors, other than
our external directors, see “Item 6. Directors, Senior Management and Employees — C. Board Practices — Appointment of
Directors and Terms of Officers.” External directors are elected for an initial term of three years, may be elected for additional
terms of three years each under certain circumstances, and may be removed from office pursuant to the terms of the Companies Law. For
further information on the election and removal of external directors, see “Item 6. Directors, Senior Management and Employees —
C. Board Practices — External Directors — Election and Dismissal of External Directors.”
Dividend
and Liquidation Rights
We
may declare a dividend to be paid to the holders of our ordinary shares in proportion to their respective shareholdings. Under the Companies
Law, dividend distributions are determined by the board of directors and do not require the approval of the shareholders of a company
unless the company’s articles of association provide otherwise. Our amended and restated articles of association do not require
shareholder approval of a dividend distribution and provide that dividend distributions may be determined by our board of directors.
Pursuant
to the Companies Law, the distribution amount is limited to the greater of retained earnings or earnings generated over the previous two
years, according to our then last reviewed or audited financial statements, provided that the date of the financial statements is not
more than six months prior to the date of the distribution, or we may distribute dividends that do not meet such criteria only with court
approval. In each case, we are only permitted to distribute a dividend if our board of directors and the court, if applicable, determines
that there is no reasonable concern that payment of the dividend will prevent us from satisfying our existing and foreseeable obligations
as they become due.
In
the event of our liquidation, after satisfaction of liabilities to creditors, our assets will be distributed to the holders of our ordinary
shares in proportion to their shareholdings. This right, as well as the right to receive dividends, may be affected by the grant of preferential
dividend or distribution rights to the holders of a class of shares with preferential rights that may be authorized in the future.
122
Shareholder
Meetings
Under
Israeli law, we are required to hold an annual general meeting of our shareholders once every calendar year that must be held no later
than 15 months after the date of the previous annual general meeting. All general meetings other than the annual meeting of shareholders
are referred to in our amended and restated articles of association as special meetings. Our board of directors may call special meetings
whenever it sees fit, at such time and place, within or outside of Israel, as it may determine. In addition, the Companies Law provides
that our board of directors is required to convene a special meeting upon the written request of (i) any two of our directors or
one-quarter of the members of our board of directors or (ii) one or more shareholders holding, in the aggregate, either (a) 5% or more
of our outstanding issued shares and 1% or more of our outstanding voting power or (b) 5% or more of our outstanding voting power. This
is different from the Delaware General Corporation Law, or the DGCL, which allows such right of shareholders to be denied by a provision
in a company’s certificate of incorporation.
Under
Israeli law, one or more shareholders holding at least 1% of the voting rights at the general meeting may request that the board of directors
include a matter in the agenda of a general meeting to be convened in the future, provided that it is appropriate to discuss such a matter
at the general meeting.
Subject
to the provisions of the Companies Law and the regulations promulgated thereunder, shareholders entitled to participate and vote at general
meetings are the shareholders of record on a date to be decided by the board of directors, which may be between four and 40 days prior
to the date of the meeting. Furthermore, the Companies Law requires that resolutions regarding the following matters must be passed at
a general meeting of our shareholders:
| • |
amendments to our amended and restated articles of association; |
| • |
appointment or termination of our auditors; |
| • |
appointment of external directors; |
| • |
approval of certain related party transactions; |
| • |
increases or reductions of our authorized share capital; |
| • |
mergers; and |
| • |
the exercise of our board of director’s powers by a general meeting, if our board of directors
is unable to exercise its powers and the exercise of any of its powers is required for our proper management. |
Under
our amended and restated articles of association, we are not required to give notice to our registered shareholders pursuant to the Companies
Law, unless otherwise required by law. The Companies Law requires that a notice of any annual general meeting or special general meeting
be provided to shareholders at least 21 days prior to the meeting and if the agenda of the meeting includes the appointment or removal
of directors, the approval of transactions with office holders or interested or related parties, or an approval of a merger, or as otherwise
required under applicable law, notice must be provided at least 35 days prior to the meeting. Under the Companies Law, shareholders are
not permitted to take action by written consent in lieu of a meeting. Our amended and restated articles of association provide that a
notice of general meeting shall be published by us on Form 6-K at a date prior to the meeting as required by law.
123
Voting
Rights
Quorum
Requirements
Pursuant
to our amended and restated articles of association, holders of our ordinary shares have one vote for each ordinary share held on all
matters submitted to a vote before the shareholders at a general meeting. Under our amended and restated articles of association, the
quorum required for general meetings of shareholders must consist of at least two shareholders present in person or by proxy (including
by voting deed) holding 33 1∕3% or more of the voting rights in the Company, which complies with the quorum requirements for general
meetings under the Nasdaq Marketplace Rules. A meeting adjourned for lack of a quorum will generally be adjourned to the same day of the
following week at the same time and place, or to such other day, time or place as indicated by our board of directors if so specified
in the notice of the meeting. At the reconvened meeting, any number of shareholders present in person or by proxy shall constitute a lawful
quorum, instead of 33 1∕3% of the issued share capital as required under the Nasdaq Marketplace Rules.
Vote
Requirements
Our
amended and restated articles of association provide that all resolutions of our shareholders require a simple majority vote, unless otherwise
required by the Companies Law or by our amended and restated articles of association. Pursuant to our amended and restated articles of
association, an amendment to our amended and restated articles of association regarding any change of the composition or election procedures
of our directors will require a special majority vote (662∕3%). Under the Companies Law, each of (i) the approval of an extraordinary
transaction with a controlling shareholder and (ii) the terms of employment or other engagement of the controlling shareholder of the
company or such controlling shareholder’s relative (even if not extraordinary) requires the approval described above under “Management
— Fiduciary Duties and Approval of Specified Related Party Transactions and Compensation under Israeli Law — Disclosure of
Personal Interests of a Controlling Shareholder and Approval of Transactions.” Certain transactions with respect to remuneration
of our office holders and directors require further approvals described above under “Management — Fiduciary Duties and Approval
of Specified Related Party Transactions and Compensation under Israeli Law — Compensation of Directors and Executive Officers.”
Under our amended and restated articles of association, any change to the rights and privileges of the holders of any class of our shares
requires a simple majority of the class so affected (or such other percentage of the relevant class that may be set forth in the governing
documents relevant to such class), in addition to the ordinary majority vote of all classes of shares voting together as a single class
at a shareholder meeting. Another exception to the simple majority vote requirement is a resolution for the voluntary winding up, or an
approval of a scheme of arrangement or reorganization, of the company pursuant to Section 350 of the Companies Law, which requires the
approval of holders of 75% of the voting rights represented at the meeting, in person, by proxy or by voting deed and voting on the resolution.
Access
to Corporate Records
Under
the Companies Law, shareholders are provided access to minutes of our general meetings, our shareholders register and principal shareholders
register, our amended and restated articles of association, our financial statements and any document that we are required by law to file
publicly with the Israeli Companies Registrar or the Israel Securities Authority. In addition, shareholders may request to be provided
with any document related to an action or transaction requiring shareholder approval under the related party transaction provisions of
the Companies Law. We may deny this request if we believe it has not been made in good faith or if such denial is necessary to protect
our interest or protect a trade secret or patent.
Modification
of Class Rights
Under
the Companies Law and our amended and restated articles of association, the rights attached to any class of share, such as voting, liquidation
and dividend rights, may be amended by adoption of a resolution by the holders of a majority of the shares of that class present at a
separate class meeting, or otherwise in accordance with the rights attached to such class of shares, in addition to the ordinary majority
vote of all classes of shares voting together as a single class at a shareholder meeting, as set forth in our amended and restated articles
of association.
124
Registration
Rights
For
a discussion of registration rights we granted to our controlling shareholder in connection with the closing of our initial public offering,
please see “Item 7. Major Shareholders and Related Party Transactions – Related Party Transactions — Registration Rights
Agreement.”
Acquisitions
under Israeli Law
Full
Tender Offer
A
person wishing to acquire shares of an Israeli public company and who would as a result hold over 90% of the target company’s issued
and outstanding share capital is required by the Companies Law to make a tender offer to all of the company’s shareholders for the
purchase of all of the issued and outstanding shares of the company. A person wishing to acquire shares of a public Israeli company and
who would as a result hold over 90% of the issued and outstanding share capital of a certain class of shares is required to make a tender
offer to all of the shareholders who hold shares of the relevant class for the purchase of all of the issued and outstanding shares of
that class. If the shareholders who do not accept the offer hold less than 5% of the issued and outstanding share capital of the company
or of the applicable class, and more than half of the shareholders who do not have a personal interest in the offer accept the offer,
all of the shares that the acquirer offered to purchase will be transferred to the acquirer by operation of law. However, a tender offer
will also be accepted if the shareholders who do not accept the offer hold less than 2% of the issued and outstanding share capital of
the company or of the applicable class of shares.
Upon
a successful completion of such a full tender offer, any shareholder that was an offeree in such tender offer, whether such shareholder
accepted the tender offer or not, may, within six months from the date of acceptance of the tender offer, petition an Israeli court to
determine whether the tender offer was for less than fair value and that the fair value should be paid as determined by the court. However,
under certain conditions, the offeror may include in the terms of the tender offer that an offeree who accepted the offer will not be
entitled to petition the Israeli court as described above.
If
(a) the shareholders who did not respond or accept the tender offer hold at least 5% of the issued and outstanding share capital of the
company or of the applicable class or the shareholders who accept the offer constitute less than a majority of the offerees that do not
have a personal interest in the acceptance of the tender offer, or (b) the shareholders who did not accept the tender offer hold 2% or
more of the issued and outstanding share capital of the company (or of the applicable class), the acquirer may not acquire shares of the
company that will increase its holdings to more than 90% of the company’s issued and outstanding share capital or of the applicable
class from shareholders who accepted the tender offer.
Special
Tender Offer
The
Companies Law provides that an acquisition of shares of an Israeli public company must be made by means of a special tender offer if as
a result of the acquisition the purchaser would become a holder of 25% or more of the voting rights in the company. This requirement does
not apply if there is already another holder of at least 25% of the voting rights in the company. Similarly, the Companies Law provides
that an acquisition of shares in a public company must be made by means of a special tender offer if as a result of the acquisition the
purchaser would become a holder of more than 45% of the voting rights in the company, if there is no other shareholder of the company
who holds more than 45% of the voting rights in the company, subject to certain exceptions.
A
special tender offer must be extended to all shareholders of a company but the offeror is not required to purchase shares representing
more than 5% of the voting power attached to the company’s outstanding shares, regardless of how many shares are tendered by shareholders.
A special tender offer may be consummated only if (i) at least 5% of the voting power attached to the company’s outstanding
shares will be acquired by the offeror and (ii) the number of shares tendered in the offer exceeds the number of shares whose holders
objected to the offer (excluding the purchaser and its controlling shareholder, holders of 25% or more of the voting rights in the company
or any person having a personal interest in the acceptance of the tender offer or any other person acting on their behalf, including relatives
and entities under such person’s control). If a special tender offer is accepted, then the purchaser or any person or entity controlling
it or under common control with the purchaser or such controlling person or entity may not make a subsequent tender offer for the purchase
of shares of the target company and may not enter into a merger with the target company for a period of one year from the date of the
offer, unless the purchaser or such person or entity undertook to effect such an offer or merger in the initial special tender offer.
Under
the DGCL there are no provisions relating to mandatory tender offers.
125
Merger
The
Companies Law permits merger transactions if approved by each party’s board of directors and, unless certain requirements described
under the Companies Law are met, by a majority vote of each party’s shares, and, in the case of the target company, a majority vote
of each class of its shares voted on the proposed merger at a shareholders meeting.
For
purposes of the shareholder vote, unless a court rules otherwise, the merger will not be deemed approved if a majority of the votes of
the shares represented at the shareholders meeting that are held by parties other than the other party to the merger, or by any person
(or group of persons acting in concert) who holds (or hold, as the case may be) 25% or more of the voting rights or the right to appoint
25% or more of the directors of the other party, vote against the merger. If, however, the merger involves a merger with a company’s
own controlling shareholder or if the controlling shareholder has a personal interest in the merger, then the merger is instead subject
to the same special majority approval that governs all extraordinary transactions with controlling shareholders (as described under “Management
— Fiduciary Duties and Approval of Specified Related Party Transactions and Compensation under Israeli Law — Disclosure of
Personal Interests of a Controlling Shareholder and Approval of Transactions”).
If
the transaction would have been approved by the shareholders of a merging company but for the separate approval of each class or the exclusion
of the votes of certain shareholders as provided above, a court may still approve the merger upon the request of holders of at least 25%
of the voting rights of a company, if the court holds that the merger is fair and reasonable, taking into account the value to the parties
to the merger and the consideration offered to the shareholders of the company.
Upon
the request of a creditor of either party to the proposed merger, the court may delay or prevent the merger if it concludes that there
exists a reasonable concern that, as a result of the merger, the surviving company will be unable to satisfy the obligations of the merging
entities, and may further give instructions to secure the rights of creditors.
In
addition, a merger may not be consummated unless at least 50 days have passed from the date on which a proposal for approval of the merger
was filed by each party with the Israeli Registrar of Companies and at least 30 days have passed from the date on which the merger was
approved by the shareholders of each party.
Anti-Takeover
Measures under Israeli Law
The
Companies Law allows us to create and issue shares having rights different from those attached to our ordinary shares, including shares
providing certain preferred rights with respect to voting, distributions or other matters and shares having preemptive rights. As of the
date of this annual report, no preferred shares are authorized under our amended and restated articles of association. In the future,
if we do authorize, create and issue a specific class of preferred shares, such class of shares, depending on the specific rights that
may be attached to it, may have the ability to frustrate or prevent a takeover or otherwise prevent our shareholders from realizing a
potential premium over the market value of their ordinary shares. The authorization and designation of a class of preferred shares will
require an amendment to our amended and restated articles of association, which requires the prior approval of the holders of a majority
of the voting power attaching to our issued and outstanding shares at a general meeting. The convening of the meeting, the shareholders
entitled to participate and the majority vote required to be obtained at such a meeting will be subject to the requirements set forth
in the Companies Law as described above in “— Voting Rights.”
126
As
an Israeli company we are not subject to the provisions of Section 203 of the DGCL, which in general prohibits a publicly held Delaware
corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years
after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in
a prescribed manner. For purposes of Section 203, a “business combination” includes a merger, asset sale or other transaction
resulting in a financial benefit to the interested stockholder, and an “interested stockholder” is a person who, together
with affiliates and associates, owns, or within three years prior did own, 15% or more of the voting stock of a corporation.
Borrowing
Powers
Pursuant
to the Companies Law and our amended and restated articles of association, our board of directors may exercise all powers and take all
actions that are not required under law or under our amended and restated articles of association to be exercised or taken by our shareholders,
including the power to borrow money for company purposes.
Changes
in Capital
Our
amended and restated articles of association enable us to increase or reduce our share capital. Any such changes are subject to the provisions
of the Companies Law and must be approved by a resolution duly adopted by our shareholders at a general meeting. In addition, transactions
that have the effect of reducing capital, such as the declaration and payment of dividends in the absence of sufficient retained earnings
or profits, require the approval of both our board of directors and an Israeli court.
Transfer
Agent and Registrar
The
transfer agent and registrar for our ordinary shares is American Stock Transfer & Trust Company, LLC.
C.
Material Contracts
For
a description of other material agreements, please see "Item 4. Information on the Company – B. Business Overview."
D.
Exchange Controls
There
are currently no Israeli currency control restrictions on remittances of dividends on our ordinary shares, proceeds from the sale of the
shares or interest or other payments to non-residents of Israel, except for shareholders who are subjects of certain countries that are
considered to be in a state of war with Israel at such time.
E.
Taxation
Israeli
Tax Considerations and Government Programs
General
The
following is a summary of the material Israeli tax laws applicable to us, and some Israeli Government programs benefiting us. This section
also contains a discussion of some Israeli tax consequences to persons owning our ordinary shares. This summary does not discuss all the
aspects of Israeli tax law that may be relevant to a particular investor in light of his or her personal investment circumstances or to
some types of investors subject to special treatment under Israeli law. Examples of this kind of investor include traders in securities
or persons that own, directly or indirectly, 10% or more of our outstanding voting capital, all of whom are subject to special tax regimes
not covered in this discussion. Some parts of this discussion are based on new tax legislation which has not been subject to judicial
or administrative interpretation. The discussion should not be construed as legal or professional tax advice and does not cover all possible
tax considerations.
127
SHAREHOLDERS
ARE URGED TO CONSULT THEIR OWN TAX ADVISORS AS TO THE ISRAELI OR OTHER TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF
OUR ORDINARY SHARES, INCLUDING, IN PARTICULAR, THE EFFECT OF ANY FOREIGN, STATE OR LOCAL TAXES.
General
Corporate Tax Structure in Israel
Israeli
resident companies are generally subject to corporate tax at the rate of 23% in 2022. However, the effective tax rate payable by a company
that derives income from a Benefited Enterprise or a Preferred Enterprise (as discussed below) may be considerably less. Capital gains
derived by an Israeli resident company are subject to tax at the prevailing corporate tax rate.
Under
Israeli tax legislation, a corporation will be considered as an “Israeli resident company” if it meets one of the following:
(i) it was incorporated in Israel; or (ii) the control and management of its business are exercised in Israel.
Law
for the Encouragement of Industry (Taxes), 5729-1969
The
Law for the Encouragement of Industry (Taxes), 5729-1969, generally referred to as the Industry Encouragement Law, provides several tax
benefits for “Industrial Companies.”
The
Industry Encouragement Law defines an “Industrial Company” as a company resident in Israel and which was incorporated in Israel
of which 90% or more of its income in any tax year, other than income from defense loans, is derived from an “Industrial Enterprise”
owned by it and which is located in Israel. An “Industrial Enterprise” is defined as an enterprise whose principal activity
in a given tax year is industrial production.
The
following corporate tax benefits, among others, are available to Industrial Companies:
| • |
amortization over an eight-year period of the cost of purchased know-how and patents and rights to use
a patent and know-how which are used for the development or advancement of the Industrial Enterprise; |
| • |
under limited conditions, an election to file consolidated tax returns with related Israeli Industrial
Companies; and |
| • |
expenses related to a public offering are deductible in equal amounts over three years. |
Although
as of the date of this annual report, we do not have industrial production activities, we may qualify as an Industrial Company in the
future and may be eligible for the benefits described above.
Tax
Benefits and Grants for Research and Development
Israeli
tax law allows, under certain conditions, a tax deduction for expenditures, including capital expenditures, for the year in which they
are incurred. Expenditures are deemed related to scientific research and development projects, if:
| • |
The expenditures are approved by the relevant Israeli government ministry, determined by the field of
research; |
| • |
The research and development must be for the promotion of the company; and |
| • |
The research and development are carried out by or on behalf of the company seeking such tax deduction.
|
128
The
amount of such deductible expenses is reduced by the sum of any funds received through government grants for the financing of such scientific
research and development projects. No deduction under these research and development deduction rules is allowed if such deduction is related
to an expense invested in an asset depreciable under the general depreciation rules of the Israeli Tax Ordinance, 1961. Expenditures not
so approved are deductible in equal amounts over three years.
From
time to time we may apply to the IIA for approval to allow a tax deduction for all research and development expenses during the year incurred.
There can be no assurance that such application will be accepted.
Law
for the Encouragement of Capital Investments, 5719-1959
The
Law for the Encouragement of Capital Investments, 5719-1959, generally referred to as the Investment Law, provides certain incentives
for capital investments in production facilities (or other eligible assets) by “Industrial Enterprises” (as defined under
the Investment Law).
Tax
Benefits Prior to the 2005 Amendment
An
investment program that is implemented in accordance with the provisions of the Investment Law prior to an amendment that became effective
in April 2005, or the 2005 Amendment, referred to as an “Approved Enterprise,” is entitled to certain benefits. A company
that wished to receive benefits as an Approved Enterprise must have received approval from the Investment Center of the Israeli Ministry
of Economy and Industry, or the Investment Center. Each certificate of approval for an Approved Enterprise relates to a specific investment
program in the Approved Enterprise, delineated both by the financial scope of the investment and by the physical characteristics of the
facility or the asset.
In
general, an Approved Enterprise is entitled to receive a grant from the Government of Israel or an alternative package of tax benefits,
known as the alternative benefits track. The tax benefits from any certificate of approval relate only to taxable profits attributable
to the specific Approved Enterprise. Income derived from activity that is not integral to the activity of the Approved Enterprise does
not enjoy tax benefits.
In
addition, a company that has an Approved Enterprise program is eligible for further tax benefits if it qualifies as a Foreign Investors’
Company, or FIC, which is a company with a level of foreign investment, as defined in the Investment Law, of more than 25%. The level
of foreign investment is measured as the percentage of rights in the company (in terms of shares, rights to profits, voting and appointment
of directors), and of combined share and loan capital, that are owned, directly or indirectly, by persons who are not residents of Israel.
The determination as to whether a company qualifies as an FIC is made on an annual basis. We are currently not entitled to tax benefits
for Approved Enterprise.
Tax
Benefits Subsequent to the 2005 Amendment
The
2005 Amendment applies to new investment programs and investment programs commencing after 2004, but does not apply to investment programs
approved prior to April 1, 2005. The 2005 Amendment provides that terms and benefits included in any certificate of approval that
was granted before the 2005 Amendment became effective (April 1, 2005) will remain subject to the provisions of the Investment Law
as in effect on the date of such approval. Pursuant to the 2005 Amendment, the Investment Center will continue to grant Approved Enterprise
status to qualifying investments. The 2005 Amendment, however, limits the scope of enterprises that may be approved by the Investment
Center by setting criteria for the approval of a facility as an Approved Enterprise, such as provisions generally requiring that at least
25% of the Approved Enterprise’s income be derived from exports.
The
2005 Amendment provides that Approved Enterprise status will only be necessary for receiving cash grants. As a result, it was no longer
necessary for a company to obtain Approved Enterprise status in order to receive the tax benefits previously available under the alternative
benefits track. Rather, a company may claim the tax benefits offered by the Investment Law directly in its tax returns, provided that
its facilities meet the criteria for tax benefits set forth in the amendment. Companies are entitled to approach the Israeli Tax Authority
for a pre-ruling regarding their eligibility for benefits under the Investment Law, as amended.
129
In
order to receive the tax benefits, the 2005 Amendment states that a company must make an investment which meets all of the conditions,
including exceeding a minimum investment amount specified in the Investment Law. Such investment allows a company to receive “Benefited
Enterprise” status, and may be made over a period of no more than three years from the end of the year in which the company requested
to have the tax benefits apply to its Benefited Enterprise. Where the company requests to apply the tax benefits to an expansion of existing
facilities, only the expansion will be considered to be a Benefited Enterprise and the company’s effective tax rate will be the
weighted average of the applicable rates. In this case, the minimum investment required in order to qualify as a Benefited Enterprise
is required to exceed a certain percentage of the value of the company’s production assets before the expansion.
The
extent of the tax benefits available under the 2005 Amendment to qualifying income of a Benefited Enterprise depend on, among other things,
the geographic location in Israel of the Benefited Enterprise. The location will also determine the period for which tax benefits are
available. Such tax benefits include an exemption from corporate tax on undistributed income for a period of between two to 10 years,
depending on the geographic location of the Benefited Enterprise in Israel, and a reduced corporate tax rate of between 10% and the applicable
corporate tax for the remainder of the benefits period, depending on the level of foreign investment in the company in each year. A company
qualifying for tax benefits under the 2005 Amendment which pays a dividend out of income derived by its Benefited Enterprise during the
tax exemption period will be subject to corporate tax in respect of the gross amount of the dividend at the otherwise applicable corporate
tax rate or a lower rate in the case of a qualified FIC which is at least 49% owned by non-Israeli residents. Dividends paid out of income
attributed to a Benefited Enterprise are generally subject to withholding tax at source at the rate of 20% or such lower rate as may be
provided in an applicable tax treaty.
The benefits available
to a Benefited Enterprise are subject to the fulfillment of conditions stipulated in the Investment Law and its regulations. If a company
does not meet these conditions, it may be required to refund the amount of tax benefits, as adjusted by the Israeli consumer price index,
and interest, or other monetary penalties.
We
applied for tax benefits as a “Benefited Enterprise” with 2012 as a “Year of Election.” We may be entitled to
tax benefits under this regime once we are profitable for tax purposes and subject to the fulfillment of all the relevant conditions.
If we do not meet these conditions, the tax benefits may not be applicable which would result in adverse tax consequences to us. Alternatively,
and subject to the fulfillment of all the relevant conditions, we may elect in the future to irrevocably waive the tax benefits available
for Benefited Enterprise and claim the tax benefits available to Preferred Enterprise under the 2011 Amendment (as detailed below).
Tax
Benefits Under the 2011 Amendment
The
Investment Law was significantly amended as of January 1, 2011, or the 2011 Amendment. The 2011 Amendment introduced new benefits
to replace those granted in accordance with the provisions of the Investment Law in effect prior to the 2011 Amendment.
The
2011 Amendment introduced new tax benefits for income generated by a “Preferred Company” through its “Preferred Enterprise,”
in accordance with the definition of such term in the Investment Law, which generally means that a “Preferred Company” is
an industrial company meeting certain conditions (including a minimum threshold of 25% export).
130
A
Preferred Company is entitled to a reduced flat tax rate with respect to the income attributed to the Preferred Enterprise, at the following
rates:
|
Tax Year |
Development Region “A” |
Other Areas within Israel |
||||||
|
2011 – 2012 |
10 |
% |
15 |
% | ||||
|
2013 |
7 |
% |
12.5 |
% | ||||
|
2014 – 2016 |
9 |
% |
16 |
% | ||||
|
2017 and thereafter
|
7.5 |
% |
16 |
% | ||||
Dividends
distributed from income which is attributed to a “Preferred Enterprise” will be subject to withholding tax at source at the
following rates: (i) Israeli resident corporations — 0%, (ii) Israeli resident individuals — 20% in 2020 (iii) non-Israeli
residents — may be reduced down to 4% in 2022, subject to certain conditions under the Investment Law and to a reduced tax rate
under the provisions of an applicable double tax treaty.
Under
the 2011 Amendment, a company located in Development Region “A” may be entitled to cash grants and the provision of loans
under certain conditions, if approved. The rates for grants and loans shall not be fixed, but up to 20% of the amount of the approved
investment (may be increased by an additional 4%). In addition, a company owning a Preferred Enterprise under the Grant Track may be entitled
also to the tax benefits which are prescribed for a Preferred Company.
The
termination or substantial reduction of any of the benefits available under the Investment Law could materially increase our tax liabilities.
We
are currently not entitled to tax benefits for a Preferred Enterprise.
New
Tax benefits under the 2017 Amendment that became effective on January 1, 2017.
The
2017 Amendment was enacted as part of the Economic Efficiency Law that was published on December 28, 2016, and was effective as of January
1, 2017. The 2017 Amendment provides new tax benefits for two types of “Technology Enterprises”, as described below, and is
in addition to the other existing tax beneficial programs under the Investment Law.
The
2017 Amendment provides that a technology company satisfying certain conditions will qualify as a “Preferred Technology Enterprise”
and will thereby enjoy a reduced corporate tax rate of 12% on income that qualifies as “Preferred Technology Income,” as defined
in the Investment Law. The tax rate is further reduced to 7.5% for a Preferred Technology Enterprise located in development zone A. In
addition, a Preferred Technology Company will enjoy a reduced corporate tax rate of 12% on capital gain derived from the sale of certain
“Benefitted Intangible Assets” (as defined in the Investment Law) to a related foreign company if the Benefitted Intangible
Assets were acquired from a foreign company on or after January 1, 2017 for at least NIS 200 million, and the sale receives prior approval
from the National Authority for Technological Innovation (previously known as the Israeli Office of the Chief Scientist), to which we
refer as IIA.
The
2017 Amendment further provides that a technology company satisfying certain conditions will qualify as a “Special Preferred Technology
Enterprise” and will thereby enjoy a reduced corporate tax rate of 6% on “Preferred Technology Income” regardless of
the company’s geographic location within Israel. In addition, a Special Preferred Technology Enterprise will enjoy a reduced corporate
tax rate of 6% on capital gain derived from the sale of certain “Benefitted Intangible Assets” to a related foreign company
if the Benefitted Intangible Assets were either developed by the Special Preferred Technology Enterprise or acquired from a foreign company
on or after January 1, 2017, and the sale received prior approval from IIA. A Special Preferred Technology Enterprise that acquires Benefitted
Intangible Assets from a foreign company for more than NIS 500 million will be eligible for these benefits for at least ten years, subject
to certain approvals as specified in the Investment Law.
Dividends
distributed by a Preferred Technology Enterprise or a Special Preferred Technology Enterprise, paid out of Preferred Technology Income,
are generally subject to withholding tax at source at the rate of 20% or such lower rate as may be provided in an applicable tax treaty
(subject to the receipt in advance of a valid certificate from the Israel Tax Authority allowing for a reduced tax rate). However, if
such dividends are paid to an Israeli company, no tax is required to be withheld. If such dividends are distributed to a foreign company
and other conditions are met, the withholding tax rate will be 4%.
We
currently are not entitled to tax benefits under the 2017 Amendment
131
Taxation of Our Shareholders
Capital Gains
Capital gain tax is imposed on the disposition
of capital assets by an Israeli resident, and on the disposition of such assets by a non-Israeli resident if those assets are either (i)
located in Israel; (ii) are shares or a right to a share in an Israeli resident corporation, or (iii) represent, directly or indirectly,
rights to assets located in Israel. The Israeli Tax Ordinance distinguishes between “Real Gain” and the “Inflationary
Surplus.” Real Gain is the excess of the total capital gain over Inflationary Surplus computed generally on the basis of the increase
in the Israeli consumer price index between the date of purchase and the date of disposition. Inflationary Surplus is not currently subject
to tax in Israel.
Real Gain accrued by individuals on the sale
of our ordinary shares will be taxed at the rate of 25%. However, if the individual shareholder is a “Controlling Shareholder”
(i.e., a person who holds, directly or indirectly, alone or together with another, 10% or more of one of the Israeli resident company’s
means of control) at the time of sale or at any time during the preceding 12-month period, such gain will be taxed at the rate of 30%.
Real Gain derived by corporations will be
generally subject to the corporate tax rate of 23% in 2022.
Individual and corporate shareholder dealing
in securities in Israel are taxed at the tax rates applicable to business income —23% for corporations in 2020, and a marginal tax
rate of up to 50% for individuals, including an excess tax.
Notwithstanding the foregoing, capital gain
derived from the sale of our ordinary shares by a non-Israeli shareholder may be exempt under the Israeli Tax Ordinance from Israeli capital
gain tax provided that the seller does not have a permanent establishment in Israel to which the derived capital gain is attributed. However,
non-Israeli corporations will not be entitled to the foregoing exemption if more than 25% of its means of control are held, directly and
indirectly, by Israeli residents, and Israeli residents are entitled to 25% or more of the revenues or profits of the corporation, directly
or indirectly. In addition, such exemption would not be available to a person whose gains from selling or otherwise disposing of the securities
are deemed to be business income.
In
addition, the sale of shares may be exempt from Israeli capital gain tax under the provisions of an applicable tax treaty. For example,
the U.S.-Israel Double Tax Treaty exempts U.S. residents from Israeli capital gain tax in connection with such sale, provided (i) the
U.S. resident owned, directly or indirectly, less than 10% of an Israeli resident company’s voting power at any time within the
12-month period preceding such sale; (ii) the seller, being an individual, is present in Israel for a period or periods of less than 183
days during the taxable year; and (iii) the capital gain from the sale was not derived through a permanent establishment of the U.S. resident
in Israel.
In
some instances where our shareholders may be liable for Israeli tax on the sale of their ordinary shares, the payment of the consideration
may be subject to the withholding of Israeli tax at source at a rate of 25% if the seller is an individual and at the corporate tax rate
(23% in 2022) if the seller is a corporation. Shareholders may be required to demonstrate that they are exempt from tax on their capital
gains in order to avoid withholding at source at the time of sale.
At
the sale of securities traded on a stock exchange a detailed return, including a computation of the tax due, must be filed and an advanced
payment must be paid on January 31 and July 31 of every tax year in respect of sales of securities made within the previous six months.
However, if all tax due was withheld at source according to applicable provisions of the Israeli Tax Ordinance and regulations promulgated
thereunder, the aforementioned return need not be filed and no advance payment must be paid. Capital gain is also reportable on the annual
income tax return.
132
Dividends
We have never paid cash dividends. A distribution
of a dividend by our company from income attributed to a Benefited Enterprise will generally be subject to withholding tax in Israel at
a rate of 20% unless a reduced tax rate is provided under an applicable tax treaty. A distribution of a dividend by our company from income
attributed to a Preferred Enterprise will generally be subject to withholding tax in Israel at the following tax rates: Israeli resident
individuals — 20%; Israeli resident companies — 0% for a Preferred Enterprise; Non-Israeli residents — 20%, subject
to a reduced rate under the provisions of any applicable double tax treaty. A distribution of dividends from income, which is not attributed
to a Preferred Enterprise to an Israeli resident individual, will generally be subject to withholding tax at a rate of 25%, or 30% if
the dividend recipient is a “Controlling Shareholder” (as defined above) at the time of distribution or at any time during
the preceding 12-month period. If the recipient of the dividend is an Israeli resident corporation, such dividend will not be subject
to Israeli tax provided the income from which such dividend is distributed was derived or accrued within Israel.
The Israeli Tax Ordinance provides that a
non-Israeli resident (either individual or corporation) is generally subject to Israeli withholding tax on the receipt of dividends at
the rate of 25% (30% if the dividends recipient is a “Controlling Shareholder” (as defined above), at the time of distribution
or at any time during the preceding 12-month period); those rates may be subject to a reduced rate under the provisions of an applicable
double tax treaty. Under the U.S.-Israel Double Tax Treaty, the following withholding rates will apply in respect of dividends distributed
by an Israeli resident company to a U.S. resident: (i) if the U.S. resident is a corporation which holds during that portion of the taxable
year which precedes the date of payment of the dividend and during the whole of its prior taxable year (if any), at least 10% of the outstanding
shares of the voting share capital of the Israeli resident paying corporation and not more than 25% of the gross income of the Israeli
resident paying corporation for such prior taxable year (if any) consists of certain type of interest or dividends — the rate is
12.5%, (ii) if both the conditions mentioned in clause (i) above are met and the dividend is paid from an Israeli resident company’s
income which was entitled to a reduced tax rate applicable to an Approved Enterprise — the rate is 15% and (iii) in all other
cases, the rate is 25%. The aforementioned rates under the Israel U.S. Double Tax Treaty will not apply if the dividend income was derived
through a permanent establishment of the U.S. resident in Israel.
A
non-Israeli resident who receives dividends from which tax was withheld is generally exempt from the obligation to file tax returns in
Israel with respect to such income, provided that (i) such income was not generated from a business conducted in Israel by the taxpayer,
and (ii) the taxpayer has no other taxable sources of income in Israel with respect to which a tax return is required to be filed.
Dividends
are generally subject to Israeli withholding tax at a rate of 25% so long as the shares are registered with a nominee company (whether
or not the recipient is a “Controlling Shareholder,” as defined above), unless relief is provided in a treaty between Israel
and the shareholder’s country of residence and provided that a certificate from the Israel Tax Authority allowing for a reduced
withholding tax rate is obtained in advance.
Excess Tax
Individuals
who are subject to tax in Israel are also subject to an additional tax at a rate of 3% on annual income exceeding NIS 663,240 for 2022,
linked to the annual change in the Israeli consumer price index, including, but not limited to income derived from, dividends, interest
and capital gains.
Foreign Exchange Regulations
Non-residents
of Israel who hold our ordinary shares are able to receive any dividends, and any amounts payable upon the dissolution, liquidation and
winding up of our affairs, repayable in non-Israeli currency at the rate of exchange prevailing at the time of conversion. However, Israeli
income tax is generally required to have been paid or withheld on these amounts. In addition, the statutory framework for the potential
imposition of currency exchange control has not been eliminated and may be restored at any time by administrative action.
Estate and Gift Tax
Israeli
law presently does not impose estate or gift taxes.
133
U.S.
Federal Income Tax Considerations with respect to the Company
The
following discussion describes certain material U.S. federal income tax consequences to U.S. Holders (as defined below) under present
law of an investment in our ordinary shares or warrants. This discussion applies only to U.S. Holders that hold our ordinary shares or
warrants as capital assets within the meaning of Section 1221 of the Internal Revenue Code of 1986, as amended, or (the Code, and that
have the U.S. dollar as their functional currency.
This
discussion is based on the tax laws of the United States, including the Code, as in effect on the date hereof and on U.S. Treasury regulations
as in effect or, in some cases, as proposed, on the date hereof, as well as judicial and administrative interpretations thereof available
on or before such date. All of the foregoing authorities are subject to change, which change could apply retroactively and could affect
the tax consequences described below. This summary does not address any estate or gift tax consequences, the alternative minimum tax,
the Medicare tax on net investment income or any state, local, or non-U.S. tax consequences. The following discussion neither deals with
the tax consequences to any particular investor nor describes all of the tax consequences applicable to persons in special tax situations
such as:
| • |
banks; |
| • |
certain financial institutions; |
| • |
insurance companies; |
| • |
regulated investment companies; |
| • |
real estate investment trusts; |
| • |
broker-dealers; |
| • |
traders that elect to mark to market; |
| • |
U.S. expatriates; |
| • |
tax-exempt entities; |
| • |
persons holding our ordinary shares or warrants as part of a straddle, hedging, constructive sale, conversion or integrated transaction;
|
| • |
persons that actually or constructively (including through the ownership of our warrants) own 10% or more of our share capital (by
vote or value); |
| • |
persons that are resident or ordinarily resident in or have a permanent establishment in a jurisdiction outside the United States;
|
| • |
persons who acquired our ordinary shares or warrants pursuant to the exercise of any employee share option or otherwise as compensation;
|
| • |
persons subject to special tax accounting rules as a result of any item of gross income with respect to our ordinary shares or warrants
being taken into account in an applicable financial statement; or |
134
| • |
pass-through entities, or persons holding our ordinary shares or warrants through pass-through entities. |
INVESTORS
ARE URGED TO CONSULT THEIR TAX ADVISORS ABOUT THE APPLICATION OF THE U.S. FEDERAL TAX RULES TO THEIR PARTICULAR CIRCUMSTANCES AS WELL
AS THE STATE, LOCAL, NON-U.S. AND OTHER TAX CONSEQUENCES TO THEM OF AN INVESTMENT IN OUR ORDINARY SHARES OR WARRANTS.
The
discussion below of the U.S. federal income tax consequences to “U.S. Holders” will apply to you if you are the beneficial
owner of our ordinary shares or warrants and you are, for U.S. federal income tax purposes,
| • |
an individual who is a citizen or resident of the United States; |
| • |
a corporation (or other entity taxable as a corporation for U.S. federal income tax purposes) created or organized in the United
States or under the laws of the United States, any state thereof or the District of Columbia; |
| • |
an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or |
| • |
a trust that (i) is subject to the primary supervision of a court within the United States and the control of one or more U.S. persons
for all substantial decisions or (ii) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S.
person. |
If
an entity or other arrangement treated as a partnership for U.S. federal income tax purposes holds our ordinary shares or warrants, the
tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. A person that would
be a U.S. Holder if it held our ordinary shares or warrants directly and that is a partner of a partnership holding our ordinary shares
or warrants is urged to consult its own tax advisor.
Passive
Foreign Investment Company
A
non-U.S. entity treated as a corporation for U.S. federal income tax purposes will generally be a passive foreign investment company (“PFIC”)
for U.S. federal income tax purposes for any taxable year if either:
| • |
at least 75% of its gross income for such year is passive income (such as interest income); or |
| • |
at least 50% of the value of its assets (based on an average of the quarterly values of the assets) during such year is attributable
to assets that produce passive income or are held for the production of passive income. |
For
this purpose, we will be treated as owning our proportionate share of the assets and earning our proportionate share of the income of
any other entity treated as a corporation for U.S. federal income tax purposes in which we own, directly or indirectly, 25% or more (by
value) of the stock.
For
our 2019 through 2021 taxable years, we generated revenue under our then collaboration agreement with Perrigo UK Finco Limited Partnership,
or Perrigo, for the development of a generic product candidate. In 20201 we sold our rights to this and other generic products and will
unconditionally receive further revenue over 24 months in lieu of our share in the collaboration agreements with respect to these products.
Starting in 2021, we began generating revenue under our license agreements with Galderma for Twyneo®, and Epsolay®. See “Item
4. Information on the Company – B. Business Overview”. Though the application of the relevant rules governing
the characterization of the foregoing revenue for purposes of the PFIC income test is uncertain, we intend to take the position that,
based on our involvement and management contributions throughout the development process, such revenue is non-passive for PFIC purposes.
As a result, assuming we continue to earn substantial revenue from such agreements as anticipated and based on the current and anticipated
value and composition of our income and assets, we do not expect that we will be treated as a PFIC for U.S. federal income tax purposes
for our current taxable year or for foreseeable future years. However, there are substantial factual and legal ambiguities regarding the
nature of the revenue and the application of the relevant PFIC rules, and thus, the determination that such revenue is non-passive is
not without doubt, and alternative characterizations are possible.
135
A
separate determination must be made after the close of each taxable year as to whether we were a PFIC for that year. Because the value
of our assets for purposes of the PFIC test will generally be determined by reference to the market price of our ordinary shares, our
PFIC status may depend in part on the market price of our ordinary shares, which may fluctuate significantly. In addition, there may be
certain other ambiguities in applying the PFIC test to us. No rulings from the U.S. Internal Revenue Service, or the IRS, however, have
been or will be sought with respect to our status as a PFIC. If the IRS were to assert that, contrary to our expectation, we are a PFIC
in the current taxable year or a future year, there would be adverse tax consequences to investors, including those described below. Potential
investors are strongly advised to consult their own advisors regarding the consequences to them if we were to be considered a PFIC.
If
we are a PFIC for any taxable year during your holding period for our ordinary shares (or under proposed Regulations, our warrants), we
generally will continue to be treated as a PFIC with respect to your investment in our ordinary shares or warrants for all succeeding
years during which you hold our ordinary shares or warrants, and, although subject to uncertainty, potentially our ordinary shares received
upon exercise of such warrants. Certain elections (such as a deemed sale election) may be available under certain circumstances.
For
each taxable year that we are treated as a PFIC with respect to you, you will be subject to special tax rules with respect to any “excess
distribution” (as defined below) you receive and any gain you realize from a sale or other disposition (including a pledge) of our
ordinary shares or warrants, unless you make a valid “mark-to-market” election as discussed below, which may not be available
for the warrants. Distributions you receive in a taxable year that are greater than 125% of the average annual distributions you received
during the shorter of the three preceding taxable years or your holding period will be treated as an excess distribution. Under these
special tax rules:
| • |
the excess distribution or gain will be allocated ratably over your holding period; |
| • |
the amount allocated to the current taxable year, and any taxable years in your holding period prior to the first taxable year in
which we were a PFIC, will be treated as ordinary income; and |
| • |
the amount allocated to each other taxable year will be subject to the highest tax rate in effect for individuals or corporations,
as applicable, for each such year and the interest charge generally applicable to underpayments of tax will be imposed on the resulting
tax attributable to each such year. |
The
tax liability for amounts allocated to taxable years prior to the year of disposition or excess distribution cannot be offset by any net
operating losses, and gains (but not losses) realized on the sale of our ordinary shares or warrants cannot be treated as capital gains,
even if you hold our ordinary shares or warrants as capital assets.
If
we are treated as a PFIC with respect to you for any taxable year, to the extent any of our subsidiaries are also PFICs, you may be deemed
to own a proportionate interest in such lower-tier PFICs that are directly or indirectly owned by us, and you may be subject to the adverse
tax consequences described above with respect to the shares of such lower-tier PFICs you would be deemed to own. As a result, you may
incur liability for any excess distribution described above if we receive a distribution from our lower-tier PFICs or if any shares in
such lower-tier PFICs are disposed of (or deemed disposed of). You should consult your tax advisor regarding the application of the PFIC
rules to any of our subsidiaries.
A
U.S. Holder of “marketable stock” (as defined below) in a PFIC may make a mark-to-market election for such stock to elect
out of the tax treatment discussed above. If you make a valid mark-to-market election for our ordinary shares, you will include in income
for each year that we are treated as a PFIC with respect to you an amount equal to the excess, if any, of the fair market value of our
ordinary shares as of the close of your taxable year over your adjusted basis in such ordinary shares. You will be allowed a deduction
for the excess, if any, of the adjusted basis of our ordinary shares over their fair market value as of the close of the taxable year.
However, deductions will be allowable only to the extent of any net mark-to-market gains on our ordinary shares included in your income
for prior taxable years. Amounts included in your income under a mark-to-market election, as well as gain on the actual sale or other
disposition of our ordinary shares, will be treated as ordinary income. Ordinary loss treatment will also apply to the deductible portion
of any mark-to-market loss on our ordinary shares, as well as to any loss realized on the actual sale or disposition of our ordinary shares,
to the extent the amount of such loss does not exceed the net mark-to-market gains for such ordinary shares previously included in income.
Your basis in our ordinary shares will be adjusted to reflect any such income or loss amounts. If you make a mark-to-market election,
any distributions we make would generally be subject to the rules discussed below under “— Taxation of Dividends and Other
Distributions on our Ordinary Shares,” except the lower rates applicable to qualified dividend income would not apply.
136
The
mark-to-market election is available only for “marketable stock,” which is stock that is regularly traded on a qualified exchange
or other market, as defined in applicable U.S. Treasury regulations, and may not include our warrants. Our ordinary shares are listed
on the Nasdaq Global Market. Because a mark-to-market election cannot be made for equity interests in any lower-tier PFICs we own, you
generally will continue to be subject to the PFIC rules with respect to your indirect interest in any investments held by us that are
treated as an equity interest in a PFIC for U.S. federal income tax purposes. The Nasdaq Global Market is a qualified exchange, but there
can be no assurance that the trading in our ordinary shares will be sufficiently regular to qualify our ordinary shares as marketable
stock. You should consult your tax advisor as to the availability and desirability of a mark-to-market election, as well as the impact
of such election on interests in any lower-tier PFICs.
Alternatively,
if a non-U.S. entity treated as a corporation is a PFIC, a holder of shares in that entity may avoid taxation under the PFIC rules described
above regarding excess distributions and recognized gains by making a “qualified electing fund” election to include in income
its share of the entity’s income on a current basis. However, you may make a qualified electing fund election with respect to your
ordinary shares only if we furnish you annually with certain tax information, and we currently do not intend to prepare or provide such
information. A qualified electing fund election may not be available for our warrants regardless of whether we provide such information.
A
U.S. Holder of a PFIC may be required to file an IRS Form 8621. If we are a PFIC, you should consult your tax advisor regarding any reporting
requirements that may apply to you. You are urged to consult your tax advisor regarding the application of the PFIC rules to an investment
in ordinary shares or warrants.
YOU
ARE STRONGLY URGED TO CONSULT YOUR TAX ADVISOR REGARDING THE IMPACT ON YOUR INVESTMENT IN OUR ORDINARY SHARES OR WARRANTS IF WE WERE TO
BE CONSIDERED A PFIC AS WELL AS THE APPLICATION OF THE PFIC RULES AND THE POSSIBILITY OF MAKING A MARK-TO-MARKET ELECTION.
Taxation
of Dividends and Other Distributions on our Ordinary Shares
Subject
to the PFIC rules discussed above, the gross amount of any distributions we make to you (including the amount of any tax withheld) with
respect to our ordinary shares generally will be includible in your gross income as dividend income on the date of receipt by the holder,
but only to the extent the distribution is paid out of our current or accumulated earnings and profits (as determined under U.S. federal
income tax principles). The dividends will not be eligible for the dividends-received deduction allowed to corporations in respect of
dividends received from other U.S. corporations. To the extent the amount of the distribution exceeds our current and accumulated earnings
and profits (as determined under U.S. federal income tax principles), such excess amount will be treated first as a tax-free return of
your tax basis in your ordinary shares, and then, to the extent such excess amount exceeds your tax basis in your ordinary shares, as
capital gain. We currently do not, and we do not intend to, calculate our earnings and profits under U.S. federal income tax principles.
Therefore, you should expect that a distribution will generally be reported as a dividend even if that distribution would otherwise be
treated as a non-taxable return of capital or as capital gain under the rules described above.
With
respect to certain non-corporate U.S. Holders, including individual U.S. Holders, dividends may be taxed at the lower capital gain rates
applicable to “qualified dividend income,” provided (i) our ordinary shares are readily tradable on an established securities
market in the United States (such as the Nasdaq Global Market), (ii) we are neither a PFIC nor treated as such with respect to you (as
discussed above) for either the taxable year in which the dividend was paid or the preceding taxable year, (iii) certain holding period
requirements are met and (iv) you are not under an obligation to make related payments with respect to positions in substantially similar
or related property.
137
The
amount of any distribution paid in a currency other than U.S. dollars will be equal to the U.S. dollar value of such currency on the date
such distribution is includible in your income, regardless of whether the payment is in fact converted into U.S. dollars at that time.
The amount of any distribution of property other than cash will be the fair market value of such property on the date of distribution.
Any
dividends will constitute foreign source income for foreign tax credit limitation purposes. If the dividends are taxed as qualified dividend
income (as discussed above), the amount of the dividend taken into account for purposes of calculating the foreign tax credit limitation
will in general be limited to the gross amount of the dividend, multiplied by the reduced tax rate applicable to qualified dividend income
and divided by the highest tax rate normally applicable to dividends. The limitation on foreign taxes eligible for credit is calculated
separately with respect to specific classes of income. For this purpose, dividends distributed by us with respect to our ordinary shares
will generally constitute “passive category income.”
If
Israeli withholding taxes apply to any dividends paid to you with respect to our ordinary shares, subject to certain conditions and limitations,
such withholding taxes may be treated as foreign taxes eligible for credit against your U.S. federal income tax liability. Instead of
claiming a credit, you may elect to deduct such taxes in computing taxable income, subject to applicable limitations. If a refund of the
tax withheld is available under the applicable laws of Israel or under the Israel-U.S. income tax treaty, or the Treaty, the amount of
tax withheld that is refundable will not be eligible for such credit against your U.S. federal income tax liability (and will not be eligible
for the deduction against your U.S. federal taxable income). The rules relating to the determination of the foreign tax credit are complex,
and you should consult your tax advisor regarding the availability of a foreign tax credit in your particular circumstances, including
the effects of the Treaty.
Constructive
Dividends on our Ordinary Shares or Warrants
If
the exercise price of our warrants is adjusted in certain circumstances (or in certain circumstances, there is a failure to make adjustments
or a failure to make adequate adjustments), that adjustment (or failure to adjust) may result in the deemed payment of a taxable dividend
to a U.S. Holder of the warrants or our ordinary shares. Any such constructive dividend will be taxable generally as described above under
“Taxation of Dividends and Other Distributions on our Ordinary Shares.” Generally, a U.S. Holder’s tax basis in our
ordinary shares or the warrants will be increased to the extent of any such constructive dividend. It is not entirely clear whether a
constructive dividend deemed paid to a non-corporate U.S. Holder could be “qualified dividend income” as discussed above under
“Taxation of Dividends and Other Distributions on our Ordinary Shares.” U.S. Holders should consult their tax advisers regarding
the proper U.S. federal income tax treatment of any adjustments to (or failure to adjust or adjust adequately) the exercise price of the
warrants.
We
are currently required to report the amount of any constructive dividends on our website or to the IRS and to holders not exempt from
reporting. The IRS has proposed regulations addressing the amount and timing of constructive dividends, as well as, obligations of withholding
agents and filing and notice obligations of issuers in respect of such constructive dividends. If adopted as proposed, the regulations
would generally provide that (i) the amount of a constructive dividend is the excess of the fair market value of the right to acquire
stock immediately after the exercise price adjustment over the fair market value of the right to acquire stock (after the exercise price
adjustment) without the adjustment, (ii) the constructive dividend occurs at the earlier of the date the adjustment occurs under the terms
of the instrument and the date of the actual distribution of cash or property that results in the constructive dividend and (iii) we are
required to report the amount of any constructive dividends on our website or to the IRS and to all holders (including holders that would
otherwise be exempt from reporting). The final regulations will be effective for constructive dividends occurring on or after the date
of adoption, but holders and withholding agents may rely on them prior to that date under certain circumstances.
138
Taxation
of Disposition of our Ordinary Shares or Warrants
Subject
to the PFIC rules discussed above, upon a sale or other disposition of our ordinary shares or warrants, you will generally recognize capital
gain or loss for U.S. federal income tax purposes in an amount equal to the difference between the amount realized (including the amount
of any tax withheld) and your tax basis in such ordinary shares or warrants. If the consideration you receive for our ordinary shares
or warrants is not paid in U.S. dollars, the amount realized will be the U.S. dollar value of the payment received determined by reference
to the spot rate of exchange on the date of the sale or other disposition. However, if our ordinary shares or warrants are treated as
traded on an “established securities market” and you are either a cash basis taxpayer or an accrual basis taxpayer that has
made a special election (which must be applied consistently from year to year and cannot be changed without the consent of the IRS), you
will determine the U.S. dollar value of the amount realized in a non-U.S. dollar currency by translating the amount received at the spot
rate of exchange on the settlement date of the sale. If you are an accrual basis taxpayer that is not eligible to or does not elect to
determine the amount realized using the spot rate on the settlement date, you will recognize foreign currency gain or loss to the extent
of any difference between the U.S. dollar amount realized on the date of sale or disposition and the U.S. dollar value of the currency
received at the spot rate on the settlement date.
Any
gain or loss on the sale or other disposition of our ordinary shares or warrants will generally be treated as U.S. source income or loss
and treated as long-term capital gain or loss if your holding period in our ordinary shares or warrants at the time of the disposition
exceeds one year. Accordingly, in the event any Israeli tax (including withholding tax) is imposed upon the sale or other disposition,
you may not be able to utilize foreign tax credit unless you have foreign source income or gain in the same category from other sources.
Long-term capital gain of non-corporate U.S. Holders generally will be subject to U.S. federal income tax at reduced tax rates. The deductibility
of capital losses is subject to significant limitations.
Taxation
of Exercise or Expiration of our Warrants
In
general, you will not be required to recognize income, gain or loss upon exercise of our warrants by payment of the exercise price. Your
tax basis in our ordinary shares received upon exercise of our warrants will be equal to the sum of (1) your tax basis in the warrants
exchanged therefor and (2) the exercise price of the warrants. Your holding period in our ordinary shares received upon exercise will
commence on the day after you exercise the warrants.
If
the warrants expire without being exercised, you will recognize a capital loss in an amount equal to your tax basis in the warrants. Such
loss will be long-term capital loss if, at the time of the expiration, your holding period in the warrants is more than one year. The
deductibility of capital losses is subject to limitations.
Information
Reporting and Backup Withholding
Dividend
payments (including constructive dividends) with respect to our ordinary shares or warrants and proceeds from the sale, exchange or redemption
of our ordinary shares or warrants may be subject to information reporting to the IRS and possible U.S. backup withholding. Backup withholding
will not apply, however, to a U.S. Holder that furnishes a correct taxpayer identification number and makes any other required certification
or that is otherwise exempt from backup withholding. U.S. Holders that are required to establish their exempt status generally must provide
such certification on IRS Form W-9. You should consult your tax advisor regarding the application of the U.S. information reporting and
backup withholding rules.
Backup
withholding is not an additional tax. Amounts withheld as backup withholding may be credited against your U.S. federal income tax liability,
and you may obtain a refund of any excess amounts withheld under the backup withholding rules by filing the appropriate claim for refund
with the IRS and furnishing any required information in a timely manner.
Information
with respect to Foreign Financial Assets
Certain
U.S. Holders may be required to report information relating to an interest in our ordinary shares or warrants, subject to certain exceptions
(including an exception for ordinary shares held in accounts maintained by certain financial institutions). Penalties can apply if U.S.
Holders fail to satisfy such reporting requirements. You should consult your tax advisor regarding the effect, if any, of this requirement
on your ownership and disposition of our ordinary shares.
139
THE
SUMMARY OF U.S. FEDERAL INCOME TAX CONSEQUENCES SET OUT ABOVE IS FOR GENERAL INFORMATIONAL PURPOSES ONLY. INVESTORS ARE URGED TO CONSULT
THEIR TAX ADVISORS ABOUT THE APPLICATION OF THE U.S. FEDERAL TAX RULES TO THEIR PARTICULAR CIRCUMSTANCES AS WELL AS THE STATE, LOCAL,
NON-U.S. AND OTHER TAX CONSEQUENCES TO THEM OF AN INVESTMENT IN OUR ORDINARY SHARES OR WARRANTS.
F.
Dividends and Paying Agents
Not applicable.
G.
Statement by Experts
Not applicable.
H.
Documents on Display
We
are subject to the information reporting requirements of the Exchange Act, applicable to foreign private issuers, and under those requirements,
we file reports with the SEC. Our filings with the SEC are available to the public through the SEC’s website at http://www.sec.gov.
As
a foreign private issuer, we are exempt from the rules under the Exchange Act, related to the furnishing and content of proxy statements,
and our officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained
in Section 16 of the Exchange Act. In addition, we are not required under the Exchange Act, to file annual, quarterly and current reports
and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange
Act. However, we are required to comply with the informational requirements of the Exchange Act, and, accordingly, file current reports
on Form 6-K, annual reports on Form 20-F and other information with the SEC.
I.
Subsidiary Information
Not applicable.
ITEM
11. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We
are exposed to market risks in the ordinary course of our business. Market risk represents the risk of loss that may impact our financial
position due to adverse changes in financial market prices and rates. Our market risk exposure is primarily a result of foreign currency
exchange rates, which is discussed in detail below.
Interest
Rate Risk
We
do not anticipate undertaking any significant long-term borrowings.
At
present, our investments consist primarily of marketable securities and bank deposits. We may be exposed to market price risk because
of investments in tradable securities, mainly corporate bonds, held by us and classified in our financial statements as financial assets
at fair value through profit or loss. To manage the price risk arising from investments in tradable securities, we invest in marketable
securities with high ratings and diversify our investment portfolio. Our investments may also be exposed to market risk due to fluctuation
in interest rates, which may affect our interest income and the fair market value of our investments, if any.
140
Foreign
Currency Exchange Risk
The
U.S. dollar is our functional and reporting currency. Although a substantial portion of our expenses (mainly salaries and related costs)
are denominated in NIS, accounting for almost half of our expenses in the year ended December 31, 2021, all of our financing has
been in U.S. dollars and the vast majority of our liquid assets are held in U.S. dollars. Furthermore, while we anticipate that
a portion of our expenses, principally salaries and related personnel expenses in Israel, will continue to be denominated in NIS, we expect
to incur an increasing amount of expenses in U.S. dollars as we progress in the development and the regulatory processes of our product
candidates. Changes of 5% in the U.S. dollar/NIS exchange rate would have increased/decreased operating expenses by approximately 2.58%
during the fiscal year ended on December 31, 2021. We also have expenses, although to a much lesser extent, in other non-U.S. dollar
currencies, in particular the Euro.
Moreover,
for the next few years we expect that the substantial majority of our revenues from the sale of our products in the United States, if
any, will be denominated in U.S. dollars. Since a portion of our expenses is denominated in NIS and other non-U.S. currencies, we are
exposed to risk associated with exchange rate fluctuations vis-à-vis the non-U.S. currencies. See “Item 3 – D. Risk Factors —
Exchange rate fluctuations between the U.S. dollar, the New Israeli Shekel and other foreign currencies, may negatively affect our future
revenues.” If the NIS fluctuates significantly against the U.S. dollar it may have a negative impact on our results of operations.
As of the date of this annual report and for the periods under review, fluctuations in the currencies exchange rates have not materially
affected our results of operations or financial condition.
The
Company carries out transactions involving foreign currency exchange derivative financial instruments. The transactions are designed to
hedge the Company’s exposure in currencies other than the U.S. dollar. The derivative does not meet the definition of a cash flow
accounting hedge, and therefore the changes in the fair value are included in financial expense (income), net.
Inflation-related
risks
We
do not believe that the rate of inflation in Israel has had a material impact on our business to date, however, our costs in Israel will
increase if the inflation rate in Israel exceeds the devaluation of the NIS against the U.S. dollar or if the timing of such devaluation
lags behind inflation in Israel.
ITEM
12. DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
A. Debt
Securities
Not applicable.
B.
Warrants and Rights
Not applicable.
C.
Other Securities
Not applicable.
D.
American Depositary Shares
Not applicable.
ITEM
13. DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES
Not applicable.
ITEM
14. MATERIAL
MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS
All
proceeds have been applied from our initial public offering on Nasdaq on February 5, 2018.
141
ITEM
15. CONTROLS AND PROCEDURES
(a) Disclosure
Controls and Procedures
We
performed an evaluation of the effectiveness of our disclosure controls and procedures that are designed to ensure that information required
to be disclosed and filed with the SEC is recorded, processed, summarized and reported timely within the time period specified in the
SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure
that information required to be disclosed by us in the reports that we file or submit under the Exchange Act, is accumulated and communicated
to our management, including our principal executive and principal financial officers, or persons performing similar functions, as appropriate
to allow timely decisions regarding required disclosure. There can be no assurance that our disclosure controls and procedures will detect
or uncover all failures of persons within the company to disclose information otherwise required to be set forth in our reports. Nevertheless,
our disclosure controls and procedures are designed to provide reasonable assurance of achieving the desired control objectives. Based
on our evaluation, our management, including our Chief Executive Officer and Chief Financial Officer, have concluded that our disclosure
controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) as of the end of the period covered by this
report are effective at such reasonable assurance level.
(b) Management’s
Annual Report on Internal Control over Financial Reporting
Our
management, under the supervision of our Chief Executive Officer and Chief Financial Officer, is responsible for establishing and maintaining
adequate internal control over our financial reporting, as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act of 1934, as amended.
The Company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting
principles. Internal control over financial reporting includes policies and procedures that:
|
• |
pertain to the maintenance of records that in reasonable detail accurately and fairly
reflect our transactions and asset dispositions; |
|
• |
provide reasonable assurance that transactions are recorded as necessary to permit the
preparation of our financial statements in accordance with generally accepted accounting principles; |
|
• |
provide reasonable assurance that receipts and expenditures are made only in accordance
with authorizations of our management and board of directors (as appropriate); and |
|
• |
provide reasonable assurance regarding the prevention or timely detection of unauthorized
acquisition, use or disposition of assets that could have a material effect on our financial statements. |
Due
to its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. In addition, projections
of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in
conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Under
the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we assessed
the effectiveness of our internal control over financial reporting as of December 31, 2021 based on the framework for Internal Control-Integrated
Framework set forth by The Committee of Sponsoring Organizations of the Treadway Commission (COSO) (2013).
Based
on our assessment and this framework, our management concluded that the Company’s internal control over financial reporting was
effective as of December 31, 2021.
(c) Attestation
Report of Registered Public Accounting Firm
Not applicable.
142
(d)
Changes in Internal Controls Over Financial Reporting
There
were no changes in our internal control over financial reporting that occurred during the year ended December 31, 2021 that have materially
affected or are reasonably likely to materially affect our internal control over financial reporting.
ITEM
16. [RESERVED]
ITEM
16A. AUDIT COMMITTEE FINANCIAL EXPERT
Our
board of directors has determined that Mr. Jerrold S. Gattegno is an audit committee financial expert. Mr. Gattegno is an independent
director for the purposes of the Nasdaq Listing Rules.
ITEM
16B. CODE
OF ETHICS
We
have adopted a code of ethics that applies to our principal executive officer, principal financial officer, principal accounting officer
or controller, or persons performing similar functions. This code of ethics is posted on our website, http://ir.sol-gel.com/corporate-governance/governance-overview.
143
ITEM
16C. PRINCIPAL
ACCOUNTANT FEES AND SERVICES
Fees
Paid to Independent Registered Public Accounting Firm
The
following table sets forth, for each of the years indicated, the aggregate fees billed by our independent registered public accounting
firm for professional services.
|
|
Year Ended December 31, |
|||||||
|
Services Rendered |
2021 |
2020 |
||||||
|
|
(U.S. dollars in thousands) |
|||||||
|
Audit Fees (1) |
192 |
187 |
||||||
|
Tax (2) |
22 |
29 |
||||||
|
Other(3) |
1 |
- |
||||||
|
Total |
215 |
216 |
||||||
| (1) |
Audit Fees consist of professional services rendered in connection with the audit of our consolidated
financial statements, review of our consolidated quarterly financial statements, issuance of comfort letters, consents and assistance
with review of documents filed with the SEC. |
| (2) |
Tax fees relate to tax compliance, planning and advice. |
(3)
Other fees relate to license fees for use of accounting research tools.
Audit
Committee Pre-Approval Policies and Procedures
Our
audit committee’s specific responsibilities in carrying out its oversight of the quality and integrity of the accounting, auditing
and reporting practices of the Company include the approval of audit and non-audit services to be provided by the external auditor. The
audit committee approves in advance the particular services or categories of services to be provided to the Company during the following
yearly period and also sets forth a specific budget for such audit and non-audit services. Additional non-audit services may be pre-approved
by the audit committee.
ITEM
16D. EXEMPTIONS
FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES
Not applicable.
ITEM
16E. PURCHASES
OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS
Not applicable.
ITEM
16F. CHANGE
IN REGISTRANT’S CERTIFYING ACCOUNTANT
Not applicable.
ITEM
16G. CORPORATE
GOVERNANCE
Nasdaq
Stock Listing Rules and Home Country
Practices
As
a foreign private issuer, we are exempt from the rules under the Exchange Act related to the furnishing and content of proxy statements,
and our officers, directors and principal shareholders will be exempt from the reporting and short-swing profit recovery provisions contained
in Section 16 of the Exchange Act. Also, we are not required to comply with Regulation FD, which restricts the selective disclosure of
material information. However, we intend to file with the SEC, within 120 days after the end of each fiscal year, or such applicable time
as required by the SEC, an annual report on Form 20-F containing financial statements audited by an independent registered public accounting
firm, and we intend to submit to the SEC from time to time, on Form 6-K, reports of information that would likely be material to an investment
decision in our securities.
144
As
a foreign private issuer, we are permitted to follow certain Israeli corporate governance practices instead of the Nasdaq corporate governance
rules, provided that we disclose which requirements we are not following and the equivalent Israeli requirement. Pursuant to the “foreign
private issuer exemption”:
| • |
the quorum for any meeting of shareholders is two or more shareholders holding at least 33-1∕3%
of our voting rights, which complies with Nasdaq requirements; however, if the meeting is adjourned for lack of quorum, the quorum for
such adjourned meeting will be any number of shareholders, instead of 33-1∕3% of our voting rights; |
| • |
we adopt and approve material changes to equity incentive plans in accordance with the Companies Law,
which does not impose a requirement of shareholder approval for such actions. In addition, we intend to follow Israeli corporate governance
practice in lieu of Nasdaq Marketplace Rule 5635(c), which requires shareholder approval prior to an issuance of securities in connection
with equity based compensation of officers, directors, employees or consultants; |
| • |
as opposed to making periodic reports to shareholders and proxy solicitation materials available to shareholders
in the manner specified by the Nasdaq corporate governance rules, the Companies Law does not require us to distribute periodic reports
directly to shareholders, and the generally accepted business practice in Israel is not to distribute such reports to shareholders but
to make such reports available through a public website. We only mail such reports to shareholders upon request; and |
| • |
we follow Israeli corporate governance practice instead of Nasdaq requirements to obtain shareholder
approval for certain dilutive events (such as issuances that will result in a change of control, certain transactions other than a public
offering involving issuances of a 20% or greater interest in us and certain acquisitions of the stock or assets of another company).
|
Otherwise,
we intend to comply with the rules generally applicable to U.S. domestic companies listed on the Nasdaq Global Market. We may in the future
decide to use the foreign private issuer exemption with respect to some or all of the other Nasdaq corporate governance rules. We also
intend to comply with Israeli corporate governance requirements under the Companies Law applicable to public companies.
Controlled
Company
As
a result of the number of shares owned by Arkin Dermatology, as of the date of this annual report, we are a “controlled company”
under the Nasdaq corporate governance rules. A “controlled company” is a company of which more than 50% of the voting power
is held by an individual, group or another company. Pursuant to the “controlled company” exemption, we are not required to,
and may not in the future comply with the requirement that a majority of our board of directors consist of independent directors, and
we are not required to, and do not intend to comply with the requirement that we have a nominating committee composed entirely of independent
directors with a written charter addressing such committee’s purpose and responsibilities. A majority of our board of directors
currently consists of independent directors. See “Item 6. Directors, Senior
Management and Employees — C. Board Practices."
ITEM
16H. MINE
SAFETY DISCLOSURE
Not applicable.
ITEM 16I.
DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
Not applicable.
145
ITEM
17. FINANCIAL STATEMENTS
Not applicable.
ITEM
18. FINANCIAL STATEMENTS
The
financial statements required by this item are found at the end of this annual report, beginning on page F-1.
ITEM
19. EXHIBITS
See
Exhibit Index on page 147.
146
EXHIBIT
INDEX
The exhibits filed
with or incorporated into this Registration Statement are listed in the index of exhibits below.
|
Exhibit Number |
|
Exhibit Description |
|
|
|
|
|
|
| |
|
|
| |
|
|
| |
|
|
||
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
147
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
| ||
|
| ||
|
|
| |
|
|
||
|
|
||
|
|
| |
|
|
| |
148
| |
||
| |
||
|
|
|
|
| |
||
|
|
|
|
|
|
|
|
|
101 |
|
The following financial statements from the Company’s 20-F
for the fiscal year ended December 31, 2021, formatted in XBRL: (i) Consolidated Statements of Comprehensive Loss, (ii) Consolidated
Statements of Financial Position, (iii) Consolidated Statements of Changes in Equity, (iv) Consolidated Statements of Cash Flows, and
(v) Notes to the Consolidated Financial Statements. |
|
* |
Filed herewith. | |
|
|
|
|
|
† |
|
Certain confidential portions of this exhibit have been redacted
from the publicly filed document because such portions are (i) not material and (ii) would be competitively harmful if publicly disclosed.
|
|
|
|
|
|
∞ |
|
Informal translation of the original Hebrew document. |
149
SIGNATURE
The Registrant hereby
certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to
sign this annual report on its behalf.
|
|
SOL-GEL TECHNOLOGIES LTD. |
|||
|
|
|
|||
|
|
By: |
/s/ Alon Seri-Levy |
||
|
|
|
Name: |
Alon Seri-Levy |
|
|
|
|
Title: |
Chief Executive Officer and Director |
|
|
|
|
|
|
|
|
|
By: |
/s/ Gilad Mamlok |
||
|
|
|
Name: |
Gilad Mamlok |
|
|
|
|
Title: |
Chief Financial Officer |
|
Date: April 4,
2022
150
SOL-GEL TECHNOLOGIES LTD.
CONSOLIDATED FINANCIAL STATEMENTS
AS OF DECEMBER 31, 2021
SOL-GEL TECHNOLOGIES LTD.
CONSOLIDATED FINANCIAL STATEMENTS
AS OF DECEMBER 31, 2021
TABLE OF CONTENTS
|
Page
|
|
|
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM (PCAOB name: Kesselman & Kesselman C.P.A.s PCAOB ID:
|
F-2
|
|
CONSOLIDATED FINANCIAL STATEMENTS:
|
|
|
F-3
|
|
|
F-4
|
|
|
F-5
|
|
|
F-6
|
|
|
F-7
|
To the board of directors and shareholders of Sol-Gel Technologies Ltd.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Sol-Gel Technologies Ltd. and its subsidiary (the “Company”) as of December 31, 2021 and 2020, and the related consolidated statements of operations, of changes in shareholders' equity and of cash flows for each of the three years in the period ended December 31, 2021, including the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2021 and 2020, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2021 in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits of these consolidated financial statements in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
|
|
/s/
|
|
_______, 2022
|
Certified Public Accountants (Isr.)
|
|
A member firm of PricewaterhouseCoopers International Limited
|
We have served as the Company's auditor since 2000.
Kesselman & Kesselman, 146 Derech Menachem Begin, Tel-Aviv 6492103, Israel,
P.O Box 7187 Tel-Aviv 6107120, Telephone: +972 -3- 7954555, Fax:+972 -3- 7954556, www.pwc.com/il
F - 2
SOL-GEL TECHNOLOGIES LTD.
(U.S. dollars in thousands, except share and per share data)
|
|
December 31
|
|||||||
|
|
2020
|
2021
|
||||||
|
Assets
|
||||||||
|
CURRENT ASSETS:
|
||||||||
|
Cash and cash equivalents
|
$
|
$
|
||||||
|
Bank deposits
|
||||||||
|
Marketable securities
|
||||||||
|
Receivables from collaborative arrangements
|
||||||||
|
Prepaid expenses and other current assets
|
||||||||
|
TOTAL CURRENT ASSETS
|
||||||||
|
NON-CURRENT ASSETS:
|
||||||||
|
Long-term receivables from collaborative arrangements
|
||||||||
|
Restricted long-term deposits and cash
|
||||||||
|
Property and equipment, net
|
||||||||
|
Operating lease right-of-use assets
|
||||||||
|
Funds in respect of employee rights upon retirement
|
||||||||
|
TOTAL NON-CURRENT ASSETS
|
||||||||
|
TOTAL ASSETS
|
$
|
$
|
||||||
|
Liabilities and shareholders' equity
|
||||||||
|
CURRENT LIABILITIES:
|
||||||||
|
Accounts payable
|
$
|
$
|
||||||
|
Other accounts payable
|
||||||||
|
Current maturities of operating leases
|
||||||||
|
TOTAL CURRENT LIABILITIES
|
||||||||
|
LONG-TERM LIABILITIES:
|
||||||||
|
Operating leases liabilities
|
||||||||
|
Liability for employee rights upon retirement
|
||||||||
|
TOTAL LONG-TERM LIABILITIES
|
||||||||
|
COMMITMENTS (Note 6)
|
||||||||
|
TOTAL LIABILITIES
|
||||||||
|
SHAREHOLDERS' EQUITY:
|
||||||||
|
Ordinary shares, NIS
|
||||||||
|
Additional paid-in capital
|
||||||||
|
Accumulated deficit
|
( |
)
|
( |
)
|
||||
|
TOTAL SHAREHOLDERS' EQUITY
|
||||||||
|
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY
|
$
|
$
|
||||||
The accompanying notes are an integral part of these consolidated financial statements.
F - 3
SOL-GEL TECHNOLOGIES LTD.
(U.S. dollars in thousands, except share and per share data)
|
Year ended December 31,
|
||||||||||||
|
2019
|
2020
|
2021
|
||||||||||
|
COLLABORATION REVENUES
|
$
|
$
|
$
|
|||||||||
|
LICENSE REVENUES
|
||||||||||||
|
TOTAL REVENUES
|
||||||||||||
|
RESEARCH AND DEVELOPMENT EXPENSES
|
||||||||||||
|
GENERAL AND ADMINISTRATIVE EXPENSES
|
||||||||||||
|
OTHER INCOME, net
|
||||||||||||
|
TOTAL OPERATING INCOME (LOSS)
|
( |
)
|
( |
)
|
||||||||
|
FINANCIAL INCOME, net
|
||||||||||||
|
INCOME (LOSS) BEFORE INCOME TAXES
|
( |
)
|
( |
)
|
||||||||
|
INCOME TAXES
|
( |
)
|
||||||||||
|
NET INCOME (LOSS) FOR THE YEAR
|
$
|
( |
)
|
$
|
( |
)
|
$
|
|||||
|
BASIC INCOME (LOSS) PER ORDINARY SHARE
|
$
|
( |
)
|
$
|
( |
)
|
$
|
|||||
|
DILUTED INCOME (LOSS) PER ORDINARY SHARE
|
( |
)
|
( |
)
|
||||||||
|
WEIGHTED AVERAGE NUMBER OF SHARES OUTSTANDING USED IN COMPUTATION OF BASIC AND DILUTED INCOME (LOSS) PER SHARE:
|
||||||||||||
|
BASIC
|
||||||||||||
|
DILUTED
|
||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
F - 4
SOL-GEL TECHNOLOGIES LTD.
(U.S. dollars in thousands, except share data)
|
|
Ordinary shares
|
Additional paid-in
capital |
Accumulated
deficit
|
Total
|
||||||||||||||||
|
|
Number
of shares
|
Amounts
|
Amounts
|
|||||||||||||||||
|
BALANCE AS OF JANUARY 1, 2019 |
|
|
|
(
|
)
|
|
||||||||||||||
|
CHANGES DURING 2019:
|
||||||||||||||||||||
|
Net loss for the year
|
(
|
)
|
(
|
)
|
||||||||||||||||
|
Vesting of restricted share units
|
|
|
|
|
||||||||||||||||
|
Issuance of shares through public offering, net of issuance costs
|
|
|
|
|
||||||||||||||||
|
Share-based compensation
|
|
|
||||||||||||||||||
|
BALANCE AS OF DECEMBER 31, 2019
|
|
|
|
(
|
)
|
|
||||||||||||||
|
CHANGES DURING 2020:
|
||||||||||||||||||||
|
Net loss for the year
|
(
|
)
|
(
|
)
|
||||||||||||||||
|
Issuance of shares and warrants through public offering, net of issuance costs
|
|
|
|
|
||||||||||||||||
|
Issuance of shares and warrants through private placement from the controlling shareholder
|
|
|
|
|
||||||||||||||||
|
Vesting of restricted share units
|
|
|
||||||||||||||||||
|
Exercise of options
|
|
|
|
|
||||||||||||||||
|
Share-based compensation
|
|
|
||||||||||||||||||
|
BALANCE AS OF DECEMBER 31, 2020
|
|
|
|
(
|
)
|
|
||||||||||||||
|
CHANGES DURING 2021: |
||||||||||||||||||||
|
Net income for the year |
||||||||||||||||||||
|
Issuance of shares through ATM, net of issuance costs |
||||||||||||||||||||
|
Vesting of restricted share units |
|
|
||||||||||||||||||
|
Exercise of options |
|
|||||||||||||||||||
|
Share-based compensation |
||||||||||||||||||||
|
BALANCE AS OF DECEMBER 31, 2021 |
|
( |
) |
|||||||||||||||||
* Less than 1,000.
The accompanying notes are an integral part of these consolidated financial statements.
F - 5
SOL-GEL TECHNOLOGIES LTD.
(U.S. dollars in thousands)
|
Year ended December 31,
|
||||||||||||
|
2019
|
2020
|
2021
|
||||||||||
|
CASH FLOWS FROM OPERATING ACTIVITIES:
|
||||||||||||
|
Net income (loss) for the year
|
$
|
( |
)
|
$
|
( |
)
|
$
|
|||||
|
Adjustments required to reconcile net income (loss) to net cash used in operating activities:
|
||||||||||||
|
Depreciation
|
||||||||||||
|
Loss from disposal of property and equipment
|
||||||||||||
|
Changes in accrued liability for employee rights upon retirement
|
( |
)
|
||||||||||
|
Share-based compensation expenses
|
||||||||||||
|
Net changes in operating leases
|
||||||||||||
|
Changes in fair value of marketable securities
|
( |
)
|
||||||||||
|
Finance expenses, net
|
||||||||||||
|
Changes in operating asset and liabilities:
|
||||||||||||
|
Receivables from collaborative arrangements
|
( |
)
|
( |
)
|
||||||||
|
Prepaid expenses and other current assets
|
||||||||||||
|
Accounts payable, accrued expenses and other
|
( |
)
|
||||||||||
|
Long-term receivables from collaborative arrangements
|
( |
)
|
||||||||||
|
Net cash used in operating activities
|
( |
)
|
( |
)
|
( |
)
|
||||||
|
CASH FLOWS FROM INVESTING ACTIVITIES:
|
||||||||||||
|
Purchase of property and equipment
|
( |
)
|
( |
)
|
( |
)
|
||||||
|
Bank deposits
|
( |
)
|
( |
)
|
||||||||
|
Restricted long-term deposits
|
( |
)
|
( |
)
|
( |
)
|
||||||
|
Investments in marketable securities
|
( |
)
|
( |
)
|
( |
)
|
||||||
|
Proceeds from sales and maturity of marketable securities
|
||||||||||||
|
Net cash provided by (used in) investing activities
|
( |
)
|
||||||||||
|
CASH FLOWS FROM FINANCING ACTIVITIES:
|
||||||||||||
|
Proceeds from issuance of shares through ATM, net of issuance costs
|
||||||||||||
|
Proceeds from exercise of options granted to employees
|
||||||||||||
|
Proceeds from issuance of shares and warrants through public offering,
net of issuance costs
|
||||||||||||
|
Net proceeds from issuance of shares and warrants to the controlling shareholder through private placement
|
||||||||||||
|
Net cash provided by financing activities
|
||||||||||||
|
EFFECT OF EXCHANGE RATE ON CASH AND CASH EQUIVALENTS
|
( |
)
|
( |
)
|
( |
)
|
||||||
|
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
|
( |
)
|
||||||||||
|
CASH AND CASH EQUIVALENTS AND RESRICTED CASH AT BEGINNING OF THE YEAR
|
||||||||||||
|
CASH AND CASH EQUIVALENTS AND RESTRICTED CASH AT END OF THE YEAR
|
$
|
$
|
$
|
|||||||||
|
Cash and Cash equivalents
|
||||||||||||
|
Restricted cash
|
||||||||||||
|
CASH AND CASH EQUIVALENTS AND RESTRICTED CASH SHOWN IN STATEMENT OF CASH FLOWS
|
$
|
$
|
$
|
|||||||||
|
SUPPLEMENTARY INFORMATION ON INVESTING AND FINANCING ACTIVITIES NOT INVOLVING CASH FLOWS:
|
||||||||||||
|
Recognition of new operating lease ROU and liabilities
|
$
|
$
|
$
|
|||||||||
|
SUPPLEMENTARY INFORMATION:
|
||||||||||||
|
Income taxes paid
|
$
|
$
|
$
|
|||||||||
|
Interest received
|
$
|
$
|
$
|
|||||||||
The accompanying notes are an integral part of these consolidated financial statements.
F - 6
SOL-GEL TECHNOLOGIES LTD.
(U.S. dollars in thousands, except share and per share amounts)
NOTE 1 — NATURE OF OPERATIONS
Sol-Gel Technologies Ltd. (collectively with its subsidiary, the Company) is an Israeli Company incorporated in 1997.
The Company is a clinical stage specialty pharmaceutical company focused on developing and commercializing topical dermatological drug products. The Company’s lead product candidates are based upon its proprietary microencapsulation delivery system, consisting of microcapsules made of precipitated silica. The most advanced investigational drugs in the Company's product pipeline are: (i) Twyneo®, which is developed for the treatment of acne vulgaris and (ii) Epsolay®, a potential treatment for subtype II rosacea. The New Drug Application ("NDA") for Twyneo® was accepted by the U.S. Food and Drug Administration (the “FDA”), which assigned a Prescription Drug User Fee Act ("PDUFA") goal date of August 1, 2021. The NDA for Epsolay® was accepted by the FDA, which assigned a PDUFA goal date of April 26, 2021. On such PDUFA goal date, the Company received confirmation from the FDA that action on the NDA could not be taken since a pre-approval inspection of the production site of Epsolay® still needs to be conducted. On February 18,2022 the FDA conducted a pre-approval inspection of the production site for Epsolay®, currently pending approval by the FDA. In June 2021, the Company entered into two exclusive license agreements with Galderma for the commercialization of Twyneo® and Epsolay®, in the United States, see note 8. On July 27, 2021, the Company announced that the FDA approved the drug product, Twyneo®. In addition to the novel product candidates, the Company’s products included the generic products Acyclovir, Ivermectin and other generic product candidates. In November 2021, the company entered into an agreement with Padagis, to sell its rights in relation to ten generic collaborative agreements between the parties, including the agreements for two approved generic drug products. Under the new agreement, the company has retained collaboration rights to two generic programs related to four generic drug candidates, see note 7b.
The Company has a wholly owned U.S. subsidiary - Sol-Gel Technologies Inc. (the "Subsidiary"). The Subsidiary supports the Company with regard to marketing, regulatory affairs and business development relating to its products and technology in the U.S.
Since incorporation through December 31, 2021, the Company has an accumulated deficit of approximately $178,142 and its activities have been funded mainly by its shareholders, collaboration revenues and license agreements, see also Notes 7 and 8. The Company expects to continue to incur significant research and development and other costs related to its ongoing operations.
In addition, management is continuing to analyze cash resources and considering raising additional funding from different sources, such as corporate collaborations, public or private equity offerings and/or debt financings, and/or selling shares under the Company's Open Market Sale Agreement with Jefferies LLC. Management expects that the Company's cash and cash equivalents, deposits and marketable securities as of December 31, 2021 will allow the Company to fund its operating plan through at least the next 12 months from the financial statement issuance date.
The Company is subject to risks and uncertainties as a result of the COVID-19 pandemic. To date, the impact of COVID-19 pandemic has been limited and resulted in delays with respect to pre-approval inspections.
The full extent to which the COVID-19 pandemic will directly or indirectly impact the Company's business, results of operations and financial condition, including revenues from collaboration arrangements, expenses, reserves and allowances, manufacturing, supply, regulatory approvals, clinical trials, commercial launch of branded and generic product candidates, research and development costs and employee-related amounts, will depend on future developments that are highly uncertain and cannot be predicted. The Company continues to monitor and assess new information related to the COVID-19 pandemic, the actions taken to contain or treat COVID-19, as well as the economic impact on various markets.
F - 7
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 1 — NATURE OF OPERATIONS (continued):
Furthermore, the estimation process required to prepare the Company’s consolidated financial statements requires assumptions to be made about future events and conditions and the impact of COVID-19 on its financial results, and while management believes such assumptions are reasonable, they are inherently subjective and uncertain. The Company’s actual results could differ materially from those estimates.
NOTE 2 — SIGNIFICANT ACCOUNTING POLICIES
Basis of presentation
The Company’s financial statements have been prepared in accordance with generally accepted accounting principles in the United States of America (“U.S. GAAP”).
| a. |
Use of estimates in the preparation of financial statements |
The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting periods. Actual results may differ from those estimates.
As applicable to these consolidated financial statements, the most significant estimates and assumptions relate to the fair value of share-based compensation and the incremental borrowing rate for leases.
| b. |
Functional and presentation currency
|
The U.S. dollar (“dollar”) is the currency of the primary economic environment in which the operations of the Company and its subsidiary are conducted. The Company’s financing has been provided in dollars, revenues are primarily in dollars and a significant part of expenses are incurred in dollars. The financial statements are presented in dollars, which is the Company’s functional and presentation currency.
Transactions and balances originally denominated in dollars are presented at their original amounts. Balances in non-dollar currencies are translated into dollars using historical and current exchange rates for non-monetary and monetary balances, respectively. For non-dollar transactions and other items in the statements of operations (indicated below), the following exchange rates are used: (I) for transactions — exchange rates at transaction dates or average rates; and (ii) for other items (derived from non-monetary balance sheet items such as depreciation) — historical exchange rates. Currency transaction gains and losses are presented in financial income or expenses, as appropriate.
| c. |
Cash and cash equivalents
|
The Company considers as cash equivalents all short-term, highly liquid investments, which include short-term bank deposits with original maturities of three months or less from the date of purchase that are not restricted as to withdrawal or use and are readily convertible to known amounts of cash.
|
d. |
Bank deposits
Bank deposits with original maturity dates of more than three months but less than one year are included in short-term deposits. Such short-term deposits bear interest at an average annual rate of approximately
Bank deposits with maturity of more than one year are considered long-term. |
F - 8
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 2 - SIGNIFICANT ACCOUNTING POLICIES (continued):
| e. |
Marketable securities
|
Marketable securities consist of debt securities. The Company elected the fair value option to measure and recognize its investments in debt securities in accordance with ASC 825, Financial Instruments as the Company manages its portfolio and evaluates the performance on a fair value basis. Changes in fair value, realized gains and losses on sales of marketable securities, are reflected in the statements of operation as finance expense (income), net.
| f. |
Derivatives and hedging
The Company carries out transactions involving foreign currency exchange derivative financial instruments. The transactions are designed to hedge the Company’s exposure in currencies other than the U.S. dollar. The derivative does not qualify for hedge accounting, therefore the changes in the fair value are included in financial expense (income), net. The currency hedged items are denominated in New Israeli Shekel (NIS). The counterparties to the derivatives are major banks in Israel. |
As of December 31, 2021, the Company has $1,150 on the Company’s bank account that is restricted in order to secure the hedging transactions. This amount is presented among Restricted long-term deposits and cash.
| g. |
Trade receivables
|
Trade receivables are initially recognized at the transaction price and subsequently measured at amortized cost less any allowance for expected credit losses.
Starting from January 1, 2020, the Company applies ASU 2016-13 “Financial Instruments Credit Losses Measurement of Credit Losses on Financial Instruments” (“the Standard”).
| h. |
Property and equipment
|
| 1) |
Property and equipment are stated at cost, net of accumulated depreciation and amortization.
|
| 2) |
The Company’s property and equipment are depreciated utilizing the straight-line method on the basis of their estimated useful life.
|
Annual rates of depreciation are as follows:
| % | |
|
Laboratory equipment
|
|
|
Office equipment and furniture
|
|
|
Computers and related equipment
|
Leasehold improvements are amortized utilizing the straight-line method over the shorter of the expected lease term or the estimated useful life of the improvements.
F - 9
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 2 - SIGNIFICANT ACCOUNTING POLICIES (continued):
| i. |
Impairment of long-lived assets
|
The Company tests long-lived assets for impairment whenever events or circumstances present an indication of impairment. If the sum of expected future cash flows (undiscounted and without interest charges) of the assets is less than the carrying amount of such assets, an impairment loss would be recognized. The assets would then be written down to their estimated fair values.
For the three years ended December 31, 2021, the Company did not recognize an impairment loss for its long-lived assets.
| j. |
Share-based compensation
|
The Company accounts for employees’ and non-employees' share-based payment awards classified as equity awards using the grant-date fair value method. The fair value of share-based payment transactions is recognized as an expense over the requisite service period.
The Company elected to recognize compensation costs for awards conditioned only on continued service that have a graded vesting schedule using the accelerated method based on the multiple-option award approach.
The Company measures share-based compensation to non-employees in the same manner (except for certain exceptions) as share-based compensation to employees.
The Company has elected to recognize forfeitures as they occur.
| k. |
Research and development expenses
|
Research and development expenses include costs directly attributable to the conduct of research and development programs, including the cost of salaries, share-based compensation expenses, payroll taxes and other employee benefits, lab expenses, consumable equipment and consulting fees. All costs associated with research and developments are expensed as incurred.
Acquisitions of in-process research and development product candidate, which are not part of business combination, are recognized as an expense as research and development expenses as incurred.
Grants received from Israel Innovation Authority (hereafter — “IIA”), formerly known as the Office of the Chief Scientist of the Ministry of Economy and Industry, or the OCS are recognized when the grant becomes receivable, provided there is reasonable assurance that the Company will comply with the conditions attached to the grant and there is reasonable assurance the grant will be received. The grant is deducted from the research and development expenses as the applicable costs are incurred. See note 6a(1).
Clinical trial costs are a significant component of research and development expenses and include costs associated with third-party contractors. The Company outsources its clinical trial activities utilizing external entities such as clinical research organizations, independent clinical investigators, and other third-party service providers to assist the Company with the execution of its clinical trials. Clinical trial costs are expensed as incurred.
F - 10
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 2 - SIGNIFICANT ACCOUNTING POLICIES (continued):
| l. |
Revenue recognition
|
The Company applies ASC 606, Revenue from Contracts with Customers. According to the standard, an entity recognizes revenue when its customer obtains control of promised goods or services, in an amount that reflects the consideration that the entity expects to receive in exchange for those goods or services. To determine revenue recognition for arrangements that an entity determines are within the scope of Topic 606, the entity performs the following five steps: (i) identify the contract(s) with a customer; (ii) identify the performance obligations in the contract; (iii) determine the transaction price; (iv) allocate the transaction price to the performance obligations in the contract; and (v) recognize revenue when (or as) the performance obligation is satisfied.
An entity only applies the five-step model to contracts when it is probable that the entity will collect the consideration it is entitled to in exchange for the goods or services it transfers to the customer, after considering any price concession expected to be provided to the customer, when applicable. At contract inception, the entity assesses the goods or services promised within each contract and determines those that are performance obligations and assesses whether each promised good or service is distinct. A good or service promised to a customer is distinct if the customer can benefit from the good or service either on its own or together with other resources that are readily available to the customer and the entity’s promise to transfer the good or service to the customer is separately identifiable from other promises in the contract. The entity then recognizes as revenue the amount of the transaction price that is allocated to the respective performance obligation when (or as) the performance obligation is satisfied.
Collaborative Arrangements
The Company entered into collaborative arrangements with partners that fall under the scope of Topic 808, Collaborative Arrangements (“ASC 808”). While these arrangements are in the scope of ASC 808, the Company may analogize to ASC 606 for some aspects of the arrangements. The Company analogizes to ASC 606 for certain activities within the collaborative arrangement for the delivery of a good or service (i.e., a unit of account) that is part of its ongoing major or central operations. Revenue recognized by analogizing to ASC 606 is recorded as “collaboration revenues”.
The terms of the Company’s collaborative arrangements typically include one or more of the following: (i) royalties on net sales of licensed products; (ii) reimbursements or cost-sharing of R&D expenses. Each of these payments results in collaboration revenues or an offset against R&D expense.
Royalties: For arrangements that include sales-based royalties and the license is deemed to be the predominant item to which the royalties relate, the Company recognizes collaboration revenues at the later of (i) when the related sales occur, or (ii) when the performance obligation to which some or all of the royalty has been allocated has been satisfied (or partially satisfied).
Under certain collaborative arrangements, the Company has been reimbursed for a portion of its R&D expenses or participates in the cost-sharing of such R&D expenses. Such reimbursements and cost-sharing arrangements have been reflected as a reduction of R&D expense in the Company’s consolidated statements of operations, as
the Company does not consider performing research and development services for reimbursement to be a part of its ongoing major or central operations.
For arrangements that include a significant financing component, the company separates the significant financing component from the revenue and interest income is recorded when payments are received. See note 7.
F - 11
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 2 - SIGNIFICANT ACCOUNTING POLICIES (continued):
| l. |
Revenue recognition (continued):
|
Licensing agreements
The Company has identified one performance obligation in The License Agreements: Grant of the license and use of its IP. The Grant of the license and use of its IP performance obligation considered to be a right to use IP in accordance with ASC 606. Therefore, revenue is recognized at a point in time, upon transfer of control over the license to the licensee.
ASC 606 defines the ‘Transaction Price’ as the amount of consideration to which the entity expects to be entitled in exchange for transferring the promised goods or services to a customer. The transaction price contains variable consideration contingent upon the licensee achieving certain milestones, as well as sales-based royalties, in accordance with the relevant agreement. Variable payments, contingent on achieving additional milestones, are included in the transaction price based on most likely amount method. Amounts included in the transaction price are recognized only when it is probable that a significant reversal of cumulative revenues will not occur, usually upon achievement of the specific milestone, in accordance with the relevant agreement. Sales-based royalties are not included in the transaction price. Rather, they are recognized as the related sale occurs, due to the specific exception of ASC 606 for sales-based royalties in licensing of intellectual properties.
| m. |
Income taxes
|
| 1) |
Deferred taxes
|
The Company accounts for income taxes in accordance with ASC 740, “Income Taxes” (“ASC 740”). ASC 740 prescribes the use of the liability method whereby deferred tax asset and liability account balances are determined based on differences between the financial reporting and tax bases of assets and liabilities and are measured using the enacted tax rates and laws that will be in effect when the differences are expected to reverse. The Company provides a valuation allowance, if necessary, to reduce deferred tax assets to their estimated realizable value if it is more likely than not that a portion or all of the deferred tax assets will not be realized, based on the weight of available positive and negative evidence. Deferred tax liabilities and assets are classified as non-current.
| 2) |
Uncertainty in income taxes
|
The Company follows a two-step approach in recognizing and measuring uncertain tax positions. The first step is to evaluate the tax position for recognition by determining if the available evidence indicates that it is more likely than not that the position will be sustained based on technical merits. If this threshold is met, the second step is to measure the tax position as the largest amount that has more than a 50% likelihood of being realized upon ultimate settlement.
F - 12
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 2 - SIGNIFICANT ACCOUNTING POLICIES (continued):
| n. |
Leases
|
Right of Use ("ROU") assets represent the Company’s right to use an underlying asset for the lease term and lease liabilities represent the Company’s obligation to make lease payments arising from the lease. Operating lease ROU assets and liabilities are recognized at commencement date based on the present value of lease payments over the lease term. The Company’s lease terms may include options to extend or terminate the lease when it is reasonably certain that the Company will exercise that option.
The Company uses the implicit rate when readily determinable. As the Company’s leases do not provide an implicit rate, the Company uses its estimated incremental borrowing rate based on the information available at commencement date in determining the present value of lease payments. Lease expense for lease payments is recognized on a straight-line basis over the lease term. The Company elected to not separate lease and non-lease components for the leases. The Company elected the practical expedient of the short-term lease recognition exemption for all leases with a term shorter than 12 months.
Additionally, the company applies the portfolio approach to account for operating lease ROU asset and liabilities for certain car leases and incremental borrowing rates.
| o. |
Concentration of credit risks
|
Financial instruments that potentially subject the Company to concentration of credit risk consist principally of cash and cash equivalents, bank deposits and marketable securities and certain receivables. The Company deposits cash and cash equivalents with highly rated financial institutions (Israeli banks). In addition, all marketable securities carry a high rating or are government insured. The Company has not experienced any material credit losses in these accounts and does not believe it is exposed to significant credit risk on these instruments.
| p. |
Income (loss) per share
|
Basic income (loss) per share is computed on the basis of the net income (loss) for the period divided by the weighted average number of ordinary shares outstanding during the period. Diluted income (loss) per share is based upon the weighted average number of ordinary shares and of ordinary shares equivalents outstanding when dilutive. Ordinary share equivalents include outstanding stock options, restricted shares and warrants, which are included under the treasury stock method when dilutive. The calculation of diluted income (loss) per share does not include 1,260,984 , 3,271,507 and 3,397,834 options, restricted shares and warrants for the years ended December 31, 2019, 2020 and 2021, respectively, because their effect would be anti-dilutive.
F - 13
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 2 - SIGNIFICANT ACCOUNTING POLICIES (continued):
| q. |
Fair value measurement
|
Fair value is based on the price that would be received from the sale of an asset or that would be paid to transfer a liability in an orderly transaction between market participants at the measurement date. In order to increase consistency and comparability in fair value measurements, the guidance establishes a fair value hierarchy that prioritizes observable and unobservable inputs used to measure fair value into three broad levels, which are described as follows:
Level 1: Quoted prices (unadjusted) in active markets that are accessible at the measurement date for assets or liabilities. The fair value hierarchy gives the highest priority to Level 1 inputs.
Level 2: Observable prices that are based on inputs not quoted on active markets but corroborated by market data.
Level 3: Unobservable inputs are used when little or no market data is available. The fair value hierarchy gives the lowest priority to Level 3 inputs.
In determining fair value, the Company utilizes valuation techniques that maximize the use of observable inputs and minimize the use of unobservable inputs to the extent possible and considers counterparty credit risk in its assessment of fair value.
Due to the short term nature and/or low-risk nature of the Company's cash and cash equivalents, bank deposits, restricted cash, receivables from collaborative arrangements, restricted long-term deposits, accrued expenses (under other account payable), operating leases liabilities and other liabilities, their carrying amounts approximates their fair value.
F - 14
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 3 — MARKETABLE SECURITIES
The following table sets forth the Company’s marketable securities for the indicated period:
|
December 31,
|
||||||||
|
2020
|
2021
|
|||||||
|
Level 2 securities:
|
||||||||
|
U.S government and agency bonds
|
$
|
|
|
|
||||
|
Other foreign government bonds
|
|
|
||||||
|
Corporate bonds*
|
|
|
||||||
|
Total
|
$
|
|
$
|
|
||||
* Investments in Corporate bonds rated A or higher.
The Company’s debt securities are classified within Level 2 because it uses quoted market prices or alternative pricing sources and models utilizing market observable inputs to determine their fair value.
The cost of marketable securities As of December 31, 2021 is $
The table below sets forth a summary of the changes in the fair value of the Company’s marketable securities for the years ended December 31, 2020 and 2021:
|
December 31,
|
||||||||
|
2020
|
2021
|
|||||||
|
Balance at beginning of the year
|
$
|
|
|
|
||||
|
Additions
|
|
|
||||||
|
Sale or maturity
|
(
|
)
|
(
|
)
|
||||
|
Changes in fair value during the year
|
(
|
)
|
|
|
||||
|
Balance at end of the year
|
$
|
|
|
|
||||
As of December 31, 2021, all the Company’s debt securities are due within one year.
F - 15
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 4 — PROPERTY AND EQUIPMENT
|
|
December 31
|
|||||||
|
|
2020
|
2021
|
||||||
|
Cost:
|
||||||||
|
Laboratory equipment
|
$
|
$
|
||||||
|
Office equipment and furniture
|
||||||||
|
Computers and software
|
||||||||
|
Leasehold improvements
|
||||||||
|
Less:
|
||||||||
|
Accumulated depreciation and amortization
|
( |
)
|
( |
)
|
||||
|
Property and equipment, net
|
$
|
$
|
||||||
Depreciation and amortization expense totaled $887 , $946 and $880 for the years ended December 31, 2019, 2020 and 2021, respectively.
NOTE 5 — EMPLOYEE SEVERANCE BENEFITS
The Company is required to make severance payments upon dismissal of an employee or upon termination of employment in certain circumstances. The severance payment liability to the employees (based upon length of service and the latest monthly salary — one month’s salary for each year employed) is recorded on the Company’s balance sheet under “Liability for employee rights upon retirement.” The liability is recorded as if it was payable at each balance sheet date on an undiscounted basis.
In accordance with the current employment terms starting in August 2014 with all of its employees (Section 14 of the Israeli Severance Pay Law, 1963), the Company makes regular deposits with certain insurance companies for accounts controlled by each applicable employee in order to secure the employee’s retirement benefit obligation. The Company is fully relieved from any severance pay liability with respect to each such employee after it makes the payments on behalf of the employee. The liability accrued in respect of these employees and the amounts funded, as of the respective agreement dates, are not reflected in the Company balance sheet, as the amounts
funded are not under the control and management of the Company and the pension or severance pay risks have been irrevocably transferred to the applicable insurance companies (the “Contribution Plan”).
With regard to the period before August 2014, the liability is funded in part from the purchase of insurance policies or by the establishment of pension funds with dedicated deposits in the funds. The amounts used to fund these liabilities are included in the balance sheets under “Funds in respect of employee rights upon retirement.” These policies are the Company’s assets.
The amounts of severance payment expenses were $402 , $428 and $445 for the years ended December 31, 2019, 2020 and 2021, respectively, of which $363 , $408 and $404 in the years ended December 2019, 2020 and 2021, respectively, were in respect of the Contribution Plan.
The Company expects to contribute approximately $404 in the year ending December 31, 2022 to insurance companies in connection with its expected severance liabilities for that year.
F - 16
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 6 — COMMITMENTS :
| a. |
Royalty Commitments:
|
| 1) |
The Company is obligated to pay royalties to the IIA on proceeds from the sale of products developed from research and development activities that were funded, partially, by grants from the IIA.
|
Under the specific terms of the funding arrangements with the IIA, royalties of 3.5 % to 25 % are payable on the sale of products developed with funding received from the IIA, which payments shall not exceed, in the aggregate, 300 % of the amount of the grant received (dollar linked), plus interest at annual rate based on LIBOR.
Up to December 31, 2021, the Company had recognized and received grants from the IIA in the aggregate amount of $1,430 (no grants were received in the years ended December 31, 2019, 2020 and 2021). Through December 31, 2021, the Company recorded an accumulated royalty expense of $2,109 as royalties to the IIA with respect to revenue recognized through December 31, 2021($32 , $25 and $23 were recorded in 2019, 2020 and 2021 accordingly, as an expense in the consolidated statements of operations).
Up to December 31, 2021, the Company had recognized and received grants from the IIA in the aggregate amount of $
| 2) |
The Company has an agreement, that was amended several times (hereafter — the agreements) with Yissum Research Development Company (hereafter — “Yissum”), the technology-licensing arm of the Hebrew University of Jerusalem.
|
According to the agreements, the Company received from Yissum an exclusive and a non-exclusive license for the commercialization of certain Yissum patents. According to the agreements the Company shall pay Yissum:
Royalties of 1.5 % of net sales related to certain patents. 1.5 % – 8 % of proceeds received by the Company for the sub-license or license of certain patents.
Royalty expenses in immaterial amounts were recorded in 2019, 2020 and 2021 in respect of these agreements.
According to the agreements, the Company may continue commercial use of certain Yissum’s patents in connection with the products and subject to the obligation to pay Yissum the royalties and the sub-license fees.
The Company granted rights to a third party for use and commercialization of certain Yissum patents.
| b. |
Lease Agreements
|
The Company leases offices and vehicles under operating leases. For leases with terms greater than 12 months, the Company records right of use assets and lease liabilities at the present value of lease payments over the leases term.
Offices
The Company leases office spaces and research and development facilities under several agreements. These agreements are linked to the change in the Israeli consumer price index and expire in . These agreements are classified as operating leases and presented under operating lease right-of-use assets and operating leases liabilities. A restricted deposit of $136 has been deposited in order to secure the agreement.
F - 17
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 6 — COMMITMENTS (continued):
Vehicles
The Company has entered into operating lease agreements for vehicles used by its employees for a period of 3 years. These contracts are classified as operating leases and presented under operating lease right-of-use assets and operating leases liabilities.
Lease Position
The table below presents the lease-related assets and liabilities recorded on the consolidated balance sheet:
|
As of
December 31, |
||||||||
|
2020
|
2021
|
|||||||
|
Assets
|
||||||||
|
Operating Leases
|
||||||||
|
Operating lease right-of-use assets
|
$
|
$
|
||||||
|
Liabilities
|
||||||||
|
Current liabilities
|
||||||||
|
Current maturities of operating leases
|
$
|
$
|
||||||
|
Long-term liabilities
|
||||||||
|
Non-current operating leases
|
$
|
$
|
||||||
|
Weighted Average Remaining Lease Term
|
||||||||
|
Operating leases
|
||||||||
|
Weighted Average Discount Rate
|
||||||||
|
Operating leases
|
%
|
%
|
||||||
Lease Costs
The table below presents certain information related to lease costs of operating leases for the year ended December 31, 2021:
|
Year
Ended
December 31,
|
||||||||
|
2020
|
2021
|
|||||||
|
Operating lease cost:
|
$
|
|
$
|
|
||||
F - 18
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 6 — COMMITMENTS (continued):
The table below presents supplemental cash flow information related to leases for the year ended December 31, 2021:
|
Year Ended
December 31,
|
||||||||
|
2020
|
2021
|
|||||||
|
Cash paid for amounts included in the measurement of leases liabilities:
|
||||||||
|
Operating cash flows from operating leases
|
$
|
$
|
||||||
Undiscounted Cash Flows
The table below reconciles the undiscounted cash flows for each of the first five years and total of the remaining years to the operating lease liabilities recorded on the consolidated balance sheet:
|
Operating
Leases
|
||||
|
For the year ending December 31, 2021
|
||||
|
2022
|
$
|
|||
|
2023
|
||||
|
2024
|
||||
|
Total minimum lease payments
|
||||
|
Less: amount of lease payments representing interest
|
( |
)
|
||
|
Present value of future minimum lease payments
|
||||
|
Less: Current maturities of operating leases
|
||||
|
Long-term operating leases liabilities
|
||||
|
$
|
||||
| c. |
In June 2008, the Company entered into a Master Clinical Trial Services Agreement with a third party, which was later amended in April 2017, to retain its services as a clinical research organization for certain product candidate subject to task work orders to be issued by the Company. During 2018, the Company entered into six additional task orders. As consideration for its services the Company will pay a total amount of approximately $
|
| d. |
In 2016 through 2020, the Company entered into several collaboration agreements mainly with one third party (the "Partner") for the development, manufacturing and commercialization of several product candidates (including an agreement assumed by the Company in August 2018, following the transfer of an in-process research and development product candidate from a related party). In November 2021, the Company entered into a new agreement (the "New Agreement") with the Partner, to sell its rights to the Partner in relation to ten generic collaborative agreements between the parties. Under the New Agreement, the Company has retained collaboration rights to two generic programs related to four generic drug candidates. See detailed information in note 7b.
|
| e. |
In October 2017, the Company entered into a Clinical Development Master Services Agreement with a third party, to retain it as clinical research organization for certain product candidate, subject to task work orders to be issued by the Company. As consideration for its services the Company will pay a total amount of approximately $
|
F - 19
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 7 — COLLABORATION AGREEMENTS
| a. |
In 2007, the Company granted rights to a third party for use and commercialization of a product for skin protection. Under this agreement, the Company is entitled to royalties during the years
|
| b. |
In 2016 through 2020, the Company entered into several collaboration agreements mainly with one Partner for the development, manufacturing and commercialization of several generic product candidates. Under the agreements, the Partner is obligated to conduct regulatory, scientific, clinical and technical activities necessary to develop the product and prepare and file ANDA, with the FDA and gain regulatory approval. The Company participates in the development of the product candidates, including participation in joint steering committees and is obligated for sourcing the active pharmaceutical ingredient (API) during the development phase.
Upon FDA approval, the Partner has exclusive rights and is required to use diligent efforts to commercialize these products in territories defined under the agreements, including all required sales, marketing and distributing activities associated with the agreements. The Company is entitled to a share of the Partner's gross profits related to the sale of the products, as such term is defined in each of the agreements.
|
During the years ended December 31, 2019, 2020 and 2021, the Company recognized collaboration revenues related to sales of products in the U.S. under these agreements in the amounts of $22,775 , $8,673 and $3,303 , respectively.
These Agreements are considered to be within the scope of ASC 808, as the parties are active participants and exposed to the risks and rewards of the collaborative activity. The Company recognizes collaboration revenues when the related sales occur.
In November 2021, the Company entered into a New Agreement with the Partner, to sell its rights in relation to ten generic collaborative agreements between the parties, including the agreements for two approved generic drug products. Under the New Agreement, the Company has retained collaboration rights to two generic programs related to four generic drug candidates. Following the signing of the New Agreement, the Company is no longer entitled to receive its share in profit as detailed above.
Under the terms of the New Agreement, effective as of November 1, 2021, the Company will unconditionally receive $21.5 million over 24 months, in lieu of its share in future gross profits for the two approved generic drug products and its potential gross profits for eight unapproved generic programs. The Company received $1,250 as an upfront payment and $20,250 in eight equal quarterly instalments. The New Agreement also provides that effective as of November 1, 2021, the Company will cease paying any outstanding and future operational costs related to these collaborative agreements.
NOTE 8 – LICENSE AGREEMENTS:
In June 2021, the Company entered into two exclusive license agreements with Galderma for the commercialization of two of the Company most advanced investigational drug products (Twyneo® and Epsolay®) in the United States. The Company is entitled to up to $7.5 million per product in upfront payments and regulatory approval milestone payments assuming 2021 approval of each respective product. The Company is also eligible to receive tiered double-digit royalties ranging from mid-teen to high-teen percentage of net sales as well as up to $9 million in sales milestone payments.
F - 20
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 8 – LICENSE AGREEMENTS (continued):
According to the agreement, the Company has an option to regain commercialization rights five years following first commercialization. In the third quarter of 2021, the Company received $7.5 million for Twyneo® and $4 million for Epsolay® of upfront payments, which are refundable if FDA approval for each respective product is not received by December 31, 2021. On July 27, 2021, the Company announced that the FDA approved the Company’s first proprietary drug product, Twyneo®. See note 1. Since FDA approval for Epsolay® had not been received as of December 31, 2021, the Company is required to refund the $4 million upfront payment, which is recorded under " Other accounts payable" in the Company’s balance sheet. In March 2022, the Company has refunded the $4 million upfront payment to Galderma.
NOTE 9— SHARE CAPITAL
| a. |
Ordinary shares
|
Rights of the Company’s ordinary shares
Each ordinary share is entitled to one vote. The holder of the ordinary shares is also entitled to receive dividends whenever funds are legally available, when and if declared by the Board of Directors. Since its inception, the Company has not declared any dividends.
| 1) |
On August 12, 2019, the Company completed an underwritten follow-on public offering, in which it issued
The total proceeds received from the offering, net of issuance costs, were approximately $
|
| 2) |
On February 19, 2020, the Company completed an underwritten public offering, in which it issued
|
In addition, and in parallel to the public offering, the Company signed an agreement for a private placement with its controlling shareholder for an additional investment of approximately $5,000 in consideration of 454,628 ordinary shares and 454,628 warrants to purchase up to 363,702 ordinary shares, at the same terms of the underwritten public offering mentioned above. The private placement agreement was contingent on certain conditions and was approved by the company’s shareholders on April 8, 2020. The total proceeds of $5,000 were received in April 2020.
| 3) |
In July 2021, the Company entered into an ATM sales agreement with Jefferies LLC ("Jefferies"), pursuant to which the Company is entitled, at its sole discretion, to offer and sell through Jefferies, acting as sales agent, Shares having an aggregate offering price of up to $
|
From the effective date of the agreement through the issuance date of this report, 41,154 shares were sold under the program for total gross proceeds of approximately $0.5 million, leaving an available balance under the facility of approximately $24.5 million as of the issuance date of this report.
F - 21
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 9— SHARE CAPITAL (continued):
| b. |
Share-based compensation:
|
| 1) |
Option plan
|
In December, 2014, the Company’s Board of Directors approved a Share Incentive Plan (hereafter — the Plan) and reserved a pool of 629,025 ordinary shares, par value NIS 0.1 each, or such other number as the Board may determine, subject to certain terms and conditions as defined in the Plan. According to the Plan, the Company may issue shares or restricted shares, may grant options or restricted share units and other share-based awards (hereafter — the awards) to the Company's employees, consultants, directors and other service providers.
The Plan is designed to enable the Company to grant awards to purchase Ordinary Shares under various and different tax regimes including, without limitation: pursuant and subject to Section 102 of the Israeli Tax Ordinance and pursuant and subject to Section 3(i) of the Israeli Tax Ordinance and under Internal revenue Code Section 422.
The awards may be exercised after vesting and in accordance with vesting schedules which will be determined by the Board of Directors for each grant. The maximum term of the awards is 10 years. The fair value of each option granted under this Plan is estimated using the Black-Scholes option pricing method. Expected volatility is based on the historical volatility of the company and of comparable peer companies.
The risk-free interest rate assumption is based on observed interest rates appropriate for the expected term of the options granted in dollar terms. The expected term of the options is estimated based on the simplified method, as its historical experience for options grants as a public company is insufficient.
In December 2019, the Company’s Board of Directors approved an increase of the ordinary shares that may be issued under the Company’s Plan by reserving an additional amount of912,230 ordinary shares.
In December 2019, the Company’s Board of Directors approved an increase of the ordinary shares that may be issued under the Company’s Plan by reserving an additional amount of
As of December 31, 2021, 753,578 ordinary shares remain available for future grants under the Plan.
| 2) |
Options grants
|
|
| a. |
Option granted to employees and directors
|
During the twelve months ended December 31, 2021, the Company granted 248,600 options to employees and directors:
| i. |
In January 2021 and March 2021, the Company granted a total of
The options vest over a period of |
| ii. |
In February 2021, the Company granted a total of
The options vest over a period of |
F - 22
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 9 — SHARE CAPITAL (continued):
The fair value of options granted in 2019 and 2021 was $485 and $1,061 , respectively. No options were granted in 2020. The underlying data used for computing the fair value of the options are as follows:
|
2019
|
2021
|
|||||
|
Value of one ordinary share
|
$
|
|
$ |
|||
|
Dividend yield
|
|
|
||||
|
Expected volatility
|
|
|
|
|
||
|
Risk-free interest rate
|
|
|
|
|
||
|
Expected term
|
|
|
The total unrecognized compensation cost of employee options at December 31, 2021 is $
The following table summarizes the number of options granted to employees under the Plan for the year ended December 31, 2021, and related information:
|
Year ended December 31
|
||||||||||||
|
2021
|
||||||||||||
|
Number of options
|
Weighted average exercise price
|
Weighted average remaining contractual life
|
||||||||||
|
Options outstanding at the beginning of the year
|
$
|
|||||||||||
|
Granted
|
|
$
|
- | |||||||||
|
Exercised
|
(
|
)
|
$
|
- | ||||||||
|
Expired
|
(
|
)
|
$
|
- | ||||||||
|
Forfeited
|
(
|
)
|
$
|
- | ||||||||
|
Options outstanding at the end of the year
|
$
|
|||||||||||
|
Options exercisable at the end of the year
|
$
|
|||||||||||
| b. |
Option granted to non-employees
The total unrecognized compensation cost of non-employees' options at December 31, 2021 is $
|
F - 23
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 9— SHARE CAPITAL (continued)
The following table summarizes the number of options granted to non-employees under the Plan for the year ended December 31, 2021, and related information:
|
Year ended December 31
|
||||||||||||
|
2021
|
||||||||||||
|
Number of options |
Weighted average exercise price |
Weighted average |
||||||||||
|
Options outstanding at the beginning of the year
|
$
|
|||||||||||
|
Granted
|
||||||||||||
|
Options outstanding at the end of the year
|
$
|
|||||||||||
|
Options exercisable at the end of the year
|
$
|
|||||||||||
| c. |
The aggregate intrinsic value of the total outstanding and of total exercisable options as of December 31, 2021 is approximately $
|
| d. |
Restricted Share Units (RSUs) granted to Directors
In February 2018 and September 2018, the board of directors approved and recommended the Company shareholders to approve a total grant of |
|
|
e. |
The following table illustrates the effect of share-based compensation on the statements of operations: |
|
Year ended
December 31 |
||||||||||||
|
2019
|
2020
|
2021
|
||||||||||
|
Research and development expenses
|
$
|
$
|
$
|
|||||||||
|
General and administrative expenses
|
$
|
$
|
$
|
|||||||||
|
$
|
$
|
$
|
||||||||||
F - 24
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 10 - TAXES ON INCOME
| a. |
Tax rates in Israel
|
The Company is taxed in accordance with Israeli tax laws. The corporate tax rates applicable to 2019, 2020 and 2021 is 23
| b. |
Tax rates for the U.S Subsidiary
|
The subsidiary is taxed according to U.S. tax laws. The Company’s income is taxed in the United States at the federal rate of 21 %.
| c. |
Tax benefits under the Law for the Encouragement of Capital Investments, 1959 (the “Investment Law”)
|
Under the Investment Law, including Amendment No. 60 to the Investment Law that was published in April 2005, by virtue of the Benefited Enterprise program for certain of its facilities; the Company may be entitled to various tax benefits.
The main benefit arising from such status is the reduction in tax rates on income derived from a Benefited Enterprise. The extent of such benefits depends on the location of the enterprise. Since the Company’s facilities are not located in “national development zone A,” income derived from Benefited Enterprises will be tax exempt for a period of two years and then have a reduced tax rate for a period of up to an additional eight years.
The period of tax benefits, as described above, is limited to 12 years from the beginning of the Benefited Enterprise election year (2012). As of December 31, 2021, the period of benefits has not yet commenced.
In the event of distribution of cash dividends from income, which was tax exempt as above, the amount distributed will be subject to the tax rate it was exempted from. The Company is entitled to claim accelerated depreciation in respect of equipment used by the approved enterprises during five tax years.
Entitlement to the above benefits is conditioned upon the Company fulfilling the conditions stipulated by the Investment Law and regulations published thereunder.
In the event of failure to comply with these conditions, the benefits may be canceled and the Company may be required to refund the amount of the benefits, in whole or in part, with the addition of linkage differences to the Israeli consumer price index and interest.
The Investment Law was amended as part of the Economic Policy Law for the years 2011 – 2012 (the “Amendment”), which became effective on January 1, 2011 and was further amended in August 2013 and January 2017.
Under the 2017 Amendment, and provided the conditions stipulated therein are met, income derived by Preferred Companies from ‘Preferred Technological Enterprises’ (“PTE”) (as defined in the 2017 Amendment), would be subject to reduced corporate tax rates of 7.5% in Development Zone “A” and 12% elsewhere, or 6% in case of a ‘Special Preferred Technological Enterprise’ (“SPTE”) as defined in the 2017 Amendment) regardless of the company’s geographical location within Israel. A Preferred Company distributing dividends from income derived from its PTE or SPTE, would subject the recipient to a 20% tax (or lower, if so provided under an applicable tax treaty). The 2017 Amendment further provides that, in certain circumstances, a dividend distributed to a corporate shareholder who is not an Israeli resident for tax purposes would be subject to a 4% tax (inter alia, if the amount of foreign investors in the distributing company exceeds 90%). Such taxes would generally be withheld at source by the distributing company.
F - 25
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 10- TAXES ON INCOME (continued)
On June 14, 2017, the Encouragement of Capital Investments Regulations (Preferred Technology Income and Capital Profits for a Technological Enterprise), 2017 (the “Regulations”) were published, which adopted Action 5 under the base erosion and profit shifting (“BEPS”) regulations. The Regulations describe, inter alia, the mechanism used to determine the calculation of the benefits under the PTE and under the SPTE Regime and determine certain requirements relating to documentation of intellectual property for the purpose of the PTE. According to these provisions, a company that complies with the terms under the PTE regime may be entitled to certain tax benefits with respect to income generated during the company’s regular course of business and derived from the preferred intangible asset (as determined in the Investments Law), excluding income derived from intangible assets used for marketing and income attributed to production activity. In the event that intangible assets used for marketing purposes generate over 10% of the PTE’s income, the relevant portion, calculated using a transfer pricing study, would be subject to regular corporate income tax. If such income does not exceed 10%, the PTE will not be required to exclude the marketing income from the PTE’s total income. The Regulations set a presumption of direct production expenses plus 10% with respect to income related to production, which can be countered by the results of a supporting transfer pricing study. Tax rates applicable to such production income expenses will be similar to the tax rates under the Preferred Enterprise regime, to the extent such income would be considered as eligible. In order to calculate the preferred income, the PTE is required to take into account the income and the research and development expenses that are attributed to each single preferred intangible asset. Nevertheless, it should be noted that the transitional provisions allow companies to take into account the income and research and development expenses attributed to all of the preferred intangible assets they have.
Under the transitional provisions of the law, a company is allowed to continue to enjoy the tax benefits available under the law prior to its amendment until the end of the period of benefits, as defined in the law. In each year during the period of benefits as a Benefited Enterprise, the Company will be able to opt for application of the amendment, thereby making available the tax rates discussed above. The Company’s election to apply the amendment is irrecoverable.
As of December 31, 2021, the Company’s management decided not to adopt the application of the Amendment.
There is no assurance that future taxable income of the Company will qualify as Benefited or Preferred income or that the benefits described above will be available to the Company in the future.
| d. |
Tax assessments
|
Tax assessments filed by the Company through the year 2016 are considered to be final.
F - 26
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 10 - TAXES ON INCOME (continued)
| e. |
Losses for tax purposes carried forward to future years
|
As of December 31, 2021, the Company had approximately $170.8 million of net carry forward tax losses which are available to reduce future taxable income with no limited period of use.
| f. |
Deferred income taxes:
|
| December, 31 | ||||||||
|
2020
|
2021
|
|||||||
|
In respect of:
|
||||||||
|
Net operating loss carry forward
|
$
|
$
|
||||||
|
Research and development expenses
|
||||||||
|
Other
|
||||||||
|
Less – valuation allowance
|
( |
)
|
( |
)
|
||||
|
Net deferred tax assets
|
$
|
$
|
||||||
| g. |
Reconciliation of theoretical tax expenses to actual expenses
|
Actual tax expenses are in respect of the U.S. subsidiary. The primary reconciling items between the statutory tax rate of the Company and the effective rate are the full valuation allowance of deferred tax assets and nondeductible expenses in relation to the operations in Israel.
| h. |
Roll forward of valuation allowance
|
|
Balance at January 1, 2019
|
$
|
|||
|
Additions
|
||||
|
Balance at December 31, 2019
|
$
|
|||
|
Additions
|
||||
|
Balance at December 31, 2020
|
$
|
|||
|
Additions
|
||||
|
Balance at December 31, 2021
|
$
|
|
| i. |
Provision for uncertain tax positions
|
As of December 31, 2020, and 2021, the Company does not have a provision for uncertain tax positions.
F - 27
SOL-GEL TECHNOLOGIES LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued)
(U.S. dollars in thousands, except share and per share amounts)
NOTE 11 — SUPPLEMENTARY FINANCIAL STATEMENT INFORMATION
Other accounts payables and accruals
|
December, 31
|
||||||||
|
2020
|
2021
|
|||||||
|
Accrued expenses
|
$
|
|||||||
|
Employees payables
|
||||||||
|
Institutions
|
||||||||
|
Refundable upfront payment
|
||||||||
|
Other
|
- | |||||||
|
$
|
$
|
|||||||
NOTE 12 — RELATED PARTIES
| a. |
Related parties include the Controlling Shareholder and companies under his control, the Board of Directors and the Executive Officers of the Company.
|
| b. |
As to options and restricted shares granted to directors and executive officers, see note 9d.
|
NOTE 13 — SUBSEQUENT EVENTS
In March 2022, the Company has refunded the $4 million upfront payment to Galderma, See detailed information in note 8.
F - 28