The table below
sets forth our cash and cash equivalents, restricted cash,
short-term bank deposits, and capitalization as of June 30, 2020.
The information set forth in the following table should be read in
conjunction with, and is qualified in its entirety by, reference to
our audited and unaudited financial statements and the notes
thereto incorporated by reference into this prospectus.
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|
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As of
June 30, 2020
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|
|
|
|
(in
thousands, except share and per share data)
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|
|
Cash and cash equivalents,
restricted cash and short-term bank deposits
|
|
$
|
136,066
|
|
|
Shareholder’s equity:
|
|
|
|
|
|
Ordinary shares, NIS 0.01 nominal
value: 200,000,000 shares authorized and 82,694,209 shares issued
and outstanding
|
|
|
227
|
|
|
Additional paid-in capital
|
|
|
500,792
|
|
|
Accumulated deficit
|
|
|
(371,552
|
)
|
|
Total shareholders’ equity
|
|
|
129,467
|
|
|
Total capitalization
|
|
$
|
129,467
|
|
The number of
outstanding ordinary shares set forth above excludes, as of June
30, 2020:
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•
|
5,481,735 ordinary shares issuable
upon the exercise of outstanding options to purchase ordinary
shares granted under our 2010 Share Incentive Plan, having a
weighted average exercise price of $4.33 per share;
|
|
•
|
an aggregate 3,464,441 ordinary
shares issuable and reserved for future grants under our 2010 Share
Incentive Plan; and
|
|
•
|
749,104 ordinary shares issuable
upon the exercise of warrants issued to certain institutional
investors in a registered direct offering completed in June 2018,
with an exercise price of $4.74 per share.
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REASONS
FOR THE OFFER AND USE OF PROCEEDS
We cannot assure
you that we will receive any proceeds in connection with securities
offered pursuant to this prospectus. Unless otherwise indicated in
the applicable prospectus supplement, we intend to use any net
proceeds from the sale of securities under this prospectus for our
operations and for other general corporate purposes, which may
include working capital, intellectual property protection and
enforcement, capital expenditures, investments, acquisitions or
collaborations, pre-clinical and clinical development of our
product candidates, research and development and product
development and repayment or refinancing of indebtedness or other
corporate borrowings. We may set forth additional information on
the use of proceeds from the sale of securities we offer under this
prospectus in a prospectus supplement relating to the specific
offering. We have not determined the amount of net proceeds to be
used specifically for the foregoing purposes. As a result, our
management will have broad discretion in the allocation of the net
proceeds. Pending use of the net proceeds, we would expect to
invest any proceeds in a variety of capital preservation
instruments, including short-term and long-term, investment‑grade,
interest‑bearing instruments.
DESCRIPTION OF SECURITIES
The descriptions
of the securities contained in this prospectus, together with the
applicable prospectus supplements, summarize the material terms and
provisions of the various types of securities that we may offer. We
will describe in the applicable prospectus supplement relating to
any securities the particular terms of the securities offered by
that prospectus supplement. If we so indicate in the applicable
prospectus supplement, the terms of the securities may differ from
the terms we have summarized below.
We may sell from
time to time, in one or more offerings, ordinary shares, debt
securities, rights, warrants to purchase ordinary shares and units
comprising any combination of these securities.
In this
prospectus, we refer to the ordinary shares, debt securities,
rights, warrants and units that may be offered by us collectively
as “securities.” The total dollar amount of all securities that we
may issue under this prospectus will not exceed $350,000,000.
This prospectus
may not be used to consummate a sale of securities unless it is
accompanied by a prospectus supplement.
DESCRIPTION OF ORDINARY SHARES
Our authorized
share capital consists of 200,000,000 ordinary shares, nominal
(par) value NIS 0.01 per share. As of June 30, 2020, 82,694,209
ordinary shares were issued and outstanding. Subject to our amended
and restated articles of association, or our Articles, fully paid
ordinary shares of the Company confer on the holders thereof rights
to attend and to vote at general meetings of the shareholders.
Subject to the rights of holders of shares with limited or
preferred rights which may be issued in the future, the ordinary
shares of the Company confer upon the holders thereof equal rights
to vote, to receive dividends and to participate in the
distribution of the assets of the Company upon its winding-up, in
proportion to the amount paid up or credited as paid up on account
of the nominal value of the shares held by them respectively and in
respect of which such dividends are being paid or such distribution
is being made, without regard to any premium paid in excess of the
nominal value, if any. All outstanding ordinary shares are validly
issued and fully paid.
Registration
Number and Purpose of the Company
Our registration
number with the Israeli Registrar of Companies is 51-177-963-9. Our
purpose as set forth in our Articles is to engage in any lawful act
or activity for which companies may be organized under the
Companies Law.
Rights Attached
to Our Shares
Subject to our
Articles, fully paid ordinary shares confer on the holders thereof
rights to attend and to vote at general meetings of the
shareholders. Subject to the rights of holders of shares with
limited or preferred rights which may be issued in the future, our
ordinary shares confer upon the holders thereof equal rights to
receive dividends and to participate in the distribution of our
assets upon our winding-up, in proportion to the amount paid up or
credited as paid up on account of the nominal value of the shares
held by them respectively and in respect of which such dividends
are being paid or such distribution is being made, without regard
to any premium paid in excess of the nominal value, if any. No
preferred shares are currently authorized. All outstanding ordinary
shares are validly issued and fully paid.
Voting
Rights
Subject to the
provisions of our Articles, holders of ordinary shares have one
vote for each ordinary share held by such shareholder of record, on
all matters submitted to a vote of shareholders. Shareholders may
vote in person, by proxy or by proxy card. Alternatively,
shareholders who hold shares through members of the Tel Aviv Stock
Exchange may vote electronically via the electronic voting system
of the Israel Securities Authority, or Electronic Vote. These
voting rights may be affected by the grant of any special voting
rights to the holders of a class of shares with preferential rights
that may be authorized in the future. As our ordinary shares do not
have cumulative voting rights in the election of directors, the
holders of the majority of the shares present and voting at a
shareholders meeting have the power to elect all of our
directors.
Transfer of Shares
Our ordinary
shares which have been fully paid-up are transferable by submission
of a proper instrument of transfer together with the certificate of
the shares to be transferred and such other evidence of title, as
our Board of Directors may require, unless such transfer is
prohibited by another instrument or by applicable securities
laws.
Dividends
Under the
Companies Law, dividends may be distributed only out of profits
available for dividends as determined by the Companies Law,
provided that there is no reasonable concern that the distribution
will prevent the Company from being able to meet its existing and
anticipated obligations when they become due. If the company does
not meet the profit requirement, a court may nevertheless allow the
company to distribute a dividend, as long as the court is convinced
that there is no reasonable concern that such distribution will
prevent the company from being able to meet its existing and
anticipated obligations when they become due. Pursuant to our
Articles, no dividend shall be paid other than out of the profits
of the Company. Generally, under the Companies Law, the decision to
distribute dividends and the amount to be distributed is made by a
company’s board of directors.
Our Articles
provide that our Board of Directors, may, subject to the Companies
Law, from time to time, declare and cause the Company to pay such
dividends as may appear to the Board of Directors to be justified
by the profits of our Company. Subject to the rights of the holders
of shares with preferential, special or deferred rights that may be
authorized in the future, our profits which shall be declared as
dividends shall be distributed according to the proportion of the
nominal (par) value paid up or credited as paid up on account of
the shares held at the date so appointed by the Company and in
respect of which such dividend is being paid, without regard to the
premium paid in excess of the nominal (par) value, if any. The
declaration of dividends does not require shareholders’
approval.
To date, we have
not declared or distributed any dividend and we do not intend to
pay cash dividends on our ordinary shares in the foreseeable
future.
Liquidation Rights
In the event of
our winding up on liquidation or dissolution, subject to applicable
law and after satisfaction of liabilities to creditors, our assets
available for distribution among the shareholders shall be
distributed to the holders of ordinary shares in proportion to the
amount paid up or credited as paid up on account of the nominal
value of the shares held by them respectively and in respect of
which such distribution is being made, without regard to any
premium paid in excess of the nominal value, if any. This
liquidation right may be affected by the grant of limited or
preferential rights as to liquidation to the holders of a class of
shares that may be authorized in the future.
Redemption Provisions
We may, subject
to applicable law and to our Articles, issue redeemable shares and
redeem the same upon such terms and conditions as determined by our
Board of Directors.
Limitation of Liability
Under our
Articles, the liability of each shareholder for the Company’s
obligations is limited to the unpaid sum, if any, owing to the
Company in consideration for the issuance of the shares held by
such shareholder.
Modification of Class Rights
Our amended and
restated Memorandum of Association, or Memorandum, provides that we
may amend the Memorandum in order to increase, consolidate or
divide or otherwise amend our share capital by a simple majority of
the voting power present at a shareholders meeting as currently
provided in our Articles or by such other majority as shall be set
forth in our Articles from time to time.
Pursuant to our
Articles, if at any time our share capital is divided into
different classes of shares, the rights attached to any class,
unless otherwise provided by our Articles, may be modified or
abrogated by the Company, subject to the consent in writing of, or
sanction of a resolution passed by, the holders of a majority of
the issued shares of such class at a separate general meeting of
the holders of the shares of such class.
Limitations on
the Rights to Own Securities
Our Articles and
Israeli law do not restrict the ownership or voting of ordinary
shares by non-residents or persons who are not citizens of Israel,
though such ownership is prohibited under applicable law with
respect to subjects of nations which are in a state of war with
Israel.
Changes in
Authorized Share Capital
Our Articles
enable us, among others, to increase or reduce our authorized share
capital. Any such changes are subject to the provisions of the
Companies Law and our Articles and must be approved by a resolution
duly passed by a simple majority of our shareholders at a general
meeting by voting on such change in capital.
Shareholders’
Meetings and Resolutions
Our Articles
provide that our annual general meeting shall be held once in every
calendar year at such time (within a period of not more than
fifteen months after the last preceding annual general meeting),
and place determined by our Board of Directors. Our Board of
Directors may, in its discretion, convene additional special
shareholders meetings and, pursuant to the Companies Law, must
convene a meeting upon the demand of: (a) two directors or one
quarter of the directors in office; or (b) the holder or holders of
(i) 5% or more of our issued share capital and one percent or more
of our voting rights; or (ii) 5% or more of our voting rights. All
demands for shareholders meetings must set forth the items to be
considered at that meeting.
The chairman of
the Board of Directors, or any other director or office holder of
the Company which may be designated for this purpose by the Board
of Directors, shall preside as chairman at each of our general
meetings. If there is no such chairman, or if the appointed
chairman is unwilling to take the chair, or if he shall have
indicated in advance that he will not be attending, or if at any
meeting such chairman is not present within thirty (30) minutes
after the time fixed for holding the meeting, then those present at
the meeting shall choose someone present to be chairman of the
meeting. The office of chairman shall not, by itself, entitle the
holder thereof to vote at any general meeting nor shall it entitle
a second or casting vote.
According to
regulations promulgated pursuant to the Companies Law and governing
the terms of notice and publication of shareholder meetings of
public companies, or the General Meeting Regulations, holder(s) of
one percent or more of the Company’s voting rights may propose any
matter appropriate for deliberation at a shareholder meeting to be
included on the agenda of a shareholder meeting, generally by
submitting a proposal within seven days of publicizing the
convening of a shareholder meeting, or within fourteen days, if the
Company publishes at least 21 days prior to publicizing the proxy
materials for a shareholder meeting, a preliminary notice stating
its intention to convene such meeting, the agenda thereof,
shareholder’s right to propose a matter to be included on the
agenda of such meeting and company’s right not to examine such
proposals received upon termination of 14 day period from the
publication of such notice. Any such proposal must further comply
with the information requirements under applicable law and our
Articles. The agenda for a shareholder meeting is determined by the
Board of Directors and must include matters in respect of which the
convening of a shareholder meeting was demanded and any matter
requested to be included by holder(s) of one percent of the
Company’s voting rights, as detailed above.
Pursuant to the
Companies Law and the General Meeting Regulations shareholder
meetings generally require prior notice of not less than 21 days,
and not less than 35 days in certain cases. Pursuant to our
Articles, we are not required to deliver or serve notice of a
general meeting or of any adjournments thereof to any shareholder.
However, subject to applicable law and stock exchange rules and
regulations, we will publicize the convening of a general meeting
in any manner reasonably determined by us, and any such publication
shall be deemed duly made, given and delivered to all shareholders
on the date on which it is first made, posted, filed or published
in the manner so determined by us in our sole discretion.
The function of
the annual general meeting is to elect directors, receive and
consider the profit and loss account, the balance sheet and the
ordinary reports and accounts of the directors and auditors,
appoint auditors and transact any other business which under our
Articles or applicable law may be transacted by the shareholders of
the Company in a general meeting.
Pursuant to our
Articles, the quorum required for a meeting of shareholders
consists of at least two shareholders, present in person, by proxy,
by proxy card or by Electronic Vote and holding shares conferring
in the aggregate twenty-five percent (25%) or more of the voting
power of the Company. If within half an hour from the time
appointed for the meeting a quorum is not present, the meeting
shall stand adjourned to the same day in the following week at the
same time and place or to such other later day, time and place as
the Board of Directors may determine and specify in the publication
with respect to the Meeting. At the adjourned meeting, any number
of participants will constitute a quorum present, in person, by
proxy, by proxy card or by Electronic Vote; provided, however, that
special general meeting which was convened by the Board upon the
demand of shareholders or directors then in office, as detailed
above, or directly by such shareholders or directors, in accordance
the terms of the Companies Law, shall be cancelled.
Generally, under
the Companies Law and our Articles, shareholder resolutions are
deemed adopted if approved by the holders of a simple majority of
the voting rights represented at the meeting, in person, by proxy,
by proxy card or by Electronic Vote, and voting on the matter,
unless a different majority is required by law or pursuant to our
Articles such as a resolution for the voluntary winding up of our
Company which requires the approval of holders of 75% of the voting
power presented and voting at the meeting, or resolutions
concerting certain related party transactions as set forth in
Sections 267 and 270-275 of the Companies Law.
Change of
Control
Merger
Under the
Companies Law, a merger is generally required to be approved by the
shareholders and board of directors of each of the merging
companies. If the share capital of the company that will not be the
surviving company is divided into different classes of shares, the
approval of each class is also required, unless determined
otherwise by the court. Similarly, unless an Israeli court
determines otherwise, a merger will not be approved if it is
objected to by shareholders holding a majority of the voting rights
participating and voting at the meeting (abstentions are
disregarded), after excluding the shares held by the other party to
the merger, by any person who holds 25% or more of the other party
to the merger or by anyone on their behalf, including by the
relatives of, or corporations controlled by, these persons. In
approving a merger, the board of directors of both merging
companies must determine that there is no reasonable concern that,
as a result of the merger, the surviving company will not be able
to satisfy its obligations to its creditors. Similarly, upon the
request of a creditor of either party to the proposed merger, an
Israeli court may prevent or delay the merger if it concludes that
there exists a reasonable concern that, as a result of the merger,
the surviving company will not be able to satisfy the obligations
of the merging parties. A court may also issue other instructions
for the protection of the creditors’ rights in connection with a
merger. Further, a merger may not be completed unless at least (i)
50 days have passed from the time that the requisite proposals for
the approval of the merger were filed with the Israeli registrar of
companies; and (ii) 30 days have passed since the merger was
approved by the shareholders of each party.
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 rule does not
apply if there is already another holder of 25% or more 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. These requirements do not apply if the acquisition (i)
occurs in the context of a private placement by the company that
received shareholder approval for the purpose of allowing the
purchaser to hold more than 25% of 45% of the voting rights in the
company, as the case may be, (ii) was from a shareholder holding
25% or more of the voting rights in the company and resulted in the
acquirer becoming a holder of 25% or more of the voting rights in
the company, or (iii) was from a holder of more than 45% of the
voting rights in the company and resulted in the acquirer becoming
a holder of more than 45% of the voting rights in the company. 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 controlling shareholders, holders of 25% or
more of the voting rights in the company and any person having a
personal interest in the acceptance of the tender offer).
In the event
that a special tender offer is made, a company’s board of directors
is required to express its opinion on the advisability of the
offer, or shall abstain from expressing any opinion if it is unable
to do so, provided that it gives the reasons for its abstention. An
office holder in a target company who, in his or her capacity as an
office holder, performs an action the purpose of which is to cause
the failure of an existing or foreseeable special tender offer or
is to impair the chances of its acceptance, is liable to the
potential purchaser and shareholders for damages, unless such
office holder acted in good faith and had reasonable grounds to
believe he or she was acting for the benefit of the company.
However, office holders of the target company may negotiate with
the potential purchaser in order to improve the terms of the
special tender offer and may further negotiate with third parties
in order to obtain a competing offer. Shares purchased in
contradiction to the tender offer rules under the Companies Law
will have no rights and will become dormant shares.
If a special
tender offer is accepted, then shareholders who did not respond to
or that had objected the offer may accept the offer within four
days of the last day set for the acceptance of the offer. In the
event that 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.
Full
Tender Offer
Under the
Companies Law, a person may not acquire shares in a public company
if, after the acquisition, the acquirer will hold more than 90% of
the shares or more than 90% of any class of shares of that company,
unless a tender offer is made to purchase all of the shares or all
of the shares of the particular class. The Companies Law also
generally provides that as long as a shareholder in a public
company holds more than 90% of the company’s shares or of a class
of shares, that shareholder shall be precluded from purchasing any
additional shares. In order for all of the shares that the
purchaser offered to purchase be transferred to him by operation of
law, one of the following needs to have occurred: (i) the
shareholders who declined or do not respond to the tender offer
hold less than 5% of the company’s outstanding share capital or of
the relevant class of shares and the majority of offerees who do
not have a personal interest in accepting the tender offer accepted
the offer, or (ii) the shareholders who declined or do not respond
to the tender offer hold less than 2% of the company’s outstanding
share capital or of the relevant class of shares.
A shareholder
that had his or her shares so transferred, whether he or she
accepted the tender offer or not, has the right, within six months
from the date of acceptance of the tender offer, to petition the
court to determine that the tender offer was for less than fair
value and that the fair value should be paid as determined by the
court. However, the purchaser may provide in its offer that
shareholders who accept the tender offer will not be entitled to
such rights.
If the
conditions set forth above are not met, the purchaser may not
acquire additional shares of the company from shareholders who
accepted the tender offer to the extent that following such
acquisition, the purchaser would own more than 90% of the company’s
issued and outstanding share capital. The above restrictions apply,
in addition to the acquisition of shares, to the acquisition of
voting power.
Transfer Agent
and Registrar
The transfer
agent and registrar for our ordinary shares is American Stock
Transfer & Trust Company, LLC.
The Nasdaq
Global Market and the Tel Aviv Stock Exchange
Our ordinary
shares are listed on The Nasdaq Global Market and the Tel Aviv
Stock Exchange under the symbol “CGEN.”
Warrants
As of June 30,
2020, we had warrants outstanding to purchase an aggregate 749,104
ordinary shares. See “Description of Warrants—Outstanding
Warrants.”
Share
History
The following is
a summary of the history of our share capital for the last three
years.
Ordinary Share Issuances
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Share Options. Since January 1, 2017
and through June 30, 2020, we have issued a total of 4,256,307
ordinary shares upon the exercise of share options.
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ATM Sales Agreement. In May 2018, we
entered into a Controlled Equity OfferingSM
Sales Agreement, or the ATM Sales Agreement, with Cantor Fitzgerald
& Co., or Cantor, as sales agent, pursuant to which we may
offer and sell, from time to time through Cantor, our ordinary
shares having an aggregate offering price of up to $25 million.
Under the ATM Sales Agreement, Cantor may sell Shares by any method
permitted by law and deemed to be an “at the market offering” as
defined in Rule 415(a)(4) promulgated under the Securities Act,
including sales made directly on the Nasdaq Global Market, or on
any other existing trading market for the ordinary shares. As of
December 31, 2019, we sold 7,245,268 shares through the ATM Sales
Agreement for an aggregate purchase price of approximately $23.7
million. The program was terminated in 2019.
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Registered Direct Offering. In June
2018, we entered into a definitive securities purchase agreement
with certain institutional investors and a placement agency
agreement with JMP Securities LLC, in connection with a registered
direct offering which resulted in the issuance of 5,316,457 of our
ordinary shares at a purchase price of $3.95 per share. In
connection with the issuance of the ordinary shares, we also issued
warrants to purchase up to 4,253,165 additional ordinary shares.
The warrants have an exercise price of $4.74 per share and have a
term of five years from the date of issuance. Gross proceeds from
this offering were approximately $21 million, before deducting the
underwriting discounts and commissions and estimated offering
expenses payable by us. As of June 30, 2020, warrants to purchase
up to 749,104 ordinary shares remained outstanding (warrants to
purchase 3,504,061 ordinary shares were exercised as of such
date).
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Bristol-Myers
Squibb Securities Purchase Agreement. In October 2018, we and Bristol-Myers
Squibb entered into a Securities Purchase Agreement pursuant to
which Bristol-Myers Squibb purchased 2,424,243 ordinary shares
at a purchase price of $4.95 per share, which represented a 33%
premium over the average closing price on the last 20 Nasdaq
trading days. Gross proceeds from this private placement were
approximately $12 million.
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Public
Offering. In March
2020, we entered into an underwriting agreement with SVB Leerink
LLC and Stifel, Nicolaus & Company, Incorporated, as
representatives of several underwriters relating to the issuance
and sale in a public offering of 8,333,334 of our ordinary shares
at a price to the public of $9.00 per share (and a price of $8.46
per share to the underwriters). In addition, we granted the
underwriters a 30-day option to purchase additional ordinary shares
at the price set forth above. On April 14, 2020, we issued and
sold, pursuant to that underwriting agreement an additional 483,005
ordinary shares pursuant to the underwriters’ option specified
above. We sold a total of 8,816,339 ordinary shares in the
offering with gross proceeds of approximately $79.3
million.
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Authorized Share Capital
Our authorized
share capital is equal to NIS2,000,000 divided into 200,000,000
ordinary shares nominal (par) value NIS 0.01 per share.
DESCRIPTION OF DEBT SECURITIES
The following
description, together with the additional information we include in
any applicable prospectus supplements, summarizes the material
terms and provisions of the debt securities that we may offer under
this prospectus. While the terms we have summarized below will
apply generally to any future debt securities we may offer pursuant
to this prospectus, we will describe the particular terms of any
debt securities that we may offer in more detail in the applicable
prospectus supplement. If we so indicate in a prospectus
supplement, the terms of any debt securities offered under such
prospectus supplement may differ from the terms we describe below,
and to the extent the terms set forth in a prospectus supplement
differ from the terms described below, the terms set forth in the
prospectus supplement shall control.
We may sell from
time to time, in one or more offerings under this prospectus, debt
securities, which may be senior or subordinated. We will issue any
such senior debt securities or subordinated debt securities under
an indenture that we will enter into with a trustee to be named in
the indenture. We have filed a form of this document as an exhibit
to the registration statement, of which this prospectus is a part.
The indenture will be qualified under the Trust Indenture Act of
1939, as in effect on the date of the indenture. We use the term
“debenture trustee” to refer to the trustee under the
indenture.
The following
summaries of material provisions of the senior debt securities, the
subordinated debt securities and the indenture are subject to, and
qualified in their entirety by reference to, all the provisions of
the indenture applicable to a particular series of debt
securities.
General
The indenture
provides that debt securities may be issued from time to time in
one or more series and may be denominated and payable in foreign
currencies or units based on or relating to foreign currencies. The
indenture does not limit the amount of debt securities that may be
issued thereunder, and it provides that the specific terms of any
series of debt securities shall be set forth in, or determined
pursuant to, an authorizing resolution and/or a supplemental
indenture, if any, relating to such series.
We will describe
in each prospectus supplement the following terms relating to a
series of debt securities:
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title or designation;
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the aggregate principal amount and
any limit on the amount that may be issued;
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the currency or units based on or
relating to currencies in which debt securities of such series are
denominated and the currency or units in which principal or
interest or both will or may be payable;
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the maturity date and the date or
dates on which principal will be payable;
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the interest rate, which may be
fixed or variable, or the method for determining the rate and the
date interest will begin to accrue, the date or dates interest will
be payable and the record dates for interest payment dates or the
method for determining such dates;
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whether or not the debt securities
will be secured or unsecured, and the terms of any secured
debt;
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the terms of the subordination of
any series of subordinated debt;
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the place or places where payments
will be payable;
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our right, if any, to defer payment
of interest and the maximum length of any such deferral
period;
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the date, if any, after which, and
the price at which, we may, at our option, redeem the series of
debt securities pursuant to any optional redemption
provisions;
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the date, if any, on which, and the
price at which we are obligated, pursuant to any mandatory sinking
fund provisions or otherwise, to redeem, or at the holder’s option
to purchase, any series of debt securities;
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whether the indenture will restrict
our ability to pay dividends, or will require us to maintain any
asset ratios or reserves;
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whether we will be restricted from
incurring any additional indebtedness;
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a discussion of any material or
special U.S. federal income tax considerations applicable to a
series of debt securities;
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the denominations in which we will
issue the series of notes, if other than denominations of $1,000
and any integral multiple thereof; and
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any other specific terms,
preferences, rights or limitations of, or restrictions on, the debt
securities.
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We may issue debt securities that
provide for an amount less than their stated principal amount to be
due and payable upon declaration of acceleration of their maturity
pursuant to the terms of the indenture. We will provide you with
information on the federal income tax considerations and other
special considerations applicable to any of these debt securities
in the applicable prospectus supplement.
Conversion or
Exchange Rights
We will set forth in the prospectus
supplement the terms, if any, on which a series of debt securities
may be convertible into or exchangeable for our ordinary shares or
our other securities. We will include provisions as to whether
conversion or exchange is mandatory, at the option of the holder or
at our option. We may include provisions pursuant to which the
number of ordinary shares or our other securities that the holders
of the series of debt securities receive would be subject to
adjustment.
Consolidation,
Merger or Sale; No Protection in Event of a Change of Control or
Highly Leveraged Transaction
The indenture does not contain any
covenant that restricts our ability to merge or consolidate, or
sell, convey, transfer or otherwise dispose of all or substantially
all of our assets. However, any successor to or acquirer of such
assets must assume all of our obligations under the indenture or
the debt securities, as appropriate.
Unless we state otherwise in the
applicable prospectus supplement, the debt securities will not
contain any provisions that may afford holders of the debt
securities protection in the event we have a change of control or
in the event of a highly leveraged transaction (whether or not such
transaction results in a change of control), which could adversely
affect holders of debt securities.
Events of
Default Under the Indenture
The following are events of default
under the indenture with respect to any series of debt securities
that we may issue:
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if we fail to pay interest when due
and our failure continues for 90 days and the time for payment has
not been extended or deferred;
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if we fail to pay the principal, or
premium, if any, when due and the time for payment has not been
extended or delayed;
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if we fail to observe or perform
any other covenant set forth in the debt securities of such series
or the indenture, other than a covenant specifically relating to
and for the benefit of holders of another series of debt
securities, and our failure continues for 90 days after we receive
written notice from the debenture trustee or holders of not less
than a majority in aggregate principal amount of the outstanding
debt securities of the applicable series; and
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if we experience specified events
of bankruptcy, insolvency or reorganization.
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No event of default with
respect to a particular series of debt securities (except as to
certain events of bankruptcy, insolvency or reorganization)
necessarily constitutes an event of default with respect to any
other series of debt securities. The occurrence of an event of
default may constitute an event of default under any bank credit
agreements we may have in existence from time to time. In addition,
the occurrence of certain events of default or an acceleration
under the indenture may constitute an event of default under
certain of our other indebtedness outstanding from time to
time.
If an event of default with respect
to debt securities of any series at the time outstanding occurs and
is continuing, then the trustee or the holders of not less than a
majority in principal amount of the outstanding debt securities of
that series may, by a notice in writing to us (and to the debenture
trustee if given by the holders), declare to be due and payable
immediately the principal (or, if the debt securities of that
series are discount securities, that portion of the principal
amount as may be specified in the terms of that series) of and
premium and accrued and unpaid interest, if any, on all debt
securities of that series. Before a judgment or decree for payment
of the money due has been obtained with respect to debt securities
of any series, the holders of a majority in principal amount of the
outstanding debt securities of that series (or, at a meeting of
holders of such series at which a quorum is present, the holders of
a majority in principal amount of the debt securities of such
series represented at such meeting) may rescind and annul the
acceleration if all events of default, other than the non-payment
of accelerated principal, premium, if any, and interest, if any,
with respect to debt securities of that series, have been cured or
waived as provided in the indenture (including payments or deposits
in respect of principal, premium or interest that had become due
other than as a result of such acceleration). We refer you to the
applicable prospectus supplement(s) relating to any series of debt
securities that are discount securities for the particular
provisions relating to acceleration of a portion of the principal
amount of such discount securities upon the occurrence of an event
of default.
Subject to the terms of the
indenture, if an event of default under an indenture shall occur
and be continuing, the debenture trustee will be under no
obligation to exercise any of its rights or powers under such
indenture at the request or direction of any of the holders of the
applicable series of debt securities, unless such holders have
offered the debenture trustee reasonable indemnity. The holders of
a majority in principal amount of the outstanding debt securities
of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
debenture trustee, or exercising any trust or power conferred on
the debenture trustee, with respect to the debt securities of that
series, provided that:
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the direction so given by the
holder is not in conflict with any law or the indenture; and
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subject to its duties under the
Trust Indenture Act, the debenture trustee need not take any action
that might involve it in personal liability or might be unduly
prejudicial to the holders not involved in the proceeding.
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A holder of the debt securities of
any series will only have the right to institute a proceeding under
the indenture or to appoint a receiver or trustee, or to seek other
remedies if:
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the holder previously has given
written notice to the debenture trustee of a continuing event of
default with respect to that series;
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the holders of at least a majority
in aggregate principal amount of the outstanding debt securities of
that series have made written request, and such holders have
offered reasonable indemnity to the debenture trustee to institute
the proceeding as trustee; and
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the debenture trustee does not
institute the proceeding, and does not receive from the holders of
a majority in aggregate principal amount of the outstanding debt
securities of that series (or at a meeting of holders of such
series at which a quorum is present, the holders of a majority in
principal amount of the debt securities of such series represented
at such meeting) other conflicting directions within 60 days after
the notice, request and offer.
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These limitations do not apply to a
suit instituted by a holder of debt securities if we default in the
payment of the principal, premium, if any, or interest on, the debt
securities.
We will periodically file
statements with the applicable debenture trustee regarding our
compliance with specified covenants in the indenture.
Modification of
Indenture; Waiver
The debenture trustee and we may
change the indenture without the consent of any holders with
respect to specific matters, including:
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to fix any ambiguity, defect or
inconsistency in the indenture; and
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to change anything that does not
materially adversely affect the interests of any holder of debt
securities of any series issued pursuant to such indenture.
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In addition, under the indenture,
the rights of holders of a series of debt securities may be changed
by us and the debenture trustee with the written consent of the
holders of at least a majority in aggregate principal amount of the
outstanding debt securities of each series (or, at a meeting of
holders of such series at which a quorum is present, the holders of
a majority in principal amount of the debt securities of such
series represented at such meeting) that is affected. However, the
debenture trustee and we may make the following changes only with
the consent of each holder of any outstanding debt securities
affected:
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extending the fixed maturity of the
series of debt securities;
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reducing the principal amount,
reducing the rate of or extending the time of payment of interest,
or any premium payable upon the redemption of any debt
securities;
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reducing the principal amount of
discount securities payable upon acceleration of maturity;
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making the principal of or premium
or interest on any debt security payable in currency other than
that stated in the debt security; or
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reducing the percentage of debt
securities, the holders of which are required to consent to any
amendment or waiver.
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Except for certain specified
provisions, the holders of at least a majority in principal amount
of the outstanding debt securities of any series (or, at a meeting
of holders of such series at which a quorum is present, the holders
of a majority in principal amount of the debt securities of such
series represented at such meeting) may on behalf of the holders of
all debt securities of that series waive our compliance with
provisions of the indenture. The holders of a majority in principal
amount of the outstanding debt securities of any series may on
behalf of the holders of all the debt securities of such series
waive any past default under the indenture with respect to that
series and its consequences, except a default in the payment of the
principal of, premium or any interest on any debt security of that
series or in respect of a covenant or provision, which cannot be
modified or amended without the consent of the holder of each
outstanding debt security of the series affected; provided, however, that the holders of a
majority in principal amount of the outstanding debt securities of
any series may rescind an acceleration and its consequences,
including any related payment default that resulted from the
acceleration.
Discharge
Each indenture provides that we can
elect to be discharged from our obligations with respect to one or
more series of debt securities, except for obligations to:
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the transfer or exchange of debt
securities of the series;
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replace stolen, lost or mutilated
debt securities of the series;
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maintain paying agencies;
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hold monies for payment in
trust;
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compensate and indemnify the
trustee; and
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appoint any successor
trustee.
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In order to exercise our rights to
be discharged with respect to a series, we must deposit with the
trustee money or government obligations sufficient to pay all the
principal of, the premium, if any, and interest on, the debt
securities of the series on the dates payments are due.
Form, Exchange,
and Transfer
We will issue the debt securities
of each series only in fully registered form without coupons and,
unless we otherwise specify in the applicable prospectus
supplement, in denominations of $1,000 and any integral multiple
thereof. The indenture provides that we may issue debt securities
of a series in temporary or permanent global form and as book-entry
securities that will be deposited with, or on behalf of, The
Depository Trust Company or another depositary named by us and
identified in a prospectus supplement with respect to that
series.
At the option of the holder,
subject to the terms of the indenture and the limitations
applicable to global securities described in the applicable
prospectus supplement, the holder of the debt securities of any
series can exchange the debt securities for other debt securities
of the same series, in any authorized denomination and of like
tenor and aggregate principal amount.
Subject to the terms of the
indenture and the limitations applicable to global securities set
forth in the applicable prospectus supplement, holders of the debt
securities may present the debt securities for exchange or for
registration of transfer, duly endorsed or with the form of
transfer endorsed thereon duly executed if so required by us or the
security registrar, at the office of the security registrar or at
the office of any transfer agent designated by us for this purpose.
Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange or in the indenture, we will make
no service charge for any registration of transfer or exchange, but
we may require payment of any taxes or other governmental
charges.
We will name in the applicable
prospectus supplement the security registrar, and any transfer
agent in addition to the security registrar, that we initially
designate for any debt securities. We may at any time designate
additional transfer agents or rescind the designation of any
transfer agent or approve a change in the office through which any
transfer agent acts, except that we will be required to maintain a
transfer agent in each place of payment for the debt securities of
each series.
If we elect to redeem the debt
securities of any series, we will not be required to:
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issue, register the transfer of, or
exchange any debt securities of that series during a period
beginning at the opening of business 15 days before the day of
mailing of a notice of redemption of any debt securities that may
be selected for redemption and ending at the close of business on
the day of the mailing; or
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register the transfer of or
exchange any debt securities so selected for redemption, in whole
or in part, except the unredeemed portion of any debt securities we
are redeeming in part.
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Information
Concerning the Debenture Trustee
The debenture trustee, other than
during the occurrence and continuance of an event of default under
the indenture, undertakes to perform only those duties as are
specifically set forth in the indenture. Upon an event of default
under an indenture, the debenture trustee under such indenture must
use the same degree of care as a prudent person would exercise or
use in the conduct of his or her own affairs. Subject to this
provision, the debenture trustee is under no obligation to exercise
any of the powers given it by the indenture at the request of any
holder of debt securities unless it is offered reasonable security
and indemnity against the costs, expenses and liabilities that it
might incur.
Payment and
Paying Agents
Unless we otherwise indicate in the
applicable prospectus supplement, we will make payment of the
interest on any debt securities on any interest payment date to the
person in whose name the debt securities, or one or more
predecessor securities, are registered at the close of business on
the regular record date for the interest.
We will pay the principal of and
any premium and interest due on the debt securities of a particular
series at the office of the paying agents designated by us, except
that unless we otherwise indicate in the applicable prospectus
supplement, will we make interest payments by check which we will
mail to the holder. Unless we otherwise indicate in a prospectus
supplement, we will designate the corporate trust office of the
debenture trustee in the City of New York as our sole paying agent
for payments with respect to debt securities of each series. We
will name in the applicable prospectus supplement any other paying
agents that we initially designate for the debt securities of a
particular series. We will maintain a paying agent in each place of
payment for the debt securities of a particular series.
All money we pay to a paying agent
or the debenture trustee for the payment of the principal of or any
premium or interest on any debt securities which remains unclaimed
at the end of two years after such principal, premium or interest
has become due and payable will be repaid to us, and the holder of
the security thereafter may look only to us for payment
thereof.
Governing
Law
The indenture and the debt
securities will be governed by and construed in accordance with the
laws of the State of New York, except to the extent that the Trust
Indenture Act is applicable.
Subordination of
Subordinated Debt Securities
Our obligations pursuant to any
subordinated debt securities will be unsecured and will be
subordinate and junior in priority of payment to certain of our
other indebtedness to the extent described in a prospectus
supplement. The subordinated indenture does not limit the amount of
senior indebtedness we may incur. It also does not limit us from
issuing any other secured or unsecured debt.
General
We may issue
rights to purchase any of our securities or any combination
thereof. Rights may be issued independently or together with any
other offered security and may or may not be transferable by the
person purchasing or receiving the rights. In connection with any
rights offering to our shareholders, we may enter into a standby
underwriting arrangement with one or more underwriters pursuant to
which such underwriters will purchase any offered securities
remaining unsubscribed for after such rights offering. We may also
appoint a rights agent that may act solely as our agent in
connection with the rights that are sold. Any such agent will not
assume any obligation or relationship of agency or trust with any
of the holders of the rights. In connection with a rights offering
to our shareholders, we will distribute certificates evidencing the
rights and a prospectus supplement to our shareholders on the
record date that we set for receiving rights in such rights
offering.
The applicable
prospectus supplement will describe the following terms of rights
in respect of which this prospectus is being delivered:
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the title of such rights;
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the securities for which such
rights are exercisable;
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the exercise price for such
rights;
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the number of such rights issued
with respect to each ordinary share;
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the extent to which such rights are
transferable;
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if applicable, a discussion of the
material Israeli and U.S. income tax considerations applicable to
the issuance or exercise of such rights;
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the date on which the right to
exercise such rights shall commence, and the date on which such
rights shall expire (subject to any extension);
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the extent to which such rights
include an over-subscription privilege with respect to unsubscribed
securities;
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if applicable, the material terms
of any standby underwriting or other purchase arrangement, or any
agency agreement, that we may enter into in connection with the
rights offering; and
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any other terms of such rights,
including terms, procedures and limitations relating to the
exchange and exercise of such rights.
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Exercise of
Rights
Each right will
entitle the holder of the right to purchase for cash such
securities or any combination thereof at such exercise price as
shall in each case be set forth in, or be determinable as set forth
in, the prospectus supplement relating to the rights offered
thereby. Rights may be exercised at any time up to the close of
business on the expiration date for such rights set forth in the
prospectus supplement. After the close of business on the
expiration date, all unexercised rights will become void.
Rights may be
exercised as set forth in the prospectus supplement relating to the
rights offered thereby. Upon receipt of payment and the rights
certificate properly completed and duly executed at the corporate
trust office of the rights agent or any other office indicated in
the prospectus supplement, we will forward, as soon as practicable,
the securities purchasable upon such exercise. We may determine to
offer any unsubscribed offered securities directly to persons other
than shareholders, to or through agents, underwriters or dealers or
through a combination of such methods, including pursuant to
standby underwriting arrangements, as set forth in the applicable
prospectus supplement.
We may issue
warrants to purchase ordinary shares. We may issue warrants
independently or together with any other securities offered by any
prospectus supplement and the warrants may be attached to or
separate from those securities. Any series of warrants may be
issued under a separate warrant agreement, which may be entered
into between us and a warrant agent specified in a prospectus
supplement. Any such warrant agent will act solely as our agent in
connection with the warrants of such series and will not assume any
obligation or relationship of agency or trust with any of the
holders of the warrants. We will set forth further terms of the
warrants and any applicable warrant agreements in the applicable
prospectus supplement relating to the issuance of any warrants,
including, where applicable, the following:
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the title of the warrants;
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the aggregate number of the
warrants;
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the number of ordinary shares
purchasable upon exercise of the warrants;
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the designation and terms of the
securities, if any, with which the warrants are issued and the
number of the warrants issued with each such offered
security;
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the date, if any, on and after
which the warrants and the related securities will be separately
transferable;
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the price at which, and form of
consideration for which, each security purchasable upon exercise of
the warrants may be purchased;
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the date on which the right to
exercise the warrants will commence and the date on which the right
will expire;
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the minimum or maximum amount of
the warrants which may be exercised at any one time;
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any circumstances that will cause
the warrants to be deemed to be automatically exercised; and
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any other material terms of the
warrants.
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Outstanding
Warrants
In connection
with the issuance of the ordinary shares in our June 2018
registered direct offering, we also issued to certain institutional
investors warrants to purchase up to 4,253,165 additional ordinary
shares, out of which 749,104 were outstanding as of June 30, 2020.
The following is a brief summary of certain terms and conditions of
the warrants and is subject in all respects to the provisions
contained in the warrants.
Term
The warrants are
exercisable during the period beginning six months from the date of
issuance and ending at 5:00 P.M. on June 19, 2023.
Exercise Price
The exercise
price of the warrants is $4.74 per whole ordinary share. The
exercise price is subject to appropriate adjustment in the event of
certain stock splits, dividends, recapitalizations or similar
events affecting our ordinary shares.
Exercisability
Holders may
exercise the warrants beginning six months from June 19, 2018, the
date of issuance, and at any time during the applicable term of the
warrant. The warrants will be exercisable, at the option of each
holder, in whole or in part, by delivering to us a written notice
and, within one trading day of delivering such
notice, payment shall be made in full for the number of
ordinary shares purchased upon such exercise. If there is no
effective registration statement registering the issuance and sale
of the ordinary shares underlying the warrants, the holder may
exercise the warrant through a cashless exercise, in which case the
holder would receive upon such exercise the net number of ordinary
shares determined according to the formula set forth in the
warrant.
Exercise Limitation
Holders shall
not have the right to exercise the warrant, to the extent that
after giving effect to such exercise, such holder, together with
such holder’s affiliates and any other persons acting as a group
together with the holder or any of the holder’s affiliates, would
beneficially own in excess of 4.99% of the ordinary shares
outstanding immediately after giving effect to such exercise which
limitation may be increased to 9.99% by the holder.
No
Fractional Shares
No fractional
ordinary shares will be issued upon exercise of the warrants. If
there is a fractional share issuable upon exercise, we will, at our
election, either pay a cash adjustment or it will be rounded up to
the nearest whole share.
Transferability
Subject to
applicable laws and the restriction on transfer set forth in the
warrant, the warrant may be transferred at the option of the holder
upon surrender of the warrant to us together with the appropriate
instruments of transfer.
Authorized Shares
During the
period the warrants are outstanding, we will reserve from our
authorized and unissued ordinary shares a sufficient number of
shares to provide for the issuance of ordinary shares underlying
the warrants upon the exercise of the warrants.
Exchange Listing
We have not and
do not plan on applying to list the warrants on Nasdaq, the TASE,
any other national securities exchange or any other nationally
recognized trading system.
Purchase Rights
Subject to
certain limitations, if at any time during the period the warrants
are outstanding we grant, issue or sell certain of our securities
pro rata to the record holders of our ordinary shares, the warrant
holders shall be entitled to participate upon the same terms in an
amount up to the number of ordinary shares acquirable upon complete
exercise of the warrant.
Pro
Rata Distributions
Subject to
certain limitations, if at any time during the period the warrants
are outstanding we declare or make any dividend or other
distribution of assets to our ordinary shareholders, the warrant
holders shall be entitled to distributions upon the same terms in
an amount up to the number of ordinary shares acquirable upon
complete exercise of the warrant.
Fundamental Transactions
In the event of
any fundamental transaction, as defined in the warrants and
generally including any consolidation or merger with or into
another entity, the sale of all or substantially all of our assets,
tender offer or exchange offer, reorganization or recapitalization
through which another entity acquires us, or reclassification of
our ordinary shares, then the successor entity in such transaction
will assume in writing all of our obligations under the warrant
pursuant to written agreements, including an adjusted exercise
price equal to the value for the ordinary shares reflected by the
terms of such fundamental transaction, and exercisable for a
corresponding number of shares equivalent to the ordinary shares
acquirable and receivable upon exercise of the warrant prior to
such fundamental transaction.
Failure
to Timely Deliver Securities
If we
fail for any reason to deliver to a holder the number of shares of
ordinary shares due to the holder pursuant to the holder’s written
notice on or before the second trading day following receipt of
such notice, we will pay to the holder, in cash, as liquidated
damages and not as a penalty, for each $1,000 of ordinary shares
subject to such exercise, $10 per trading day (increasing to $20
per trading day on the fifth trading day after such liquidated
damages begin to accrue) for each trading day until such ordinary
shares are delivered or the holder rescinds such exercise.
Right
as a Shareholder
Except as
otherwise provided in the warrants or by virtue of such holder’s
ownership of our ordinary shares, the holders of the warrants do
not have the rights or privileges of holders of our ordinary
shares, including any voting rights, until they exercise their
warrants.
Waivers
and Amendments
Any term of the
warrants issued in the offering may be amended or waived with our
written consent and the written consent of the holder.
As specified in
the applicable prospectus supplement, we may issue units consisting
of our ordinary shares, debt securities, rights, warrants or any
combination of such securities. The applicable prospectus
supplement will describe:
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the terms of the units and of the
ordinary shares, debt securities, rights and/or warrants comprising
the units, including whether and under what circumstances the
securities comprising the units may be traded separately;
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the terms of any unit agreement
governing the units or any arrangement with an agent that may act
on our behalf in connection with the unit offering; and
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the provisions for the payment,
settlement, transfer or exchange of the units.
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We may sell the
offered securities on a negotiated or competitive bid basis to or
through underwriters or dealers. We may also sell the securities
directly to corporate partners in various programs of the Company,
institutional investors or other purchasers or through agents. We
will identify any underwriter, dealer, or agent involved in the
offer and sale of the securities, and any applicable commissions,
discounts and other terms constituting compensation to such
underwriters, dealers or agents, in a prospectus supplement.
We may
distribute our securities from time to time in one or more
transactions:
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at a fixed price or prices, which
may be changed;
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at market prices prevailing at the
time of sale;
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at prices related to such
prevailing market prices; or
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Only
underwriters named in the prospectus supplement are underwriters of
our securities offered by the prospectus supplement.
If underwriters
are used in the sale of our securities, such securities will be
acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. Unless stated
otherwise in a prospectus supplement, the obligation of any
underwriters to purchase our securities will be subject to certain
conditions and the underwriters will be obligated to purchase all
of the applicable securities if any are purchased. If a dealer is
used in a sale, we may sell our securities to the dealer as
principal. The dealer may then resell the securities to the public
at varying prices to be determined by the dealer at the time of
resale. In effecting sales, dealers engaged by us may arrange for
other dealers to participate in the resales.
We or our agents
may solicit offers to purchase securities from time to time. Unless
stated otherwise in a prospectus supplement, any agent will be
acting on a best efforts basis for the period of its appointment.
In addition, we may enter into derivative, sale or forward sale
transactions with third parties, or sell securities not covered by
this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement indicates, in
connection with such transaction, the third parties may, pursuant
to this prospectus and the applicable prospectus supplement, sell
securities covered by this prospectus and the applicable prospectus
supplement. If so, the third party may use securities borrowed from
us or others to settle such sales and may use securities received
from us or others to close out any related short positions. We may
also loan or pledge securities covered by this prospectus and the
applicable prospectus supplement to third parties, who may sell the
loaned securities or, in the event of default in the case of a
pledge, sell the pledged securities pursuant to this prospectus and
the applicable prospectus supplement. The third party in such
transactions will be an underwriter and will be identified in the
applicable prospectus supplement or in a post-effective
amendment.
In connection
with the sale of our securities, underwriters or agents may receive
compensation (in the form of discounts, concessions or commissions)
from us or from purchasers of securities for whom they may act as
agents. Underwriters may sell securities to or through dealers, and
such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents. Underwriters,
dealers and agents that participate in the distribution of our
securities may be deemed to be “underwriters” as that term is
defined in the Securities Act, and any discounts or commissions
received by them from us and any profits on the resale of the
shares by them may be deemed to be underwriting discounts and
commissions under the Securities Act. Compensation as to a
particular underwriter, dealer or agent might be in excess of
customary commissions and will be in amounts to be negotiated in
connection with transactions involving our securities. We will
identify any such underwriter or agent, and we will describe any
such compensation paid, in the related prospectus supplement.
Maximum compensation to any underwriters, dealers or agents will
not exceed any applicable limitations of the Financial Industry
Regulatory Authority, Inc.
Underwriters,
dealers and agents may be entitled, under agreements with us, to
indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Act.
If stated in a
prospectus supplement, we will authorize agents and underwriters to
solicit offers by certain specified institutions or other persons
to purchase our securities at the public offering price set forth
in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specific date in the
future. Institutions with whom such contracts may be made include
commercial savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and
other institutions, but shall in all cases be subject to our
approval. Such contracts will be subject only to those conditions
set forth in the prospectus supplement, and the prospectus
supplement will set forth the commission payable for solicitation
of such contracts. The obligations of any purchase under any such
contract will be subject to the condition that the purchase of the
securities shall not be prohibited at the time of delivery under
the laws of Israel and of the jurisdiction to which the purchaser
is subject. The underwriters and other agents will not have any
responsibility in respect of the validity or performance of such
contracts.
If underwriters
or dealers are used in the sale, until the distribution of our
securities is completed, SEC rules may limit the ability of any
such underwriters and selling group members to bid for and purchase
the securities. As an exception to these rules, representatives of
any underwriters are permitted to engage in certain transactions
that stabilize the price of the securities. Such transactions may
consist of bids or purchases for the purpose of pegging, fixing or
maintaining the price of the securities. If the underwriters create
a short position in the securities in connection with the offering
(in other words, if they sell more shares than are set forth on the
cover page of the prospectus supplement), the representatives of
the underwriters may reduce that short position by purchasing
securities in the open market. The representatives of the
underwriters also may elect to reduce any short position by
exercising all or part of any over-allotment option we may grant to
the underwriters, as described in the prospectus supplement. In
addition, the representatives of the underwriters may impose a
penalty bid on certain underwriters and selling group members. This
means that if the representatives purchase securities in the open
market to reduce the underwriters’ short position or to stabilize
the price of our securities, they may reclaim the amount of the
selling concession from the underwriters and selling group members
who sold those securities as part of the offering. In general,
purchases of a security for the purpose of stabilizing or to reduce
a short position could cause the price of the security to be higher
than it might be in the absence of such purchases. The imposition
of a penalty bid might also have the effect of causing the price of
the securities to be higher than it would otherwise be. If
commenced, the representatives of the underwriters may discontinue
any of the transactions at any time. These transactions may be
affected on any exchange on which our securities are traded, in the
over-the-counter market, or otherwise.
Certain of the
underwriters or agents and their associates may engage in
transactions with and perform services for us or our affiliates in
the ordinary course of their respective businesses.
Certain matters of Israeli law with respect to the legality of the
issuance of the ordinary shares offered by this prospectus will be
passed upon for us by Shibolet & Co., Law Firm, Tel Aviv,
Israel. Certain matters of U.S. law will be passed upon for us
by Cooley LLP, New York, New York.
The
consolidated financial statements of Compugen Ltd. appearing in the
Annual Report on Form 20-F for the year ended December 31, 2019 and
the effectiveness of Compugen Ltd. internal control over financial
reporting as of December 31, 2019, as filed with the SEC on
February 24, 2020, have been audited by Kost Forer Gabbay &
Kasierer (a Member of Ernst & Young Global), independent
registered public accounting firm, as set forth in their report
thereon, included therein, and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by
reference in reliance upon such reports pertaining to such
consolidated financial statements and the effectiveness of Compugen
Ltd. internal control over financial reporting as of the respective
dates, given on the authority of such firm as experts in accounting
and auditing. The address of Kost Forer Gabbay & Kasierer is
144 Menachem Begin Road, Building A, Tel-Aviv, Israel
6492102.
The following
are the estimated expenses related to the filing of the
registration statement of which this prospectus forms a part, all
of which will be paid by us. In addition, we anticipate incurring
additional expenses in the future in connection with the offering
of our securities pursuant to this prospectus. Any such additional
expenses will be disclosed in a prospectus supplement.
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SEC
registration fee
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$
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45,430
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Printing
expenses*
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1,000
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Legal fees and
expenses*
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25,000
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Accounting
fees and expenses*
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5,000
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Miscellaneous*
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570
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Total*
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$
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77,000
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__________
*Estimated
INCORPORATION OF CERTAIN INFORMATION BY
REFERENCE
The SEC allows
us to “incorporate by reference” the information we file with it,
which means that we can disclose important information to you by
referring you to those documents. The information incorporated by
reference is considered to be part of this prospectus and
information we file later with the SEC will automatically update
and supersede this information. The documents we are incorporating
by reference as of their respective dates of filing are:
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Annual Report on Form 20-F for the
year ended December 31, 2019, filed on February 24, 2020 and as
amended on February 27, 2020 (File Nos. 000-30902);
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Reports on Form 6-K filed on
January 9, 2020, February 20, 2020, February 20, 2020, March 9,
2020, March 11, 2020, March 12, 2020, March 13, 2020, March 17,
2020, April 6, 2020, April 15, 2020, April 27, 2020, May 6, 2020,
May 27, 2020, June 1, 2020 and July 30, 2020 (File Nos.
000-30902); and
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the description of our ordinary
shares contained in our Form 8-A filed on August 2, 2000 (File No.
000-30902), as updated and amended by the disclosure contained
under “Description of Ordinary Shares” in this registration
statement on Form F-3.
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All subsequent
annual reports on Form 20-F, Form 40-F or Form 10-K filed by us,
all subsequent reports on Forms 10-Q and 8-K filed by us, and all
subsequent reports on Form 6-K filed by us that are identified by
us as being incorporated by reference shall be deemed to be
incorporated by reference into this prospectus and deemed to be a
part hereof after the date of this prospectus but before the
termination of the offering by this prospectus.
Any statement
contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for all purposes to the extent
that a statement contained in this prospectus, or in any other
subsequently filed document which is also incorporated or deemed to
be incorporated by reference, modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this prospectus.
You may request,
orally or in writing, a copy of these documents, which will be
provided to you at no cost, by contacting:
Ari Krashin
Chief Financial Officer
Compugen Ltd.
26 Harokmim Street
Holon 5885849, Israel
Phone: +972-3-765-8585
Fax: +972-3-765-8555
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
This prospectus
is part of a registration statement on Form F-3 that we filed with
the SEC relating to the securities offered by this prospectus,
which includes additional information. You should refer to the
registration statement and its exhibits for additional information.
Whenever we make reference in this prospectus to any of our
contracts, agreements or other documents, the references are not
necessarily complete, and you should refer to the exhibits attached
to the registration statement for copies of the actual contract,
agreements or other document.
We are subject
to the informational requirements of the Exchange Act applicable to
foreign private issuers. We, as a “foreign private issuer,” are
exempt from the rules under the Exchange Act prescribing certain
disclosure and procedural requirements for proxy solicitations, and
our office holders, directors and principal shareholders are exempt
from the reporting and “short-swing” profit recovery provisions
contained in Section 16 of the Exchange Act, with respect to their
purchases and sales of shares. In addition, we are not required 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. So long as we are
a foreign private issuer, we anticipate filing with the SEC, within
three months after the end of each fiscal year, an Annual Report on
Form 20-F containing financial statements audited by an independent
accounting firm. We also furnish or file with the SEC Reports of
Foreign Private Issuer on Form 6-K and other information with the
SEC as required by the Exchange Act. You can review our SEC filings
and the registration statement by accessing the SEC’s internet site
at http://www.sec.gov.
We also maintain
a website at www.cgen.com,
through which you can access certain SEC filings. The information
set forth on our website is not part of this prospectus.
ENFORCEABILITY OF CIVIL LIABILITIES
We are
incorporated under the laws of the State of Israel. Service of
process upon us and upon our directors and office holders, almost
all of whom reside outside the United States, may be difficult to
obtain within the United States. Furthermore, because the majority
of our assets and investments, and almost all of our directors and
officer holders are located outside the United States, any judgment
obtained in the United States against us or any of them may not be
collectible within the United States.
Additionally, it
may be difficult to assert U.S. securities law claims in original
actions instituted in Israel. Israeli courts may refuse to hear a
claim based on an alleged violation of U.S. securities laws because
Israel is not the most appropriate forum to bring such a claim. In
addition, even if an Israeli court agrees to hear such a claim, it
may determine that Israeli law and not U.S. law is applicable to
the claim. If U.S. law is found to be applicable, the content of
applicable U.S. law must be proved as a fact which can be a
time-consuming and costly process. Certain matters of procedure
will also be governed by Israeli law. There is little binding case
law in Israel that addresses the matters described above.
Subject to
specified time limitations and legal procedures, Israeli courts may
enforce a United States judgment in a civil matter which, subject
to certain exceptions, is non-appealable, including judgments based
upon the civil liability provisions of the Securities Act and the
Exchange Act and including a monetary or compensatory judgment in a
non-civil matter, provided that among other things:
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the judgments are obtained after
due process before a court of competent jurisdiction, according to
the laws of the state in which the judgment is given and the rules
of private international law currently prevailing in Israel;
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the prevailing law of the foreign
state in which the judgments were rendered allows for the
enforcement of judgments of Israeli courts;
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adequate service of process has
been effected and the defendant has had a reasonable opportunity to
be heard and to present his or her evidence;
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the judgments are not contrary to
public policy of Israel, and the enforcement of the civil
liabilities set forth in the judgment is not likely to impair the
security or sovereignty of Israel;
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the judgments were not obtained by
fraud and do not conflict with any other valid judgments in the
same matter between the same parties;
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an action between the same parties
in the same matter is not pending in any Israeli court at the time
the lawsuit is instituted in the foreign court;
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the judgment is not subject to any
further appeal procedures; and
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the judgment is enforceable
according to the laws of Israel and according to the law of the
foreign state in which the relief was granted.
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Generally, an
Israeli court will not enforce a foreign judgment if the motion for
enforcement was filed more than five years after the date of its
award in the United States, unless Israel and the United States
have agreed otherwise on a different period, or if an Israeli court
finds exceptional reasons justifying the delay.
If a foreign
judgment is enforced by an Israeli court, it generally will be
payable in Israeli currency, which can then be converted into
non-Israeli currency and transferred out of Israel. The usual
practice in an action before an Israeli court to recover an amount
in a non-Israeli currency is for the Israeli court to issue a
judgment for the equivalent amount in Israeli currency at the rate
of exchange in force on the date of the judgment, but the judgment
debtor may make payment in foreign currency. Pending collection,
the amount of the judgment of an Israeli court stated in Israeli
currency ordinarily will be linked to the Israeli consumer price
index plus interest at the annual statutory rate set by Israeli
regulations prevailing at the time. Judgment creditors must bear
the risk of unfavorable exchange rates.
INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
Insofar as
indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officer holders and controlling
persons, we have been informed that in the opinion of the SEC such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
The
information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective.
This prospectus is not an offer to sell securities and it is not
soliciting an offer to buy securities in any state where the offer
or sale is not permitted.
Subject to Completion, Dated July 30, 2020
PROSPECTUS
749,104 Ordinary Shares Issuable Upon
Exercise of Outstanding Warrants
This prospectus
relates to the offer and sale by us of an aggregate 749,104 of our
ordinary shares that are issuable at an exercise price of $4.74 per
share upon the exercise of our currently outstanding warrants that
we issued to certain institutional investors in a registered direct
offering in June 2018.
We will receive
the proceeds from any cash exercises of the outstanding warrants.
Additionally, in the event there is no effective registration
statement at the time of exercise, the warrants may be exercised on
a cashless basis. If the warrants are exercised on a cashless
basis, we would not receive any cash payment upon any exercise of
the warrants. Each warrant is exercisable at any time until its
expiration date, which is June 19, 2023. If all of these
outstanding warrants are exercised for cash, we will receive
aggregate proceeds of approximately $3.6 million for the
warrants.
Our ordinary
shares are traded on The Nasdaq Global Market and on the Tel Aviv
Stock Exchange under the symbol “CGEN.” The closing sale price of
our ordinary shares on The Nasdaq Global Market and on the Tel Aviv
Stock Exchange on July 27, 2020, was $14.82 and $14.43 per share,
respectively. The currency in which our stock is traded on the Tel
Aviv Stock Exchange is the New Israeli Shekel, or NIS. The above
closing price on the Tel Aviv Stock Exchange represents a
conversion from NIS to dollar amounts in accordance with the dollar
- NIS conversion rate as of July 27, 2020, as reported by the Bank
of Israel.
An
investment in our securities involves a high degree of risk. See
the section entitled “Risk Factors” on page SA-3 of this prospectus
and under similar headings in any amendment or supplement to this
prospectus or in any filing with the Securities and Exchange
Commission that is incorporated by reference herein.
Neither
the Securities and Exchange Commission nor any state or other
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
This
prospectus may not be used to consummate sales of securities unless
it is accompanied by a prospectus supplement.
The
date of this prospectus is
,2020
TABLE
OF CONTENTS
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SA-i
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SA-1
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SA-3
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SA-5
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SA-6
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SA-7
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SA-8
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SA-9
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SA-15
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SA-17
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SA-18
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SA-19
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SA-19
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SA-19
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SA-19
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SA-21
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SA-21
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SA-22
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This prospectus
is part of a registration statement that we filed with the
Securities and Exchange Commission, or the SEC, using a “shelf”
registration process. Under this shelf registration process, we may
from time to time sell ordinary shares, debt securities, rights,
warrants or units comprising any combination of these securities,
in one or more offerings up to a total dollar amount of
$350,000,000. Under this prospectus, we may from time to time offer
and sell an aggregate 749,104 of our ordinary shares that are
issuable at an exercise price of $4.74 upon the exercise of our
previously issued warrants. The $3,550,753 of securities that may
be sold under this prospectus are included in the $350,000,000 of
securities that may be sold under the registration statement.
As permitted by
the rules and regulations of the SEC, the registration statement,
of which this prospectus forms a part, includes additional
information not contained in this prospectus. You may read the
registration statement and the other reports we file with the SEC
at the SEC’s web site or at the SEC’s offices described below under
the heading “Where You Can Find Additional Information.”
In this
prospectus, unless otherwise stated or the context otherwise
requires, references to “Compugen,” “the
Company,” “we,” “us,” “our” and similar references
refer to Compugen Ltd. and our wholly owned subsidiary, Compugen
USA, Inc. except where the context otherwise requires or as
otherwise indicated.
You
should rely only on the information contained or incorporated by
reference in this prospectus or any “free writing prospectus” we
may authorize to be delivered to you. We have not authorized anyone
to provide you with different information. If anyone provides you
with different or inconsistent information, you should not rely on
it. You should assume that the information appearing in this
prospectus and the documents incorporated by reference herein and
therein are accurate only as of their respective dates. Our
business, financial condition, results of operations and prospects
may have changed since those dates.
This
prospectus shall not constitute an offer or solicitation by anyone
in any jurisdiction in which such offer or solicitation is not
authorized or in which the person making such offer or solicitation
is not qualified to do so or to anyone to whom it is unlawful to
make such offer or solicitation.
This
summary highlights only some of the information included or
incorporated by reference in this prospectus. You should carefully
read this prospectus together with the additional information about
us described in the sections entitled “Where You Can Find
Additional Information” and “Incorporation of Certain Information
by Reference” before purchasing our securities.
Compugen Ltd.
Overview
We are a
clinical-stage therapeutic discovery and development company
utilizing our broadly applicable, predictive computational
discovery platforms to identify novel drug targets and develop
therapeutics in the field of cancer immunotherapy. Our innovative
immuno-oncology pipeline consists of three clinical stage programs,
COM701, COM902 and BAY 1905254, targeting immune checkpoints we
discovered computationally. Our lead product candidate, COM701, a
first-in-class anti-PVRIG antibody, for the treatment of solid
tumors, is undergoing a Phase 1 clinical study and is under
clinical collaboration with Bristol-Myers Squibb. COM902, our
therapeutic antibody targeting TIGIT, is in a Phase 1 clinical
study and BAY 1905254, a first-in-class therapeutic antibody
targeting ILDR2, is licensed to Bayer under a research and
discovery collaboration and license agreement and is also in Phase
1 studies in patients with advanced solid tumors. Our therapeutic
pipeline further includes early-stage immuno-oncology programs
focused largely on myeloid targets. Our innovative immuno-oncology
pipeline, strategic collaborations and computational discovery
engine serve as the Company’s three key building blocks. Our
business model is to selectively enter into collaborations for our
novel targets and related drug product candidates at various stages
of research and development.
In 2018, we
entered into two agreements with leading pharmaceutical companies—a
clinical collaboration agreement with Bristol-Myers Squibb in
connection with our lead immuno-oncology program, COM701, and an
exclusive license agreement with AstraZeneca for the development of
bi-specific and multi-specific antibody products derived from one
of our immuno-oncology programs. The first pipeline agreement we
entered into was with Bayer in 2013 for the research, development,
and commercialization of immuno-oncology therapeutics against novel
targets identified by us. Under this agreement, we collaborate with
Bayer on BAY 1905254 targeting ILDR2. We are also engaged in
collaboration with Johns Hopkins School of Medicine, a leading
academic research center in the United States to advance research
and development efforts relating to our pipeline programs.
We are
headquartered in Holon, Israel. Our clinical development activities
operate from our U.S. site in South San Francisco,
California.
Corporate
Information
Our legal and
commercial name is Compugen Ltd. We were incorporated on February
10, 1993 as an Israeli corporation and operate under the Israel
Companies Law, 5759-1999, as amended, or the Companies Law. Our
principal offices are located at 26 Harokmim Street, Holon 5885849,
Israel, and our telephone number is +972-3-765-8585. Our web
address is www.cgen.com.
The information on our website is not incorporated by reference
into this prospectus, is not considered a part of this prospectus
and should not be relied upon with respect to any offering.
Compugen USA,
Inc., our wholly owned subsidiary, was incorporated in Delaware in
March 1997 and is qualified to do business in
California. This
subsidiary did not have any significant operations from 2008 to
March 2012.
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Securities offered
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749,104 ordinary shares issuable
upon the exercise of outstanding warrants.
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Description of warrants
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The warrants entitle holders to
purchase ordinary shares at an exercise price of $4.74 per share
for a period of five years from June 19, 2018, the date of
issuance.
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Ordinary shares to be outstanding immediately following this
offering
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83,443,313 shares assuming exercise
of the warrants in full based on our issued and outstanding share
capital as of June 30, 2020.
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Use of
Proceeds
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We intend to use the net proceeds
from this offering for pre-clinical and clinical development of our
product candidates and for other general corporate purposes. See
“Reasons for the Offer and Use of Proceeds” on page SA-8 of this
prospectus.
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Risk
Factors
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Investing in our securities
involves significant risks. See the information under the heading
“Risk Factors” beginning on page SA-3 of this prospectus and in the
documents incorporated by reference into this prospectus for a
discussion of factors you should carefully consider before deciding
to invest in our securities.
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Trading
Markets
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Our ordinary shares are traded on
the Nasdaq Global Market and on the TASE under the symbol
“CGEN.”
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The number of
outstanding ordinary shares set forth above excludes, as of June
30, 2020:
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5,481,735 ordinary shares issuable
upon the exercise of outstanding options to purchase ordinary
shares granted under our 2010 Share Incentive Plan, having a
weighted average exercise price of $4.33 per share;
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an aggregate 3,464,441 ordinary
shares issuable and reserved for future grants under our 2010 Share
Incentive Plan; and
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749,104 ordinary shares issuable
upon the exercise of warrants issued to certain institutional
investors in a registered direct offering completed in June 2018,
with an exercise price of $4.74 per share.
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Investing in our
securities may involve a high degree of risk. Before making an
investment decision, you should carefully consider the risks
described below as well as those discussed under “Risk Factors” in
our most recent Annual Report on Form 20-F, or any updates in our
Reports on Form 6-K, together with all of the other information
appearing in this prospectus or incorporated by reference into this
prospectus, in light of your particular investment objectives and
financial circumstances. The risks so described are not the only
risks facing our company. Additional risks not presently known to
us or that we currently deem immaterial may also impair our
business operations. Our business, financial condition and results
of operations could be materially adversely affected by any of
these risks. The trading price of our securities could decline due
to any of these risks, and you may lose all or part of your
investment.
Risks Related to
our Securities and this Offering
The COVID-19 pandemic may
adversely affect our business and operations
The recent outbreak of COVID-19 has
been declared by the World Health Organization to be a “pandemic,”
and has spread across the globe to many countries, including the
United States and Israel and is impacting worldwide economic
activity. The current COVID-19 pandemic may disrupt or prevent us,
our suppliers and other business partners from conducting business
activities as usual (including, without limitation, the
availability and pricing of materials, manufacturing and delivery
efforts, clinical trials and other aspects of our business) for a
period of time, the duration of which is uncertain. In addition,
we, our suppliers and other business partners may also experience
significant impairments of business activities due to operational
shutdowns or suspensions that may be requested or mandated by
national or local governmental authorities or self-imposed by us,
our suppliers or other business partners.
While it is not possible at this time to estimate the future impact
that COVID-19 could have on our business, suppliers or other
business partners, the continued spread of COVID-19, the measures
taken in Israel and the United States by federal and local
governments, actions taken to protect employees, and the impact of
the pandemic on various business activities could adversely affect
our business, results of operations and financial condition.
The capital markets have experienced significant volatility due to
the ongoing spread of COVID-19. As a result, the price of our
shares may be negatively impacted and affect our ability to raise
additional capital.
Our
management will have broad discretion in the use of the net
proceeds we receive in this offering and might not apply the
proceeds in ways that increase the value of your investment.
Our management
and board of directors will have broad discretion over the use of
our net proceeds from this offering, and you will be relying on
their judgment regarding the application of these proceeds, which
can be different from that contemplated at the time of this
offering. Our management and board of directors might not apply our
net proceeds in ways that ultimately increase the value of your
investment and we might not be able to yield a significant return,
if any, on any investment of these net proceeds. Our failure to
apply these funds effectively could have a material adverse effect
on our business, delay the development of our products and cause
the price of our ordinary shares to decline.
Investors in this offering will experience immediate and
substantial dilution.
The exercise
price of the warrants is higher than the net tangible book value
per share of our ordinary shares. Therefore, if you purchase
securities in this offering by exercising your warrants, you will
incur immediate and substantial dilution in the net tangible book
value per share from the exercise price. If the holders of
outstanding options to acquire ordinary shares exercise those
options at prices below the exercise price of the warrants, you
will incur further dilution. See the section
entitled “Dilution” herein for a more detailed discussion
of the dilution associated with this offering.
Because
we do not intend to declare cash dividends on our ordinary shares
in the foreseeable future, shareholders must rely on appreciation
of the value of our ordinary shares for any return on their
investment and may not receive any funds without selling their
ordinary shares.
We have never
declared or paid cash dividends on our ordinary shares and do not
anticipate declaring or paying any cash dividends in the
foreseeable future. As a result, we expect that only appreciation
of the price of our ordinary shares, if any, will provide a return
to investors in this offering for the foreseeable future. In
addition, because we do not pay cash dividends, if our shareholders
want to receive funds in respect of our ordinary shares, they must
sell their ordinary shares to do so.
There
is no public market for the warrants.
There is no
established public trading market for the warrants, and we do not
expect a market to develop. In addition, we have not and do not
intend to apply to list the warrants on any national securities
exchange or other nationally recognized trading system, including
Nasdaq. Without an active market, the liquidity of the warrants
will be limited.
The
warrants are speculative in nature. You may not be able to recover
your investment in the warrants, and the warrants may expire
worthless.
If our ordinary
share price does not increase to an amount sufficiently above the
applicable exercise price of the warrants during the period the
warrants are exercisable, you will be unable to recover any of your
investment in the warrants. There can be no assurance that the
market price of the ordinary shares will continue to be above the
exercise price of the warrants, and consequently, whether it will
be profitable for holders of the warrants to exercise the warrants
when they decide to do so.
Holders
of the warrants will have no rights as ordinary shareholders until
they acquire our ordinary shares.
Until you
acquire our ordinary shares upon exercise of the warrants, you will
have no rights with respect to our ordinary shares issuable upon
exercise of the warrants, including the right to vote or respond to
tender offers. Upon exercise of your warrants, you will be entitled
to exercise the rights of an ordinary shareholder only as to
matters for which the record date occurs after the exercise
date.
NOTE
REGARDING FORWARD-LOOKING STATEMENTS
This prospectus
contains forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended, or the Securities
Act, and Section 21E of the Securities Exchange Act of 1934, as
amended, or the Exchange Act, and the Private Securities Litigation
Reform Act of 1995. Also, documents that we incorporate by
reference into this prospectus, including documents that we
subsequently file with the SEC, will contain forward-looking
statements. Forward-looking statements are those that predict or
describe future events or trends and that do not relate solely to
historical matters. You can generally identify forward-looking
statements as statements containing the words
“may,” “will,” “could,” “should,” “expect,” “anticipate“ “objective,” “goal,” “intend,” “estimate,” “believe,” “project,” “plan,” “assume,”
“potential,” “likely,” “confident” or other similar expressions, or
negatives of those expressions, although not all forward-looking
statements contain these identifying words. All statements
contained or incorporated by reference in this prospectus regarding
our future strategy, future operations, projected financial
position, proposed products, anticipated collaborations, estimated
future revenues, projected costs, future prospects, the future of
our industry and results that might be obtained by pursuing
management’s current plans and objectives are forward-looking
statements.
You should not
place undue reliance on our forward-looking statements because the
matters they describe are subject to certain risks, uncertainties
and assumptions, including in many cases decisions or actions by
third parties that are difficult to predict. Our forward-looking
statements are based on the information currently available to us
and speak only as of the date on the cover of this prospectus or,
in the case of forward-looking statements incorporated by
reference, the date of the filing that includes the statement. Over
time, our actual results, performance or achievements may differ
from those expressed or implied by our forward-looking statements,
and such difference might be significant and materially adverse to
our security holders. We undertake no obligation to update publicly
any forward-looking statements, whether as a result of new
information, future events or otherwise.
We have
identified some of the important factors that could cause future
events to differ from our current expectations and they are
described in this prospectus under the caption “Risk Factors,” as
well as in our most recent Annual Report on Form 20-F, including
without limitation under the captions “Risk Factors” and “Operating
and Financial Review and Prospects,” and in other documents that we
may file with the SEC, all of which you should review carefully.
Please consider our forward-looking statements in light of those
risks as you read this prospectus.
OFFER
STATISTICS AND EXPECTED T
IMETABLE
We may offer and
sell from time to time pursuant to this prospectus an aggregate
749,104 ordinary shares that are issuable at an exercise price of
$4.74 per share for a maximum aggregate offering price of
$3,550,753.
The table below
sets forth our cash and cash equivalents, restricted cash,
short-term bank deposits, and capitalization as of June 30,
2020:
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•
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on an actual basis; and
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|
•
|
on an as adjusted basis to reflect
the sale and issuance of 749,104 ordinary shares issuable upon the
exercise of warrants, with an exercise price of $4.74 per
share.
|
The information
set forth in the following table should be read in conjunction
with, and is qualified in its entirety by, reference to our audited
and unaudited financial statements and the notes thereto
incorporated by reference into this prospectus.
|
|
|
As of
June 30, 2020
|
|
|
|
|
Actual
|
|
|
As
Adjusted
|
|
|
|
|
(in
thousands, except share and per share data)
|
|
|
Cash and cash equivalents,
restricted cash and short-term bank deposits
|
|
$
|
136,066
|
|
|
$
|
139,601
|
|
|
Shareholder’s equity:
|
|
|
|
|
|
|
|
|
|
Ordinary shares, NIS 0.01 nominal
value:200,000,000 shares authorized; 82,694,209 shares issued and
outstanding, actual; 83,443,313 shares issued and outstanding, as
adjusted
|
|
|
227
|
|
|
|
229
|
|
|
Additional paid-in capital
|
|
|
500,792
|
|
|
|
504,325
|
|
|
Accumulated deficit
|
|
|
(371,552
|
)
|
|
|
(371,552
|
)
|
|
Total shareholders’ equity
|
|
|
129,467
|
|
|
|
133,002
|
|
|
Total capitalization
|
|
$
|
129,467
|
|
|
$
|
133,002
|
|
The number of
outstanding ordinary shares set forth above excludes, as of June
30, 2020:
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•
|
5,481,735 ordinary shares issuable
upon the exercise of outstanding options to purchase ordinary
shares granted under our 2010 Share Incentive Plan, having a
weighted average exercise price of $4.33 per share; and
|
|
•
|
an aggregate 3,464,441 ordinary
shares issuable and reserved for future grants under our 2010 Share
Incentive Plan.
|
REASONS
FOR THE OFFER AND USE OF PROCEEDS
If the
warrants to purchase our ordinary shares to which this prospectus
relates are exercised in full, we will receive gross proceeds of
approximately $3.6 million, however we do not know when, if or the
extent to which such warrants may be exercised, and it is possible
that no warrants may be exercised, in which case we would not
receive any proceeds from this offering.
We currently
expect to use the net proceeds from this offering for
pre-clinical and clinical development of our product candidates and
for other general corporate purposes. We have not determined the
amount of net proceeds to be used specifically for the foregoing
purposes. This expected use of the net proceeds from this
offering represents our intentions based upon our current plans and
business conditions. The amounts and timing of our actual
expenditures may vary significantly depending on numerous factors,
including the progress of our development efforts, the status of
and results from clinical trials, as well as any collaborations
that we may enter into with third parties for our product
candidates, and any unforeseen cash needs. As a result, our
management will retain broad discretion over the allocation of the
net proceeds from this offering.
Pending use of
the net proceeds, we intend to invest any proceeds in a variety of
capital preservation instruments, including short-term and
long-term, investment-grade and interest-bearing instruments.
DESCRIPTION OF ORDINARY SHARES
Our authorized
share capital consists of 200,000,000 ordinary shares, nominal
(par) value NIS 0.01 per share. As of June 30, 2020, 82,694,209
ordinary shares were issued and outstanding. Subject to our amended
and restated articles of association, or our Articles, fully paid
ordinary shares of the Company confer on the holders thereof rights
to attend and to vote at general meetings of the shareholders.
Subject to the rights of holders of shares with limited or
preferred rights which may be issued in the future, the ordinary
shares of the Company confer upon the holders thereof equal rights
to vote, to receive dividends and to participate in the
distribution of the assets of the Company upon its winding-up, in
proportion to the amount paid up or credited as paid up on account
of the nominal value of the shares held by them respectively and in
respect of which such dividends are being paid or such distribution
is being made, without regard to any premium paid in excess of the
nominal value, if any. All outstanding ordinary shares are validly
issued and fully paid.
Registration
Number and Purpose of the Company
Our registration
number with the Israeli Registrar of Companies is 51-177-963-9. Our
purpose as set forth in our Articles is to engage in any lawful act
or activity for which companies may be organized under the
Companies Law.
Rights Attached
to Our Shares
Subject to our
Articles, fully paid ordinary shares confer on the holders thereof
rights to attend and to vote at general meetings of the
shareholders. Subject to the rights of holders of shares with
limited or preferred rights which may be issued in the future, our
ordinary shares confer upon the holders thereof equal rights to
receive dividends and to participate in the distribution of our
assets upon our winding-up, in proportion to the amount paid up or
credited as paid up on account of the nominal value of the shares
held by them respectively and in respect of which such dividends
are being paid or such distribution is being made, without regard
to any premium paid in excess of the nominal value, if any. No
preferred shares are currently authorized. All outstanding ordinary
shares are validly issued and fully paid.
Voting
Rights
Subject to the
provisions of our Articles, holders of ordinary shares have one
vote for each ordinary share held by such shareholder of record, on
all matters submitted to a vote of shareholders. Shareholders may
vote in person, by proxy or by proxy card. Alternatively,
shareholders who hold shares through members of the Tel Aviv Stock
Exchange may vote electronically via the electronic voting system
of the Israel Securities Authority, or Electronic Vote. These
voting rights may be affected by the grant of any special voting
rights to the holders of a class of shares with preferential rights
that may be authorized in the future. As our ordinary shares do not
have cumulative voting rights in the election of directors, the
holders of the majority of the shares present and voting at a
shareholders meeting have the power to elect all of our
directors.
Transfer of Shares
Our ordinary
shares which have been fully paid-up are transferable by submission
of a proper instrument of transfer together with the certificate of
the shares to be transferred and such other evidence of title, as
our Board of Directors may require, unless such transfer is
prohibited by another instrument or by applicable securities
laws.
Dividends
Under the
Companies Law, dividends may be distributed only out of profits
available for dividends as determined by the Companies Law,
provided that there is no reasonable concern that the distribution
will prevent the Company from being able to meet its existing and
anticipated obligations when they become due. If the company does
not meet the profit requirement, a court may nevertheless allow the
company to distribute a dividend, as long as the court is convinced
that there is no reasonable concern that such distribution will
prevent the company from being able to meet its existing and
anticipated obligations when they become due. Pursuant to our
Articles, no dividend shall be paid other than out of the profits
of the Company. Generally, under the Companies Law, the decision to
distribute dividends and the amount to be distributed is made by a
company’s board of directors.
Our Articles
provide that our Board of Directors, may, subject to the Companies
Law, from time to time, declare and cause the Company to pay such
dividends as may appear to the Board of Directors to be justified
by the profits of our Company. Subject to the rights of the holders
of shares with preferential, special or deferred rights that may be
authorized in the future, our profits which shall be declared as
dividends shall be distributed according to the proportion of the
nominal (par) value paid up or credited as paid up on account of
the shares held at the date so appointed by the Company and in
respect of which such dividend is being paid, without regard to the
premium paid in excess of the nominal (par) value, if any. The
declaration of dividends does not require shareholders’
approval.
To date, we have
not declared or distributed any dividend and we do not intend to
pay cash dividends on our ordinary shares in the foreseeable
future.
Liquidation Rights
In the event of
our winding up on liquidation or dissolution, subject to applicable
law and after satisfaction of liabilities to creditors, our assets
available for distribution among the shareholders shall be
distributed to the holders of ordinary shares in proportion to the
amount paid up or credited as paid up on account of the nominal
value of the shares held by them respectively and in respect of
which such distribution is being made, without regard to any
premium paid in excess of the nominal value, if any. This
liquidation right may be affected by the grant of limited or
preferential rights as to liquidation to the holders of a class of
shares that may be authorized in the future.
Redemption Provisions
We may, subject
to applicable law and to our Articles, issue redeemable shares and
redeem the same upon such terms and conditions as determined by our
Board of Directors.
Limitation of Liability
Under our
Articles, the liability of each shareholder for the Company’s
obligations is limited to the unpaid sum, if any, owing to the
Company in consideration for the issuance of the shares held by
such shareholder.
Modification of Class Rights
Our amended and
restated Memorandum of Association, or Memorandum, provides that we
may amend the Memorandum in order to increase, consolidate or
divide or otherwise amend our share capital by a simple majority of
the voting power present at a shareholders meeting as currently
provided in our Articles or by such other majority as shall be set
forth in our Articles from time to time.
Pursuant to our
Articles, if at any time our share capital is divided into
different classes of shares, the rights attached to any class,
unless otherwise provided by our Articles, may be modified or
abrogated by the Company, subject to the consent in writing of, or
sanction of a resolution passed by, the holders of a majority of
the issued shares of such class at a separate general meeting of
the holders of the shares of such class.
Limitations on
the Rights to Own Securities
Our Articles and
Israeli law do not restrict the ownership or voting of ordinary
shares by non-residents or persons who are not citizens of Israel,
though such ownership is prohibited under applicable law with
respect to subjects of nations which are in a state of war with
Israel.
Changes in
Authorized Share Capital
Our Articles
enable us, among others, to increase or reduce our authorized share
capital. Any such changes are subject to the provisions of the
Companies Law and our Articles and must be approved by a resolution
duly passed by a simple majority of our shareholders at a general
meeting by voting on such change in capital.
Shareholders’
Meetings and Resolutions
Our Articles
provide that our annual general meeting shall be held once in every
calendar year at such time (within a period of not more than
fifteen months after the last preceding annual general meeting),
and place determined by our Board of Directors. Our Board of
Directors may, in its discretion, convene additional special
shareholders meetings and, pursuant to the Companies Law, must
convene a meeting upon the demand of: (a) two directors or one
quarter of the directors in office; or (b) the holder or holders of
(i) 5% or more of our issued share capital and one percent or more
of our voting rights; or (ii) 5% or more of our voting rights. All
demands for shareholders meetings must set forth the items to be
considered at that meeting.
The chairman of
the Board of Directors, or any other director or office holder of
the Company which may be designated for this purpose by the Board
of Directors, shall preside as chairman at each of our general
meetings. If there is no such chairman, or if the appointed
chairman is unwilling to take the chair, or if he shall have
indicated in advance that he will not be attending, or if at any
meeting such chairman is not present within thirty (30) minutes
after the time fixed for holding the meeting, then those present at
the meeting shall choose someone present to be chairman of the
meeting. The office of chairman shall not, by itself, entitle the
holder thereof to vote at any general meeting nor shall it entitle
a second or casting vote.
According to
regulations promulgated pursuant to the Companies Law and governing
the terms of notice and publication of shareholder meetings of
public companies, or the General Meeting Regulations, holder(s) of
one percent or more of the Company’s voting rights may propose any
matter appropriate for deliberation at a shareholder meeting to be
included on the agenda of a shareholder meeting, generally by
submitting a proposal within seven days of publicizing the
convening of a shareholder meeting, or within fourteen days, if the
Company publishes at least 21 days prior to publicizing the proxy
materials for a shareholder meeting, a preliminary notice stating
its intention to convene such meeting, the agenda thereof,
shareholder’s right to propose a matter to be included on the
agenda of such meeting and company’s right not to examine such
proposals received upon termination of 14 day period from the
publication of such notice. Any such proposal must further comply
with the information requirements under applicable law and our
Articles. The agenda for a shareholder meeting is determined by the
Board of Directors and must include matters in respect of which the
convening of a shareholder meeting was demanded and any matter
requested to be included by holder(s) of one percent of the
Company’s voting rights, as detailed above.
Pursuant to the
Companies Law and the General Meeting Regulations shareholder
meetings generally require prior notice of not less than 21 days,
and not less than 35 days in certain cases. Pursuant to our
Articles, we are not required to deliver or serve notice of a
general meeting or of any adjournments thereof to any shareholder.
However, subject to applicable law and stock exchange rules and
regulations, we will publicize the convening of a general meeting
in any manner reasonably determined by us, and any such publication
shall be deemed duly made, given and delivered to all shareholders
on the date on which it is first made, posted, filed or published
in the manner so determined by us in our sole discretion.
The function of
the annual general meeting is to elect directors, receive and
consider the profit and loss account, the balance sheet and the
ordinary reports and accounts of the directors and auditors,
appoint auditors and transact any other business which under our
Articles or applicable law may be transacted by the shareholders of
the Company in a general meeting.
Pursuant to our
Articles, the quorum required for a meeting of shareholders
consists of at least two shareholders, present in person, by proxy,
by proxy card or by Electronic Vote and holding shares conferring
in the aggregate twenty-five percent (25%) or more of the voting
power of the Company. If within half an hour from the time
appointed for the meeting a quorum is not present, the meeting
shall stand adjourned to the same day in the following week at the
same time and place or to such other later day, time and place as
the Board of Directors may determine and specify in the publication
with respect to the Meeting. At the adjourned meeting, any number
of participants will constitute a quorum present, in person, by
proxy, by proxy card or by Electronic Vote; provided, however, that
special general meeting which was convened by the Board upon the
demand of shareholders or directors then in office, as detailed
above, or directly by such shareholders or directors, in accordance
the terms of the Companies Law, shall be cancelled.
Generally, under
the Companies Law and our Articles, shareholder resolutions are
deemed adopted if approved by the holders of a simple majority of
the voting rights represented at the meeting, in person, by proxy,
by proxy card or by Electronic Vote, and voting on the matter,
unless a different majority is required by law or pursuant to our
Articles such as a resolution for the voluntary winding up of our
Company which requires the approval of holders of 75% of the voting
power presented and voting at the meeting, or resolutions
concerting certain related party transactions as set forth in
Sections 267 and 270-275 of the Companies Law.
Change of
Control
Merger
Under the
Companies Law, a merger is generally required to be approved by the
shareholders and board of directors of each of the merging
companies. If the share capital of the company that will not be the
surviving company is divided into different classes of shares, the
approval of each class is also required, unless determined
otherwise by the court. Similarly, unless an Israeli court
determines otherwise, a merger will not be approved if it is
objected to by shareholders holding a majority of the voting rights
participating and voting at the meeting (abstentions are
disregarded), after excluding the shares held by the other party to
the merger, by any person who holds 25% or more of the other party
to the merger or by anyone on their behalf, including by the
relatives of, or corporations controlled by, these persons. In
approving a merger, the board of directors of both merging
companies must determine that there is no reasonable concern that,
as a result of the merger, the surviving company will not be able
to satisfy its obligations to its creditors. Similarly, upon the
request of a creditor of either party to the proposed merger, an
Israeli court may prevent or delay the merger if it concludes that
there exists a reasonable concern that, as a result of the merger,
the surviving company will not be able to satisfy the obligations
of the merging parties. A court may also issue other instructions
for the protection of the creditors’ rights in connection with a
merger. Further, a merger may not be completed unless at least (i)
50 days have passed from the time that the requisite proposals for
the approval of the merger were filed with the Israeli registrar of
companies; and (ii) 30 days have passed since the merger was
approved by the shareholders of each party.
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 rule does not
apply if there is already another holder of 25% or more 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. These requirements do not apply if the acquisition (i)
occurs in the context of a private placement by the company that
received shareholder approval for the purpose of allowing the
purchaser to hold more than 25% of 45% of the voting rights in the
company, as the case may be, (ii) was from a shareholder holding
25% or more of the voting rights in the company and resulted in the
acquirer becoming a holder of 25% or more of the voting rights in
the company, or (iii) was from a holder of more than 45% of the
voting rights in the company and resulted in the acquirer becoming
a holder of more than 45% of the voting rights in the company. 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 controlling shareholders, holders of 25% or
more of the voting rights in the company and any person having a
personal interest in the acceptance of the tender offer).
In the event
that a special tender offer is made, a company’s board of directors
is required to express its opinion on the advisability of the
offer, or shall abstain from expressing any opinion if it is unable
to do so, provided that it gives the reasons for its abstention. An
office holder in a target company who, in his or her capacity as an
office holder, performs an action the purpose of which is to cause
the failure of an existing or foreseeable special tender offer or
is to impair the chances of its acceptance, is liable to the
potential purchaser and shareholders for damages, unless such
office holder acted in good faith and had reasonable grounds to
believe he or she was acting for the benefit of the company.
However, office holders of the target company may negotiate with
the potential purchaser in order to improve the terms of the
special tender offer, and may further negotiate with third parties
in order to obtain a competing offer. Shares purchased in
contradiction to the tender offer rules under the Companies Law
will have no rights and will become dormant shares.
If a special
tender offer is accepted, then shareholders who did not respond to
or that had objected the offer may accept the offer within four
days of the last day set for the acceptance of the offer. In the
event that 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.
Full
Tender Offer
Under the
Companies Law, a person may not acquire shares in a public company
if, after the acquisition, the acquirer will hold more than 90% of
the shares or more than 90% of any class of shares of that company,
unless a tender offer is made to purchase all of the shares or all
of the shares of the particular class. The Companies Law also
generally provides that as long as a shareholder in a public
company holds more than 90% of the company’s shares or of a class
of shares, that shareholder shall be precluded from purchasing any
additional shares. In order for all of the shares that the
purchaser offered to purchase be transferred to him by operation of
law, one of the following needs to have occurred: (i) the
shareholders who declined or do not respond to the tender offer
hold less than 5% of the company’s outstanding share capital or of
the relevant class of shares and the majority of offerees who do
not have a personal interest in accepting the tender offer accepted
the offer, or (ii) the shareholders who declined or do not respond
to the tender offer hold less than 2% of the company’s outstanding
share capital or of the relevant class of shares.
A shareholder
that had his or her shares so transferred, whether he or she
accepted the tender offer or not, has the right, within six months
from the date of acceptance of the tender offer, to petition the
court to determine that the tender offer was for less than fair
value and that the fair value should be paid as determined by the
court. However, the purchaser may provide in its offer that
shareholders who accept the tender offer will not be entitled to
such rights.
If the
conditions set forth above are not met, the purchaser may not
acquire additional shares of the company from shareholders who
accepted the tender offer to the extent that following such
acquisition, the purchaser would own more than 90% of the company’s
issued and outstanding share capital. The above restrictions apply,
in addition to the acquisition of shares, to the acquisition of
voting power.
Transfer Agent
and Registrar
The transfer
agent and registrar for our ordinary shares is American Stock
Transfer & Trust Company, LLC.
The Nasdaq
Global Market and the Tel Aviv Stock Exchange
Our ordinary
shares are listed on The Nasdaq Global Market and the Tel Aviv
Stock Exchange under the symbol “CGEN.”
Warrants
As of June 30,
2020, we had warrants outstanding to purchase an aggregate 749,104
ordinary shares. See “Description of Warrants—Outstanding
Warrants.”
Share
History
The following is
a summary of the history of our share capital for the last three
years.
Ordinary Share Issuances
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•
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Share Options. Since January 1, 2017
and through June 30, 2020, we have issued a total of 4,256,307
ordinary shares upon the exercise of share options.
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•
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ATM Sales Agreement. In May 2018, we
entered into a Controlled Equity OfferingSM
Sales Agreement, or the ATM Sales Agreement, with Cantor Fitzgerald
& Co., or Cantor, as sales agent, pursuant to which we may
offer and sell, from time to time through Cantor, our ordinary
shares having an aggregate offering price of up to $25 million.
Under the ATM Sales Agreement, Cantor may sell Shares by any method
permitted by law and deemed to be an “at the market offering” as
defined in Rule 415(a)(4) promulgated under the Securities Act,
including sales made directly on the Nasdaq Global Market, or on
any other existing trading market for the ordinary shares. As of
December 31, 2019, we sold 7,245,268 shares through the ATM Sales
Agreement for an aggregate purchase price of approximately $23.7
million. The program was terminated in 2019.
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•
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Registered Direct Offering. In June
2018, we entered into a definitive securities purchase agreement
with certain institutional investors and a placement agency
agreement with JMP Securities LLC, in connection with a registered
direct offering which resulted in the issuance of 5,316,457 of our
ordinary shares at a purchase price of $3.95 per share. In
connection with the issuance of the ordinary shares, we also issued
warrants to purchase up to 4,253,165 additional ordinary shares.
The warrants have an exercise price of $4.74 per share and have a
term of five years from the date of issuance. Gross proceeds from
this offering were approximately $21 million, before deducting the
underwriting discounts and commissions and estimated offering
expenses payable by us. As of June 30, 2020, warrants to purchase
up to 749,104 ordinary shares remained outstanding (warrants to
purchased 3,504,061 ordinary shares were exercised as of such
date).
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•
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Bristol-Myers
Squibb Securities Purchase Agreement. In October 2018, we and Bristol-Myers
Squibb entered into a Securities Purchase Agreement pursuant to
which Bristol-Myers Squibb purchased 2,424,243 ordinary shares
at a purchase price of $4.95 per share, which represented a 33%
premium over the average closing price on the last 20 Nasdaq
trading days. Gross proceeds from this private placement were
approximately $12 million.
|
|
|
•
|
Public
Offering. In March
2020, we entered into an underwriting agreement with SVB Leerink
LLC and Stifel, Nicolaus & Company, Incorporated, as
representatives of several underwriters relating to the issuance
and sale in a public offering of 8,333,334 of our ordinary shares
at a price to the public of $9.00 per share (and a price of $8.46
per share to the underwriters). In addition, we granted the
underwriters a 30-day option to purchase additional ordinary shares
at the price set forth above. On April 14, 2020, we issued and
sold, pursuant to that underwriting agreement an additional 483,005
ordinary shares pursuant to the underwriters’ option specified
above. We sold a total of 8,816,339 ordinary shares in the
offering with gross proceeds of approximately $79.3
million.
|
Authorized Share Capital
Our authorized
share capital is equal to NIS2,000,000 divided into 200,000,000
ordinary shares nominal (par) value NIS 0.01 per share.
The following is
a brief summary of certain terms and conditions of the warrants and
is subject in all respects to the provisions contained in the
warrants. You should review a copy of the form of ordinary share
purchase warrant for a complete description of the terms and
conditions applicable to the warrants.
Term
The warrants are
exercisable during the period beginning six months from the date of
issuance and ending at 5:00 P.M. on June 19, 2023.
Exercise Price
The exercise
price of the warrants is $4.74 per whole ordinary share. The
exercise price is subject to appropriate adjustment in the event of
certain share splits, dividends, recapitalizations or similar
events affecting our ordinary shares.
Exercisability
Holders may
exercise the warrants beginning six months from June 19, 2018, the
date of issuance, and at any time during the applicable term of the
warrant. The warrants will be exercisable, at the option of each
holder, in whole or in part, by delivering to us a written notice
and, within one trading day of delivering such
notice, payment shall be made in full for the number of
ordinary shares purchased upon such exercise. If there is no
effective registration statement registering the issuance and sale
of the ordinary shares underlying the warrants, the holder may
exercise the warrant through a cashless exercise, in which case the
holder would receive upon such exercise the net number of ordinary
shares determined according to the formula set forth in the
warrant.
Exercise Limitation
Holders shall
not have the right to exercise the warrant, to the extent that
after giving effect to such exercise, such holder, together with
such holder’s affiliates and any other persons acting as a group
together with the holder or any of the holder’s affiliates, would
beneficially own in excess of 4.99% of the ordinary shares
outstanding immediately after giving effect to such exercise which
limitation may be increased to 9.99% by the holder.
No
Fractional Shares
No fractional
ordinary shares will be issued upon exercise of the warrants. If
there is a fractional share issuable upon exercise, we will, at our
election, either pay a cash adjustment or it will be rounded up to
the nearest whole share.
Transferability
Subject to
applicable laws and the restriction on transfer set forth in the
warrant, the warrant may be transferred at the option of the holder
upon surrender of the warrant to us together with the appropriate
instruments of transfer.
Authorized Shares
During the
period the warrants are outstanding, we will reserve from our
authorized and unissued ordinary shares a sufficient number of
shares to provide for the issuance of ordinary shares underlying
the warrants upon the exercise of the warrants.
Exchange Listing
We have not and
do not plan on applying to list the warrants on Nasdaq, the TASE,
any other national securities exchange or any other nationally
recognized trading system.
Purchase Rights
Subject to
certain limitations, if at any time during the period the warrants
are outstanding we grant, issue or sell certain of our securities
pro rata to the record holders of our ordinary shares, the warrant
holders shall be entitled to participate upon the same terms in an
amount up to the number of ordinary shares acquirable upon complete
exercise of the warrant.
Pro
Rata Distributions
Subject to
certain limitations, if at any time during the period the warrants
are outstanding we declare or make any dividend or other
distribution of assets to our ordinary shareholders, the warrant
holders shall be entitled to distributions upon the same terms in
an amount up to the number of ordinary shares acquirable upon
complete exercise of the warrant.
Fundamental Transactions
In the event of
any fundamental transaction, as defined in the warrants and
generally including any consolidation or merger with or into
another entity, the sale of all or substantially all of our assets,
tender offer or exchange offer, reorganization or recapitalization
through which another entity acquires us, or reclassification of
our ordinary shares, then the successor entity in such transaction
will assume in writing all of our obligations under the warrant
pursuant to written agreements, including an adjusted exercise
price equal to the value for the ordinary shares reflected by the
terms of such fundamental transaction, and exercisable for a
corresponding number of shares equivalent to the ordinary shares
acquirable and receivable upon exercise of the warrant prior to
such fundamental transaction.
Failure
to Timely Deliver Securities
If we
fail for any reason to deliver to a holder the number of shares of
ordinary shares due to the holder pursuant to the holder’s written
notice on or before the second trading day following receipt of
such notice, we will pay to the holder, in cash, as liquidated
damages and not as a penalty, for each $1,000 of ordinary shares
subject to such exercise, $10 per trading day (increasing to $20
per trading day on the fifth trading day after such liquidated
damages begin to accrue) for each trading day until such ordinary
shares are delivered or the holder rescinds such exercise.
Right
as a Shareholder
Except as
otherwise provided in the warrants or by virtue of such holder’s
ownership of our ordinary shares, the holders of the warrants do
not have the rights or privileges of holders of our ordinary
shares, including any voting rights, until they exercise their
warrants.
Waivers
and Amendments
Any term of the
warrants issued in the offering may be amended or waived with our
written consent and the written consent of the holder.
If you purchase
ordinary shares in this offering by exercising your warrants, your
ownership interest will be immediately diluted to the extent of the
difference between the exercise price and the as adjusted net
tangible book value per ordinary share after this offering. Net
tangible book value per ordinary share is calculated by subtracting
our total liabilities from our total tangible assets, which is
total assets, and dividing this amount by the number of ordinary
shares outstanding. Our net tangible book value as of June 30, 2020
was $129.5 million, or $1.57 per ordinary share.
After giving
effect to the sale of 749,104 ordinary shares in this offering
issuable upon the exercise of warrants at an exercise price of
$4.74 per share, our as adjusted net tangible book value as of June
30, 2020 would have been approximately $133.0 million, or $1.59 per
ordinary share. This amount represents an immediate increase in the
net tangible book value of $0.02 per ordinary share to our existing
shareholders and an immediate and substantial dilution in net
tangible book value of $3.15 per ordinary share to holders
purchasing ordinary shares by exercising warrants in this offering.
The following table illustrates this per share dilution:
|
Exercise price per share
|
|
|
|
|
$
|
4.74
|
|
|
Net
tangible book value per share as of June 30, 2020
|
|
$
|
1.57
|
|
|
|
|
|
|
Increase in net tangible book value per share attributable to the
offering
|
|
$
|
0.02
|
|
|
|
|
|
|
As adjusted net tangible book value
per share after this offering
|
|
|
|
|
|
$
|
1.59
|
|
|
Net dilution per share to new
investors in this offering
|
|
|
|
|
|
$
|
3.15
|
|
The information
above is based on 82,694,209 ordinary shares outstanding as of June
30, 2020, and does not include the following as of June 30,
2020:
|
•
|
5,481,735 ordinary shares issuable
upon the exercise of outstanding options to purchase ordinary
shares granted under our 2010 Share Incentive Plan, having a
weighted average exercise price of $4.33 per share;
|
|
•
|
an aggregate 3,464,441 ordinary
shares issuable and reserved for future grants under our 2010 Share
Incentive Plan; and
|
|
•
|
749,104 ordinary shares issuable
upon the exercise of warrants issued to certain institutional
investors in a registered direct offering completed in June 2018,
with an exercise price of $4.74 per share.
|
To the extent
that outstanding options outstanding as of June 30, 2020 have been
or may be exercised, investors purchasing our securities in this
offering may experience further dilution.
In accordance
with the terms of the warrants to which this prospectus relates, we
will issue ordinary shares underlying the warrants to the holders
thereof upon due exercise of such warrants. No underwriter or other
person has been engaged by us to facilitate the sale of our
ordinary shares we are offering in this offering. We will receive
all of the proceeds from any cash exercise of the warrants. All
costs associated with this registration were borne by us.
Each
warrant has an exercise price of $4.74 per share, is exercisable in
full and will expire on the fifth anniversary the original issuance
date of June 19, 2018. The exercise price is subject to appropriate
adjustment in the event of certain share splits, dividends,
recapitalizations or similar events affecting our ordinary
shares.
The warrants are
exercisable, at the option of each holder, in whole or in part, by
delivering to us a written notice and,
within one trading day of delivering such
notice, payment shall be made in full for the number of
ordinary shares purchased upon such exercise. If there is no
effective registration statement registering the issuance and sale
of the ordinary shares underlying the warrants, the holder may
exercise the warrant through a cashless exercise, in which case the
holder would receive upon such exercise the net number of ordinary
shares determined according to the formula set forth in the
warrant.
Holders shall
not have the right to exercise the warrant, to the extent that
after giving effect to such exercise, such holder, together with
such holder’s affiliates and any other persons acting as a group
together with the holder or any of the holder’s affiliates, would
beneficially own in excess of 4.99% of the ordinary shares
outstanding immediately after giving effect to such exercise which
limitation may be increased to 9.99% by the holder.
No fractional
ordinary shares will be issued upon exercise of the warrants. If
there is a fractional share issuable upon exercise, we will, at our
election, either pay a cash adjustment or it will be rounded up to
the nearest whole share.
Certain matters of Israeli law with respect to the legality of the
issuance of the ordinary shares offered by this prospectus will be
passed upon for us by Shibolet & Co., Law Firm, Tel Aviv,
Israel. Certain matters of U.S. law will be passed upon for us
by Cooley LLP, New York, New York.
The
consolidated financial statements of Compugen Ltd. appearing in the
Annual Report on Form 20-F for the year ended December 31, 2019 and
the effectiveness of Compugen Ltd. internal control over financial
reporting as of December 31, 2019, as filed with the SEC on
February 24, 2020, have been audited by Kost Forer Gabbay &
Kasierer (a Member of Ernst & Young Global), independent
registered public accounting firm, as set forth in their report
thereon, included therein, and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by
reference in reliance upon such reports pertaining to such
consolidated financial statements and the effectiveness of Compugen
Ltd. internal control over financial reporting as of the respective
dates, given on the authority of such firm as experts in accounting
and auditing. The address of Kost Forer Gabbay & Kasierer is
144 Menachem Begin Road, Building A, Tel-Aviv, Israel
6492102.
The following
are the estimated expenses related to the filing of the
registration statement of which this prospectus forms a part, all
of which will be paid by us. In addition, we anticipate incurring
additional expenses in the future in connection with the offering
of our securities pursuant to this prospectus. Any such additional
expenses will be disclosed in a prospectus supplement.
|
Printing and
engraving expenses*
|
|
$
|
1,000
|
|
|
Legal fees and
expenses*
|
|
|
10,000
|
|
|
Accounting
fees and expenses*
|
|
|
5,000
|
|
|
Total*
|
|
$
|
16,000
|
|
__________
*Estimated
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows
us to “incorporate by reference” the information we file with it,
which means that we can disclose important information to you by
referring you to those documents. The information incorporated by
reference is considered to be part of this prospectus and
information we file later with the SEC will automatically update
and supersede this information. The documents we are incorporating
by reference as of their respective dates of filing are:
|
|
•
|
Annual Report on Form 20-F for the
year ended December 31, 2019, filed on February 24, 2020 and as
amended on February 27, 2020 (File No. 000-30902);
|
|
|
•
|
Reports on Form 6-K filed on
January 9, 2020, February 20, 2020, February 20, 2020, March 9,
2020, March 11, 2020, March 12, 2020, March 13, 2020, March 17,
2020, April 6, 2020, April 15, 2020, April 27, 2020, May 6, 2020,
May 27, 2020, June 1, 2020 and July 30, 2020 (File Nos. 000-30902);
and
|
|
|
•
|
the description of our ordinary
shares contained in our Form 8-A filed on August 2, 2000 (File No.
000-30902), as updated and amended by the disclosure contained
under “Description of Ordinary Shares” in this registration
statement on Form F-3.
|
All subsequent
annual reports on Form 20-F, Form 40-F or Form 10-K filed by us,
all subsequent reports on Forms 10-Q and 8-K filed by us, and all
subsequent reports on Form 6-K filed by us that are identified by
us as being incorporated by reference shall be deemed to be
incorporated by reference into this prospectus and deemed to be a
part hereof after the date of this prospectus but before the
termination of the offering by this prospectus.
Any statement
contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for all purposes to the extent
that a statement contained in this prospectus, or in any other
subsequently filed document which is also incorporated or deemed to
be incorporated by reference, modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this prospectus.
You may request,
orally or in writing, a copy of these documents, which will be
provided to you at no cost, by contacting:
Ari Krashin
Chief Financial Officer
Compugen Ltd.
26 Harokmim Street
Holon 5885849, Israel
Phone: +972-3-765-8585
Fax: +972-3-765-8555
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
This prospectus
is part of a registration statement on Form F-3 that we filed with
the SEC relating to the securities offered by this prospectus,
which includes additional information. You should refer to the
registration statement and its exhibits for additional information.
Whenever we make reference in this prospectus to any of our
contracts, agreements or other documents, the references are not
necessarily complete, and you should refer to the exhibits attached
to the registration statement for copies of the actual contract,
agreements or other document.
We are subject
to the informational requirements of the Exchange Act applicable to
foreign private issuers. We, as a “foreign private issuer,” are
exempt from the rules under the Exchange Act prescribing certain
disclosure and procedural requirements for proxy solicitations, and
our office holders, directors and principal shareholders are exempt
from the reporting and “short-swing” profit recovery provisions
contained in Section 16 of the Exchange Act, with respect to their
purchases and sales of shares. In addition, we are not required 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. So long as we are
a foreign private issuer, we anticipate filing with the SEC, within
three months after the end of each fiscal year, an Annual Report on
Form 20-F containing financial statements audited by an independent
accounting firm. We also furnish or file with the SEC Reports of
Foreign Private Issuer on Form 6-K and other information with the
SEC as required by the Exchange Act. You can review our SEC filings
and the registration statement by accessing the SEC’s internet site
at http://www.sec.gov.
We also maintain
a website at www.cgen.com,
through which you can access certain SEC filings. The information
set forth on our website is not part of this prospectus.
ENFO
RCEABILITY OF
CIVIL LIABILITIES
We are
incorporated under the laws of the State of Israel. Service of
process upon us and upon our directors and office holders, almost
all of whom reside outside the United States, may be difficult to
obtain within the United States. Furthermore, because the majority
of our assets and investments, and almost all of our directors and
office holders are located outside the United States, any judgment
obtained in the United States against us or any of them may not be
collectible within the United States.
Additionally, it
may be difficult to assert U.S. securities law claims in original
actions instituted in Israel. Israeli courts may refuse to hear a
claim based on an alleged violation of U.S. securities laws because
Israel is not the most appropriate forum to bring such a claim. In
addition, even if an Israeli court agrees to hear such a claim, it
may determine that Israeli law and not U.S. law is applicable to
the claim. If U.S. law is found to be applicable, the content of
applicable U.S. law must be proved as a fact which can be a
time-consuming and costly process. Certain matters of procedure
will also be governed by Israeli law. There is little binding case
law in Israel that addresses the matters described above.
Subject to
specified time limitations and legal procedures, Israeli courts may
enforce a United States judgment in a civil matter which, subject
to certain exceptions, is non-appealable, including judgments based
upon the civil liability provisions of the Securities Act and the
Exchange Act and including a monetary or compensatory judgment in a
non-civil matter, provided that among other things:
|
|
•
|
the judgments are obtained after
due process before a court of competent jurisdiction, according to
the laws of the state in which the judgment is given and the rules
of private international law currently prevailing in Israel;
|
|
|
•
|
the prevailing law of the foreign
state in which the judgments were rendered allows for the
enforcement of judgments of Israeli courts;
|
|
|
•
|
adequate service of process has
been effected and the defendant has had a reasonable opportunity to
be heard and to present his or her evidence;
|
|
|
•
|
the judgments are not contrary to
public policy of Israel, and the enforcement of the civil
liabilities set forth in the judgment is not likely to impair the
security or sovereignty of Israel;
|
|
|
•
|
the judgments were not obtained by
fraud and do not conflict with any other valid judgments in the
same matter between the same parties;
|
|
|
•
|
an action between the same parties
in the same matter is not pending in any Israeli court at the time
the lawsuit is instituted in the foreign court;
|
|
|
•
|
the judgment is not subject to any
further appeal procedures; and
|
|
|
•
|
the judgment is enforceable
according to the laws of Israel and according to the law of the
foreign state in which the relief was granted.
|
Generally, an
Israeli court will not enforce a foreign judgment if the motion for
enforcement was filed more than five years after the date of its
award in the United States, unless Israel and the United States
have agreed otherwise on a different period, or if an Israeli court
finds exceptional reasons justifying the delay.
If a foreign
judgment is enforced by an Israeli court, it generally will be
payable in Israeli currency, which can then be converted into
non-Israeli currency and transferred out of Israel. The usual
practice in an action before an Israeli court to recover an amount
in a non-Israeli currency is for the Israeli court to issue a
judgment for the equivalent amount in Israeli currency at the rate
of exchange in force on the date of the judgment, but the judgment
debtor may make payment in foreign currency. Pending collection,
the amount of the judgment of an Israeli court stated in Israeli
currency ordinarily will be linked to the Israeli consumer price
index plus interest at the annual statutory rate set by Israeli
regulations prevailing at the time. Judgment creditors must bear
the risk of unfavorable exchange rates.
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as
indemnification for liabilities arising under the Securities Act
may be permitted to our directors, office holders and controlling
persons, we have been informed that in the opinion of the SEC such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
749,104 Ordinary Shares Issuable Upon
Exercise of Outstanding Warrants
PROSPECTUS
, 2020
PART
II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Office
Holders
Our Office Holders’ Insurance. Our
Articles provide that, subject to the provisions of the Companies
Law, we may enter into contracts to insure the liabilities of our
Office Holders for any liabilities or expenses incurred by or
imposed upon them as a result of any act (or omission) carried out
by them as our Office Holders, including with respect to any of the
following:
|
•
|
a breach of
duty of care to us or to another person;
|
|
•
|
a breach of
duty of loyalty to us, provided that the Office Holder acted in
good faith and had reasonable grounds to assume that such act would
not prejudice our interests;
|
|
•
|
monetary
liabilities or obligations imposed upon him or her in favor of
another person;
|
|
•
|
A payment
which the Office Holder is obligated to make to an injured party as
set forth in Section 52(54)(a)(1)(a) of the Israel Securities Law,
5728-1968, or the Securities Law, and expenses that the Office
Holder incurred in connection with a proceeding under Chapters H’3,
H’4 or I’1 of the Securities Law, including reasonable litigation
expenses, including attorney’s fees, or in connection with Article
D of Chapter Four of Part Nine of the Companies Law;
|
|
•
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Expenses
incurred by the Office Holder in connection with a proceeding under
Chapter G’1, of the Israel Restrictive Trade Practices Law,
5748-1988, or the Restrictive Trade Law, including reasonable
litigation expenses, including attorney’s fees.
|
Under the
Companies Law, exemption and indemnification of, and procurement of
insurance coverage for, our Office Holders, must be approved by our
Compensation Committee and our Board of Directors and, with respect
to an Office Holder who is the CEO or a director, also by our
shareholders. However, according to regulations promulgated under
the Companies Law, shareholders and Board approvals for the
procurement of such insurance are not required if the insurance
policy is approved by our Compensation Committee and: (i) the terms
of such policy are within the framework for insurance coverage as
approved by our shareholders and set forth in our Compensation
Policy; (ii) the premium paid under the insurance policy is at fair
market value; and (iii) the insurance policy does not and may not
have a substantial effect on the Company’s profitability, assets or
obligations.
In accordance with our Compensation Policy, we are currently
entitled to hold directors’ and officers’ liability insurance
policy for the benefit of our Office Holders with insurance
coverage of up to $50 million and with an annual premium of up to
$900,000.
Our Office Holders’
Indemnification. Our Articles provide that, subject to
the provisions of the Companies Law, we may indemnify any of our
Office Holders for all liabilities and expenses incurred by them
arising from or as a result of any act (or omission) carried out by
them as Office Holders of the Company, including as follows:
|
•
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For any
monetary liabilities or obligations imposed on our Office Holder in
favor of another person pursuant to a court judgment, including a
compromise judgment or an arbitrator’s decision approved by a
court;
|
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•
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For any
payments which our Office Holder is obligated to make to an injured
party as set forth in Section 52(54)(a)(1)(a) of the Securities Law
and expenses the Office Holder incurred in connection with a
proceeding under Chapters H’3, H’4 or I’1 of the Securities Law,
including reasonable litigation expenses, including attorney’s
fees, or in connection with Article D of Chapter Four of Part Nine
of the Companies Law;
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|
•
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For reasonable
litigation expenses, including attorney’s fees, incurred by the
Office Holder in consequence of an investigation or proceeding
instituted against the Office Holder by an authority that is
authorized to conduct such investigation or proceeding, and which
was concluded without filing of an indictment against the Office
Holder and without imposing on the Office Holder a financial
obligation in lieu of criminal proceedings, or which was concluded
without filing of an indictment against the Office Holder but with
imposing on such Office Holder a financial obligation in lieu of
criminal proceedings in respect of an offense that does not require
proof of criminal intent or in connection with a financial
sanction; For the purposes hereof: (i) “a proceeding that
concluded without filing an indictment in a matter in respect of
which an investigation was conducted”; and (ii) “financial
obligation in lieu of a criminal proceeding”, shall have the
meanings specified in Section 260(a)(1A) of the Companies
Law;
|
|
•
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For reasonable
litigation expenses, including attorney’s fees, incurred by the
Office Holder or which the Office Holder is ordered to pay by a
court, in a proceeding filed against the Office Holder by the
Company or on its behalf or by another person, or in a criminal
action of which the Office Holder is acquitted, or in a criminal
action in which the Office Holder is convicted of an offense that
does not require proof of criminal intent;
|
|
•
|
For expenses
incurred by our Office Holder in connection with a proceeding under
Chapter G’1, of the Restrictive Trade Law, including reasonable
litigation expenses, including attorney’s fees;
|
|
•
|
For any other
liability, obligation or expense indemnifiable or which our Officer
Holders may from time to time be indemnifiable by law.
|
The Company may undertake to
indemnify an office holder as mentioned above: (a) prospectively,
provided that with respect of the first act (financial liability)
the undertaking is limited to events which in the opinion of the
board of directors are foreseeable in light of the Company’s actual
operations when the undertaking to indemnify is given, and to an
amount or criteria set by the board of directors as reasonable
under the circumstances, and further provided that such events and
amount or criteria are set forth in the undertaking to indemnify,
and (b) retroactively.
Indemnification letters, covering
indemnification of those liabilities discussed above, were granted
to each of our present Office Holders. Hence, we undertook to
indemnify our Office Holders to the fullest extent permitted under
the Companies Law.
Our Office Holder’s
Exemption. Our Articles provide that, subject to the
provisions of the Companies Law, we may exempt and release our
Office Holders, including in advance, from all or part of such
Office Holder’s liability for monetary or other damages due to a
breach of their duty of care to the Company. Our directors are
released and exempt from all liability as aforesaid to the fullest
extent permitted by law with respect to any such breach, which has
been or may be committed.
Limitations on Insurance, Indemnification and
Exemption. The Companies Law provides that a company
may not insure, exempt or indemnify an office holder for any breach
of his or her liability arising from any of the following:
|
•
|
a breach by
the office holder of his or her duty of loyalty, except that the
company may enter into an insurance contract or indemnify an office
holder if the office holder acted in good faith and had a
reasonable basis to believe that the act would not prejudice the
company;
|
|
•
|
a breach by
the office holder of his or her duty of care if such breach was
intentional or reckless, but unless such breach was solely
negligent;
|
|
•
|
any act or
omission done with the intent to derive an illegal personal
benefit; or
|
|
•
|
any fine,
civil fine, financial sanction or monetary settlement in lieu of
criminal proceedings imposed on such office holder.
|
Item
9. Exhibits
|
Exhibit
Number
|
|
Description of Document
|
|
1.1**
|
|
Form of Underwriting
Agreement.
|
|
|
|
|
|
4.1
|
|
Specimen Certificate for Ordinary
Shares (incorporated by reference to Exhibit 4.1 to the
Registrant’s Registration Statement on Form F-1/A filed with the
SEC on August 2, 2000 (File. No 333-12316).
|
|
|
|
|
|
|
|
|
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|
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4.3**
|
|
Form of Debt Securities.
|
|
|
|
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|
|
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|
|
|
|
|
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4.5**
|
|
Form of Warrant.
|
|
|
|
|
|
4.6**
|
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Form of Unit Agreement.
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25.1+
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The Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of
the Trustee under the Indenture.
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_____________
* Filed
herewith.
** To be
filed, if applicable, as an exhibit to a post-effective amendment
to this registration statement or as an exhibit to a report filed
under the Securities Exchange Act of 1934, as amended, and
incorporated herein by reference.
+ To be
filed, if applicable, as an exhibit to a post-effective amendment
to this registration statement or as an exhibit to a report filed
under the Securities Exchange Act of 1934, as amended, and
incorporated herein by reference, in accordance with Section
305(b)(2) of the Trust Indenture Act of 1939.
Item
10. Undertakings
(a) The
undersigned Registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i)
To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective
registration statement;
(iii)
To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
Provided however, That: Paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or
furnished to the SEC by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4)
To file a post-effective amendment to the registration statement to
include any financial statements required by Item 8.A. of Form 20-F
at the start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise required
by Section 10(a)(3) of the Act need not be furnished, provided, that the registrant includes
in the prospectus, by means of a post-effective amendment,
financial statements required pursuant to this paragraph (a)(4) and
other information necessary to ensure that all other information in
the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect
to registration statements on Form F-3, a post-effective amendment
need not be filed to include financial statements and information
required by Section 10(a)(3) of the Act or Rule 3-19 of this
chapter if such financial statements and information are contained
in periodic reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in the Form F-3.
(5)
That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser:
(i)
If the registrant is relying on Rule 430B:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the
registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date; or
(ii)
If the registrant is subject to Rule 430C, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying
on Rule 430B or other than prospectuses filed in reliance on Rule
430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of
first use.
(6) That, for
the purpose of determining liability of a registrant under the
Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned Registrant undertakes that in a
primary offering of securities of the undersigned Registrant
pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of
any of the following communications, the undersigned Registrant
will be a seller to the purchaser and will be considered to offer
or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant
relating to the offering required to be filed pursuant to Rule
424;
(ii) Any free
writing prospectus relating to the offering prepared by or on
behalf of the undersigned Registrant or used or referred to by the
undersigned Registrant;
(iii) The
portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
Registrant or its securities provided by or on behalf of the
undersigned Registrant; and
(iv) Any other
communication that is an offer in the offering made by the
undersigned Registrant to the purchaser.
(b) That, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant’s Annual Report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, office holders and
controlling persons of the Registrant, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by
a director, office holder or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, office holder or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
(d) To file
an application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act of 1939, or the Act, in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form F-3 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunder duly authorized, in the City of Holon,
State of Israel, on July 30, 2020.
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COMPUGEN LTD.
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By:
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/s/ Anat Cohen-Dayag, Ph.D.
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Name:
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Anat Cohen-Dayag, Ph.D.
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Title:
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President and Chief Executive
Officer
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That the
undersigned officers and directors of Compugen Ltd., an Israeli
corporation, do hereby constitute and appoint Anat Cohen-Dayag,
Ph.D., President and Chief Executive Officer, and Ari Krashin,
Chief Financial Officer, and each of them individually, with full
powers of substitution and resubstitution, the lawful
attorneys-in-fact and agents with full power and authority to do
any and all acts and things and to execute any and all instruments
which said attorneys and agents, determine may be necessary or
advisable or required to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules or regulations or
requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the
generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments,
both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents
filed as part of or in conjunction with this Registration Statement
or amendments or supplements thereof, and each of the undersigned
hereby ratifies and confirms that said attorneys and agents, shall
do or cause to be done by virtue hereof. This Power of Attorney may
be signed in several counterparts.
Pursuant to the
requirements of the Securities Act of 1933, this registration
statement has been signed by each of the following persons in the
capacities and on the dates indicated:
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Signature
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Title(s)
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Date
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/s/ Anat Cohen-Dayag, Ph.D.
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President, Chief Executive Officer
and Director
(principal executive officer)
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July 30,
2020
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Anat Cohen-Dayag, Ph.D.
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/s/ Ari Krashin
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Chief Financial and Operating
Officer
(principal financial and accounting
officer)
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July 30,
2020
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Ari Krashin
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/s/ Paul Sekhri
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Chairman of the Board
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July 30,
2020
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Paul Sekhri
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/s/ Jean-Pierre Bizzari, M.D.
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Director
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July 30,
2020
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Jean-Pierre Bizzari, M.D.
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/s/ Gilead Halevy
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July 30,
2020
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Gilead Halevy
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/s/ Kinneret Livnat Savitzky,
Ph.D.
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July 30,
2020
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Kinneret Livnat Savitzky,
Ph.D.
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/s/ Sanford Zweifach
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Director |
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July 30,
2020
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Sanford Zweifach
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/s/ Eran Perry
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Director |
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July 30,
2020
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Eran Perry
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SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant to the
Securities Act of 1933, as amended, the undersigned, Compugen USA,
Inc., the duly authorized representative in the United States of
Compugen Ltd., has signed this registration statement on July 30,
2020.
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COMPUGEN USA, INC.
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By:
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/s/ Julia Decker
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Name:
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Julia Decker
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Title:
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Treasurer and Director of Finance
of Compugen USA, Inc.
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II - 7
