As
filed with the Securities and Exchange Commission on March 29, 2018
Registration
No. 333-218336
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
POST-EFFECTIVE
AMENDMENT
NO. 1
TO
FORM
F-1
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Can-Fite
BioPharma Ltd.
(Exact
name of registrant as specified in its charter)
State
of Israel
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2834
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Not
applicable
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(State
or other jurisdiction of
incorporation
or organization)
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(Primary
Standard Industrial
Classification
Code Number)
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(I.R.S.
Employer
Identification
No.)
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10
Bareket Street,
Kiryat
Matalon,
P.O.
Box 7537,
Petah-Tikva
4951778,
Israel
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Vcorp
Services, LLC
25
Robert Pitt Drive, Suite 204
Monsey,
New York 10952
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Gary
M. Emmanuel, Esq.
McDermott
Will & Emery LLP
340
Madison Avenue
New
York, NY 10173
+1
212 547 5400
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Ronen
Kantor, Adv.
Doron
Tikotzky Kantor Gutman Cederboum & Co.
B.S.R.
4 Tower, 33rd Floor
7
Metsada Street
Bnei
Brak 5126112 Israel
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Tel:
+972-3-613-3371
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Approximate
date of commencement of proposed sale to the public:
As soon as practicable after this registration statement is declared
effective.
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, check the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the
same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging
growth company ☒
If
an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards†
provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall
become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
Explanatory
Note
This Post-Effective Amendment
No. 1 (this “Post-Effective Amendment”) to the Registration Statement on Form F-1 (File No. 333-218336) (the “Registration
Statement”) is being filed pursuant to our undertaking in the Registration Statement to update and supplement information
contained in the Registration Statement, as originally filed with the Securities and Exchange Commission (the “SEC”)
on May 30, 2017 and declared effective by the SEC on June 13, 2017, to incorporate by reference the Company’s Annual Report
on Form 20-F for the year ended December 31, 2017 as filed with the SEC on March 28, 2018 and to make certain updates to the selling
shareholder table included in the prospectus contained in the Registration Statement (the “Prospectus”). The Registration
Statement originally covered a resale (the “Offering”), by the selling shareholders identified in this prospectus,
of up to an aggregate of 2,750,000 ordinary shares, par value NIS 0.25 per share, represented by 1,375,000 of our American Depository
Shares (“ADS”), consisting of (i) 2,500,000 ordinary shares represented by 1,250,000 of our ADSs, issuable upon the
exercise of warrants originally issued in a private placement on January 2017, and (ii) 250,000 ordinary shares represented by
125,000 ADSs issuable upon the exercise of placement agent warrants issued in connection with the private placement.
The information included
in this filing updates the Registration Statement and the prospectus contained therein. No additional securities are being registered
under this Post-Effective Amendment. All applicable registration fees were paid at the time of the original filing of the Registration
Statement.
The
information in this preliminary prospectus is not complete and may be changed. The selling shareholders may not sell these securities
until the Securities and Exchange Commission has declared this registration statement effective. This preliminary prospectus is
not an offer to sell these securities and we are not soliciting offers to buy these securities in any state or jurisdiction where
such offer or sale is not permitted.
PRELIMINARY
PROSPECTUS
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SUBJECT
TO COMPLETION
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DATED
MARCH 29, 2018
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Can-Fite
BioPharma Ltd.
2,750,000
ORDINARY SHARES
REPRESENTED
BY 1,375,000 AMERICAN DEPOSITARY SHARES
This
prospectus relates to the resale, by the selling shareholders identified in this prospectus, of up to an aggregate of up to 2,750,000
ordinary shares, par value NIS 0.25 per share of Can-Fite Biopharma Ltd., represented by 1,375,000 American Depository Shares,
or ADSs, consisting of (i) 2,500,000 ordinary shares represented by 1,250,000 ADSs issuable upon the exercise of warrants originally
issued in a private placement on January 2017, and (ii) 250,000 ordinary shares represented by 125,000 ADSs issuable upon the
exercise of placement agent warrants issued in connection with the private placement. The selling shareholders are identified
in the table commencing on page 6. Each ADS represents 2 ordinary shares. No ADSs are being registered hereunder for sale
by us. We will not receive any proceeds from the sale of the ADSs by the selling shareholders. All net proceeds from the
sale of the ordinary shares represented by ADSs covered by this prospectus will go to the selling shareholders. However,
we may receive the proceeds from any exercise of warrants if the holders do not exercise the warrants on a cashless basis. See
“Use of Proceeds.”
The
selling shareholders may sell all or a portion of the ordinary shares represented by ADSs from time to time in market transactions
through any market on which our ADSs are then traded, in negotiated transactions or otherwise, and at prices and on terms that
will be determined by the then prevailing market price or at negotiated prices directly or through a broker or brokers, who may
act as agent or as principal or by a combination of such methods of sale. See “Plan of Distribution”.
Our ADSs are
listed on the NYSE American under the symbol “CANF”. On March 28, 2018, the closing price of our ADSs on the NYSE American
was US$1.43 per ADS. Our ordinary shares also trade on the Tel Aviv Stock Exchange, or TASE, under the symbol “CFBI”.
On March 28, 2018, the last reported sale price of our ordinary shares on the TASE was NIS 2.542 or $0.72 per share (based on the
exchange rate reported by the Bank of Israel on the same day).
We
are an emerging growth company, as defined in the U.S. Jumpstart Our Business Startups Act of 2012, or the JOBS Act, and, as such,
have elected to comply with certain reduced public company reporting requirements.
Investing
in the ADSs involves a high degree of risk. See “Risk Factors” beginning on page 3 of this prospectus.
None
of the United States Securities and Exchange Commission, the Israel Securities Authority, or any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to
the contrary is a criminal offense.
The
date of this prospectus is , 2018.
TABLE
OF CONTENTS
About
This Prospectus
You
should rely only on the information contained in this prospectus and any related free-writing prospectus that we authorize to
be distributed to you. We have not authorized any person to provide you with information different from that contained in this
prospectus or any related free-writing prospectus that we authorize to be distributed to you. This prospectus is not an offer
to sell, nor is it seeking an offer to buy, these securities in any state where the offer or sale is not permitted. The information
in this prospectus speaks only as of the date of this prospectus unless the information specifically indicates that another date
applies, regardless of the time of delivery of this prospectus or of any sale of the securities offered hereby. Our business,
financial condition, results of operations, and prospects may have changed since that date. We do not take any responsibility
for, nor do we provide any assurance as to the reliability of, any information other than the information in this prospectus and
any free writing prospectus prepared by us or on our behalf. Neither the delivery of this prospectus nor the sale of the ADSs
means that information contained in this prospectus is correct after the date of this prospectus.
Market
data and certain industry data and forecasts used throughout this prospectus were obtained from internal company surveys, market
research, consultant surveys, publicly available information, reports of governmental agencies and industry publications and surveys.
Industry surveys, publications, consultant surveys and forecasts generally state that the information contained therein has been
obtained from sources believed to be reliable, but that the accuracy and completeness of such information is not guaranteed. We
have not independently verified any of the data from third-party sources, nor have we ascertained the underlying economic assumptions
relied upon therein. Similarly, internal surveys, industry forecasts and market research, which we believe to be reliable based
upon our management’s knowledge of the industry, have not been independently verified. Forecasts are particularly likely
to be inaccurate, especially over long periods of time. In addition, we do not necessarily know what assumptions regarding general
economic growth were used in preparing the forecasts we cite. Statements as to our market position are based on the most currently
available data. While we are not aware of any misstatements regarding the industry data presented in this prospectus, our estimates
involve risks and uncertainties and are subject to change based on various factors, including those discussed under the heading
“Risk Factors” in this prospectus.
Our
financial statements are prepared and presented in accordance with International Financial Reporting Standards, or IFRS, as issued
by the International Accounting Standards Board, or IASB. Our historical results do not necessarily indicate our expected results
for any future periods.
Certain
figures included in this prospectus have been subject to rounding adjustments. Accordingly, figures shown as totals in certain
tables may not be an arithmetic aggregation of the figures that precede them.
We
have not taken any action to permit a public offering of the ADSs and/or warrants outside the United States or to permit the possession
or distribution of this prospectus outside the United States. Persons outside the United States who come into possession of this
prospectus must inform themselves about and observe any restrictions relating to the offering of the ADSs and warrants and the
distribution of this prospectus outside of the United States.
PROSPECTUS
SUMMARY
This
summary highlights selected information contained elsewhere in this prospectus that we consider important. This summary does not
contain all of the information you should consider before investing in our securities. You should read this summary together with
the entire prospectus, including the risks related to our business, our industry, investing in our ordinary shares and our location
in Israel, that we describe under “Risk Factors” and our consolidated financial statements and the related notes included
at the end of this prospectus before making an investment in our securities.
Overview
We
are a clinical-stage biopharmaceutical company focused on developing orally bioavailable small molecule therapeutic products for
the treatment of autoimmune inflammatory indications, oncology and liver diseases as well as sexual dysfunction. Our platform
technology utilizes the Gi protein associated A3AR as a therapeutic target. A3AR is highly expressed in inflammatory and cancer
cells, and not significantly expressed in normal cells, suggesting that the receptor could be a unique target for pharmacological
intervention. Our pipeline of drug candidates are synthetic, highly specific agonists and allosteric modulators, or ligands or
molecules that initiate molecular events when binding with target proteins, targeting the A3AR.
Our
strategy is to build a fully integrated biotechnology company that discovers, in-licenses and develops an innovative and effective
small molecule drug portfolio of ligands that bind to a specific therapeutic target for the treatment of autoimmune-inflammatory,
oncological, ophthalmic diseases and more. We continue to develop and test our existing pipeline, while also testing other indications
for our existing drug candidates and examining, from time to time, the potential of other small molecules that may fit our platform
technology of utilizing small molecules to target the A3AR. We generally focus on drugs with global market potential and we seek
to create global partnerships to effectively assist us in developing our portfolio and to market our products.
We
have in-licensed an allosteric modulator of the A3AR, CF602 from Leiden University. In addition, we have out-licensed Piclidenoson
(i) for the treatment of rheumatoid arthritis to Kwang Dong Pharmaceutical Co. Ltd., a South Korean limited company, for the Korean
market, (ii) for the treatment of psoriasis and rheumatoid arthritis to Cipher Pharmaceuticals for the Canadian market, and (iii)
for the treatment of rheumatoid arthritis and psoriasis to Gebro Holding GmBH, in Spain, Switzerland and Austria. We have also
out-licensed Namodenoson for the treatment of liver cancer in South Korea to Chong Kun Dang Pharmaceuticals.
Our
product candidates, CF101, CF102 and CF602 are being developed to treat autoimmune inflammatory indications, oncology and liver
diseases as well as sexual dysfunction. CF101, also known as Piclidenoson, is in an advance stage of clinical development for
the treatment of autoimmune-inflammatory diseases, including rheumatoid arthritis and psoriasis. CF102, also known as Namodenoson,
is being developed for the treatment of hepatocellular carcinoma, or HCC, also known as primary liver cancer, and has orphan drug
designation for the treatment of HCC in the U.S. and Europe. Namodenoson was granted Fast Track designation by the FDA as a second
line treatment to improve survival for patients with advanced hepatocellular carcinoma who have previously received Nexavar (sorafenib).
Namodenoson is also being developed for the treatment of non-alcoholic steatohepatitis, or NASH, following our study which revealed
compelling pre-clinical data on Namodenoson in the treatment of NASH, a disease for which no FDA approved therapies currently
exist. CF602 is our second generation allosteric drug candidate for the treatment of sexual dysfunction, which has shown efficacy
in the treatment of erectile dysfunction in preclinical studies and we are investigating additional compounds, targeting A3AR,
for the treatment of sexual dysfunction. Preclinical studies revealed that our drug candidates have potential to treat additional
inflammatory diseases, such as Crohn’s disease, oncological diseases and viral diseases, such as the JC virus.
We
are currently: (i) conducting a Phase III trial for Piclidenoson in the treatment of rheumatoid arthritis, (ii) conducting preparatory
work for a Phase III trial for Piclidenoson in the treatment of psoriasis following agreement with the EMA on our protocol design,
(iii) conducting a Phase II study with respect to the development of Namodenoson for the treatment of HCC and completed enrollment
of 78 patients in the third quarter of 2017 with results expected in the second half of 2018, (iv) conducting a Phase II trial
of Namodenoson in the treatment of NASH with completion of patient enrollment expected toward the end of 2018 and data release
expected in the first half of 2019, and (v) investigating additional compounds, targeting the A3 adenosine receptor, for the treatment
of sexual dysfunction and have therefore postponed a planned Investigational New Drug (IND) submission for this indication.
January
2017 Financing
On
January 24, 2017, we sold to certain institutional investors an aggregate of 2,500,000 ADSs in a registered direct offering at
$2.00 per ADS resulting in gross proceeds of approximately $5,000,000. In addition, we issued to the investors unregistered warrants
to purchase 1,250,000 ADSs in a private placement. The warrants may be exercised after six months from issuance for a period of
five and a half years from issuance and have an exercise price of $2.25 per ADS, subject to adjustment as set forth therein. The
warrants may be exercised on a cashless basis if six months after issuance there is no effective registration statement registering
the ADSs underlying the warrants. We paid an aggregate of $360,000 in placement agent fees and expenses and issued unregistered
placement agent warrants to purchase 125,000 ADS on the same terms as the warrants except they have a term of five years.
The
selling shareholders named in this prospectus may offer and sell up to an aggregate of
2,750,000
ordinary
shares represented by 1,375,000 ADSs issuable upon exercise of these warrants.
Throughout
this prospectus, when we refer to our ordinary shares being registered on behalf of the selling shareholders, we are referring
to the ordinary shares represented by ADSs that may be issuable upon exercise of warrants and placement agent warrants. Throughout
this prospectus, when we refer to the selling shareholders, we are referring to the selling shareholders named herein and, as
applicable, any donees, pledgees, transferees or other successors-in-interest selling shares received after the date of this prospectus
from a selling shareholder as a gift, pledge, or other non-sale related transfer that may be identified in a supplement to this
prospectus or, if required, a post-effective amendment to the registration statement of which this prospectus is a part.
The
Offering
ADSs
Offered
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Up
to an aggregate of up to 2,750,000 ordinary shares, par value NIS 0.25 per share of Can-Fite Biopharma Ltd., represented by 1,375,000
American Depositary Shares, or ADSs, consisting of (i) 2,500,000 ordinary shares represented by 1,250,000 ADSs issuable upon the
exercise of warrants originally issued in a private placement on January 2017, and (ii) 250,000 ordinary shares represented by
125,000 ADSs issuable upon the exercise of placement agent warrants issued in connection with the private placement. The selling
shareholders are identified in the table commencing on page 6. Each ADS represents 2 ordinary shares. The warrants may
be exercised after six months from issuance for a period of five and a half years from issuance (in the case of the investor warrants)
and for a period of five years from issuance (in the case of the placement agent warrants) and have an exercise price of $2.25
per ADS, subject to adjustment as set forth therein. The warrants may be exercised on a cashless basis if six months after issuance
there is no effective registration statement registering the ADSs underlying the warrants.
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Ordinary
shares outstanding
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39,962,290
ordinary shares as of March 28, 2018.
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Use
of proceeds
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We
will not receive any proceeds from the sale of the ordinary shares represented by ADSs by the selling shareholders. All net
proceeds from the sale of the ordinary shares represented by ADSs covered by this prospectus will go to the selling shareholders.
However, we may receive the proceeds from any exercise of warrants and placement agent warrants if the holders do not exercise
the warrants on a cashless basis. See the section of this prospectus titled “Use of Proceeds.”
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NYSE
American Symbol for ADSs
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CANF
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Risk
factors
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Before
investing in our securities, you should carefully read and consider the “Risk Factors” beginning on page 3
of this prospectus.
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Unless
otherwise indicated, the number of ordinary shares outstanding prior to and after this offering is based on 39,962,290 ordinary
shares outstanding as of March 28, 2018, and excludes:
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1,490,424
ordinary shares issuable upon the exercise of stock options outstanding as of March 28,
2018 at a weighted-average exercise price of $1.35 per ordinary share;
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13,335,004 ordinary shares represented by 6,667,502 ADSs issuable upon the exercise of warrants outstanding
as of March 28, 2018 at a weighted-average exercise price of $3.213 per ADS; and
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1,181,634
additional ordinary shares available for future issuance as of March 28, 2018 under our 2013 Share Option Plan.
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Unless
otherwise indicated, all information in this prospectus assumes no exercise of the outstanding options or warrants described above.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. you should carefully consider the risk factors set forth in our most
recent Annual Report on Form 20-F on file with the SEC, which is incorporated by reference into this prospectus, as well as the
following risk factors, which supplement or augment the risk factors set forth in our Annual Report on Form 20-F. Before making
an investment decision, you should carefully consider these risks as well as other information we include or incorporate by reference
in this prospectus. The risks and uncertainties not presently known to us or that we currently deem immaterial may also materially
harm our business, operating results and financial condition and could result in a complete loss of your investment.
The
sale of a substantial amount of our ordinary shares or ADSs, including resale of the ADSs issuable upon the exercise of the warrants
held by the selling shareholders in the public market could adversely affect the prevailing market price of our common stock.
We
are registering for resale 2,750,000 ordinary shares represented by 1,375,000 ADSs issuable upon the the exercise of warrants
held by the selling shareholders. Sales of substantial amounts of shares of our ordinary shares or ADSs in the public market,
or the perception that such sales might occur, could adversely affect the market price of our ordinary shares, and the market
value of our other securities. We cannot predict if and when selling shareholders may sell such shares in the public markets.
Furthermore, in the future, we may issue additional ordinary shares or ADSs or other equity or debt securities convertible into
ordinary shares or ADSs. Any such issuance could result in substantial dilution to our existing shareholders and could cause our
stock price to decline.
SPECIAL
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus contains forward-looking statements, about our expectations, beliefs or intentions regarding, among other things, our
product development efforts, business, financial condition, results of operations, strategies or prospects. In addition, from
time to time, we or our representatives have made or may make forward-looking statements, orally or in writing. Forward-looking
statements can be identified by the use of forward-looking words such as “believe,” “expect,” “intend,”
“plan,” “may,” “should” or “anticipate” or their negatives or other variations
of these words or other comparable words or by the fact that these statements do not relate strictly to historical or current
matters. These forward-looking statements may be included in, but are not limited to, various filings made by us with the U.S.
Securities and Exchange Commission, or the SEC, press releases or oral statements made by or with the approval of one of our authorized
executive officers. Forward-looking statements relate to anticipated or expected events, activities, trends or results as of the
date they are made. Because forward-looking statements relate to matters that have not yet occurred, these statements are inherently
subject to risks and uncertainties that could cause our actual results to differ materially from any future results expressed
or implied by the forward-looking statements. Many factors could cause our actual activities or results to differ materially from
the activities and results anticipated in forward-looking statements, including, but not limited to, the factors summarized below.
This
prospectus identifies important factors which could cause our actual results to differ materially from those indicated by the
forward-looking statements, particularly those set forth under the heading “Risk Factors.” The risk factors included
in this prospectus are not necessarily all of the important factors that could cause actual results to differ materially from
those expressed in any of our forward-looking statements. Given these uncertainties, readers are cautioned not to place undue
reliance on such forward-looking statements. Factors that could cause our actual results to differ materially from those expressed
or implied in such forward-looking statements include, but are not limited to:
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our
history of losses and needs for additional capital to fund our operations and our inability
to obtain additional capital on acceptable terms, or at all;
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uncertainties of cash flows and inability to meet working
capital needs;
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the
initiation, timing, progress and results of our preclinical studies, clinical trials
and other product candidate development efforts;
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our
ability to advance our product candidates into clinical trials or to successfully complete
our preclinical studies or clinical trials;
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our
receipt of regulatory approvals for our product candidates, and the timing of other regulatory
filings and approvals;
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the clinical
development, commercialization and market acceptance of our product candidates;
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our ability
to establish and maintain strategic partnerships and other corporate collaborations;
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the
implementation of our business model and strategic plans for our business and product
candidates;
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the
scope of protection we are able to establish and maintain for intellectual property rights
covering our product candidates and our ability to operate our business without infringing
the intellectual property rights of others;
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competitive
companies, technologies and our industry; and
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statements as
to the impact of the political and security situation in Israel on our business.
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All
forward-looking statements attributable to us or persons acting on our behalf speak only as of the date of this prospectus and
are expressly qualified in their entirety by the cautionary statements included in this prospectus. We undertake no obligations
to update or revise forward-looking statements to reflect events or circumstances that arise after the date made or to reflect
the occurrence of unanticipated events. In evaluating forward-looking statements, you should consider these risks and uncertainties.
USE
OF PROCEEDS
We
will not receive any proceeds from the sale of the ordinary shares represented by ADSs by the selling shareholders. All net proceeds
from the sale of the ordinary shares represented by ADSs and the warrants and placement agent warrants covered by this prospectus
will go to the selling shareholders. We expect that the selling shareholders will sell their ordinary shares represented by ADSs
as described under “Plan of Distribution.”
We
may receive proceeds from the exercise of the warrants and placement agent warrants and issuance of the warrant ADSs to the extent
that these warrants are exercised for cash. Warrants, however, are exercisable on a cashless basis under certain circumstances.
If all of the warrants mentioned above were exercised for cash in full, the proceeds would be approximately $3.1 million. We intend
to use the net proceeds of such warrant exercise, if any, for research and development, general and administrative expenses, and
for working capital purposes. Pending such uses, we intend to invest the net proceeds in short-term, interest-bearing,
investment grade securities or as otherwise pursuant our customary investment policies. We can make no assurances that any of
the warrants and placement agent warrants will be exercised, or if exercised, that they will be exercised for cash, the quantity
which will be exercised or in the period in which they will be exercised.
CAPITALIZATION
The
following table sets forth our capitalization on an actual basis as of December 31, 2017.
The
information in this table should be read in conjunction with and is qualified by reference to the financial statements and notes
thereto and other financial information incorporated by reference into this prospectus.
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As December 31,
2017
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(Actual)
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(U.S.$
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in thousands)
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Long-term liabilities:
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2,989
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Shareholders’ equity:
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Share capital
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2,401
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Share premium
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100,283
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Capital reserve
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6,296
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Warrants
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-
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Treasury shares at cost
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-
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Accumulated other comprehensive loss
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-
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Accumulated deficit
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(105,919
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)
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Non-controlling interests
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-
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Total shareholder’s equity
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3,061
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Total capitalization (long-term liabilities and equity)
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6,050
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SELLING
SHAREHOLDERS
The ordinary shares
represented by ADSs being offered by the selling shareholders are those ordinary shares represented by ADSs issuable upon exercise
of warrants previously issued in connection with our private placement that closed in January 2017. For additional information
regarding the issuance of those ADSs and warrants to purchase ADSs, see “Prospectus Summary – January 2017 Financing”
above. We are registering the ordinary shares represented by ADSs in order to permit the selling shareholders to offer the ordinary
shares represented by ADSs for resale from time to time. Other than with respect to H.C. Wainwright & Co. LLC, or H.C. Wainwright,
which acted as our placement agent in the January 2017 financing, and previously has acted as a placement agent for us in financings
in March 2018, September and October 2015 and December 2014, except for the ownership of the warrants and placement agent warrants
issued, and the ADSs issued and issuable, pursuant to prior financings, the selling shareholders have not had any material relationship
with us within the past three years.
The table below lists
the selling shareholders and other information regarding the beneficial ownership of the ordinary shares represented by ADSs by
each of the selling shareholders. The second column lists the number of ordinary shares represented by ADSs beneficially owned
by each selling stockholder, based on its ownership of ADSs and warrants or placement agent warrants to purchase ADSs, as of March
28, 2018, assuming exercise of the warrants or placement agent warrants held by the selling shareholders on that date, without
regard to any limitations on conversions or exercises. The third column lists the maximum number of ordinary shares represented
by ADSs being offered in this prospectus by the selling shareholders. The fourth and fifth columns list the amount of ordinary
shares represented by ADSs owned after the offering, by number of ordinary shares represented by ADSs and percentage of outstanding
ordinary shares, assuming in both cases the sale of all of the ordinary shares represented by ADSs offered by the selling shareholders
pursuant to this prospectus, and without regard to any limitations on conversions or exercises.
Under the terms of
the warrants and placement agent warrants issued in the January 2017 financing as well as the applicable financings in March 2018,
September and October 2015 and December 2014 a selling stockholder may not exercise the warrants to the extent such exercise would
cause such selling stockholder, together with its affiliates, to beneficially own a number of ordinary shares which would exceed
4.99% of our then outstanding ordinary shares following such exercise, excluding for purposes of such determination ordinary shares
not yet issuable upon exercise of the warrants and placement agent warrants which have not been exercised. The number of shares
does not reflect this limitation. The selling shareholders may sell all, some or none of their ordinary shares represented by
ADSs or warrants or placement agent warrants in this offering. See “Plan of Distribution.”
Selling Shareholder
|
|
Number of Ordinary Shares Owned Prior to Offering
|
|
|
Maximum Number of Ordinary Shares to be Sold Pursuant to this Prospectus
|
|
|
Number of Ordinary Shares Owned After the Offering
|
|
|
Percentage of Ordinary Shares Owned After the Offering
|
|
Sabby Healthcare Master Fund, Ltd. (1)
|
|
|
1,584,786
|
(2)
|
|
|
500,000
|
(3)
|
|
|
1,084,786
|
(4)
|
|
|
2.6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sabby Volatility Warrant Master Fund, Ltd. (5)
|
|
|
5,863,330
|
(6)
|
|
|
250,000
|
(7)
|
|
|
5,613,330
|
(8)
|
|
|
13.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Osher Capital Partners LLC (9)
|
|
|
100,000
|
(10)
|
|
|
100,000
|
(10)
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alpha Capital Anstalt (11)
|
|
|
650,000
|
(12)
|
|
|
650,000
|
(12)
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Intracoastal Capital LLC (13)
|
|
|
2,613,268
|
(13)
|
|
|
500,000
|
(14)
|
|
|
2,113,268
|
(15)
|
|
|
5.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Empery Asset Master, Ltd.(16)
|
|
|
576,448
|
(17)
|
|
|
217,904
|
(18)
|
|
|
358,544
|
(19)
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Empery Tax Efficient, L.P. (20)
|
|
|
114,471
|
(21)
|
|
|
114,471
|
(21)
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Empery Tax Efficient II, L.P.(22)
|
|
|
707,957
|
(23)
|
|
|
167,625
|
(24)
|
|
|
540,332
|
(25)
|
|
|
1.3
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OTA LLC (26)
|
|
|
37,500
|
(27)
|
|
|
37,500
|
(27)
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael Vasinkevich (28)
|
|
|
649,220
|
(29)
|
|
|
161,250
|
(30)
|
|
|
487,970
|
(31)
|
|
|
1.2%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael Mirsky (28)
|
|
|
150,380
|
(32)
|
|
|
41,250
|
(33)
|
|
|
109,130
|
(34)
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mark Viklund (28)
|
|
|
19,732
|
(35)
|
|
|
7,500
|
(36)
|
|
|
12,232
|
(37)
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Charles Worthman (28)
|
|
|
9,910
|
(38)
|
|
|
2,500
|
(39)
|
|
|
7,410
|
(40)
|
|
|
*
|
|
* Denotes less than 1%
(1)
|
Sabby Management, LLC is the investment manager of Sabby Healthcare Master Fund, Ltd., or Sabby HMF, and shares voting and investment power with respect to these shares in this capacity. As manager of Sabby Management, LLC, Hal Mintz also shares voting and investment power on behalf of Sabby HMF. Each of Sabby Management, LLC and Hal Mintz disclaims beneficial ownership over the securities listed except to the extent of their pecuniary interest therein. The address of principal business office of Sabby HMF is 10 Mountainview Road, Suite 205, Upper Saddle River, New Jersey 07458.
|
(2)
|
Represents (i) 758,622 ordinary shares represented by 379,311 ADSs issuable upon exercise of warrants issued in our September 2015 financing, (ii) 326,164 ordinary shares represented by 163,082 ADSs issuable upon exercise of warrants issued in our October 2015 financing, and (iii) 500,000 ordinary shares represented by 250,000 ADSs issuable upon exercise of warrants issued in our January 2017 financing,
|
(3)
|
Represents 500,000 ordinary shares represented by 250,000 ADSs issuable upon exercise of warrants issued in our January 2017 financing.
|
|
|
(4)
|
Represents (i) 758,622 ordinary shares represented by 379,311 ADSs issuable upon exercise of warrants issued in our September 2015 financing, and (ii) 326,164 ordinary shares represented by 163,082 ADSs issuable upon exercise of warrants issued in our October 2015 financing.
|
|
|
(5)
|
Sabby Management, LLC is the investment manager of Sabby Volatility Warrant Master Fund, Ltd., or Sabby VWMF, and shares voting and investment power with respect to these shares in this capacity. As manager of Sabby Management, LLC, Hal Mintz also shares voting and investment power on behalf of Sabby VWMF. Each of Sabby Management, LLC and Hal Mintz disclaims beneficial ownership over the securities listed except to the extent of their pecuniary interest therein. The address of principal business office of S Sabby VWMF is 10 Mountainview Road, Suite 205, Upper Saddle River, New Jersey 07458.
|
|
|
(6)
|
Represents (i) 459,770 ordinary
shares represented by 229,885 ADSs issuable upon exercise of warrants issued in our September 2015 financing, (ii)
197,376 ordinary shares represented by 98,688 ADSs issuable upon exercise of warrants issued in our October 2015
financing, (iii) 250,000 ordinary shares represented by 125,000 ADSs issuable upon exercise of warrants issued in our
January 2017 financing, (iv) 2,456,182 ordinary shares represented by 1,228,091 ADSs issued in our March 2018 financing, and
(v) 2,500,002 ordinary shares represented by 1,250,001 ADSs issuable upon exercise of warrants issued in our March 2018
financing.
|
|
|
(7)
|
Represents 250,000 ordinary shares represented by 125,000 ADSs issuable upon exercise of warrants issued in our January 2017 financing.
|
|
|
(8)
|
Represents (i) 459,770 ordinary shares represented by 229,885 ADSs issuable upon exercise of warrants issued in our September 2015 financing, (ii) 197,376 ordinary shares represented by 98,688 ADSs issuable upon exercise of warrants issued in our October 2015 financing, (iii) 2,456,182 ordinary shares represented by 1,228,091 ADSs issued in our March 2018 financing, and (iv) 2,500,002 ordinary shares represented by 1,250,001 ADSs issuable upon exercise of warrants issued in our March 2018 financing.
|
|
|
(9)
|
Yisroel Kluger has voting and dispositive power over the securities owned by Osher Capital Partners, LLC, or Osher. The address of Osher is c/o LH Financial, 510 Madison Ave, Suite 1400, New York, NY 10022.
|
(10)
|
Represents 100,000 ordinary shares represented by 50,000 ADSs issuable upon exercise of warrants issued in our January 2017 financing.
|
|
|
(11)
|
Konrad Ackerman has voting and dispositive power over the securities owned by Alpha Capital, or Alpha. The address of Alpha is c/o LH Financial, 510 Madison Ave, Suite 1400, New York, NY 10022.
|
|
|
(12)
|
Represents 650,000 ordinary shares represented by 325,000 ADSs issuable upon exercise of warrants issued in our January 2017 financing.
|
|
|
(13)
|
Mitchell P. Kopin, or Mr. Kopin, and Daniel B. Asher, or Mr. Asher, each of whom are managers of Intracoastal Capital LLC, or Intracoastal, have shared voting control and investment discretion over the securities reported herein that are held by Intracoastal. As a result, each of Mr. Kopin and Mr. Asher may be deemed to have beneficial ownership (as determined under Section 13(d) of Exchange Act) of the securities reported herein that are held by Intracoastal.
|
In the aggregate, Mr. Kopin and
Mr. Asher may be deemed to have beneficial ownership (as determined under Section 13(d) of the Exchange Act) of 2,613,268 ordinary
shares, which consists of (i) 898,878 ordinary shares represented by 449,439 ADSs issuable upon exercise of warrants originally
issued in our December 2014 financing held by Intracoastal, (ii) 850,574 ordinary shares represented by 425,287 ADSs issuable upon
exercise of warrants issued in our September 2015 financing to Intracoastal, (iii) 363,816 ordinary shares represented by 181,908
ADSs issuable upon exercise of warrants issued in our October 2015 financing to Intracoastal, and (iv) 500,000 ordinary shares
represented by 250,000 ADSs issuable upon exercise of warrants issued in our January 2017 financing.
(14)
|
Represents 500,000 ordinary shares represented by 250,000 ADSs issuable upon exercise of warrants issued in our January 2017 financing.
|
|
|
(15)
|
Represents (i) 898,878 ordinary shares represented by 449,439 ADSs issuable upon exercise of warrants originally issued in our December 2014 financing held by Intracoastal, (ii) 850,574 ordinary shares represented by 425,287 ADSs issuable upon exercise of warrants issued in our September 2015 financing to Intracoastal, and (iii) 363,816 ordinary shares represented by 181,908 ADSs issuable upon exercise of warrants issued in our October 2015 financing to Intracoastal.
|
(16)
|
Empery Asset Management LP, the authorized agent of Empery Asset Master Ltd, or EAM, has discretionary authority to vote and dispose of the shares held by EAM and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by EAM. EAM, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares.
|
(17)
|
Represents (i) 358,544 ordinary shares represented by 179,272 ADSs issuable upon exercise of warrants issued
in our December 2014 financing, and (ii) 217,904 ordinary shares represented by 108,952 ADSs issuable upon exercise of warrants
issued in our January 2017 financing.
|
(18)
|
Represents 217,904 ordinary shares represented by 108,952 ADSs issuable upon exercise of warrants issued in our January 2017 financing.
|
(19)
|
Represents 358,544 ordinary shares represented by 179,272 ADSs issuable upon exercise of warrants
issued in our December 2014 financing.
|
(20)
|
Empery Asset Management LP, the authorized agent of Empery Tax Efficient, LP, or ETE, has discretionary authority to vote and dispose of the shares held by ETE and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by ETE. ETE, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares.
|
(21)
|
Represents 114,471 ordinary shares represented by 57,235.5 ADSs issuable upon exercise of warrants issued in our January 2017 financing.
|
(22)
|
Empery Asset Management LP, the authorized agent of Empery Tax Efficient, LP, or ETE II, has discretionary authority to vote and dispose of the shares held by ETE II and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by ETE II. ETE II, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares.
|
|
|
(23)
|
Represents (i) 540,332 ordinary shares represented by 270,166 ADSs issuable upon exercise of warrants issued in our December 2014 financing, and (ii) 167,625 ordinary shares represented by 83,812.5 ADSs issuable upon exercise of warrants issued in our January 2017 financing.
|
|
|
(24)
|
Represents 167,625 ordinary shares represented by 83,812.5 ADSs issuable upon exercise of warrants issued in our January 2017 financing.
|
|
|
(25)
|
Represents 540,332 ordinary shares represented by 270,166 ADSs issuable upon exercise of warrants issued in our December 2014 financing.
|
|
|
(26)
|
Ira Leventhal, a senior managing director of the selling shareholder has voting and investment control over the reported securities. OTA LLC, or OTA, is a broker-dealer registered with the Securities and Exchange Commission and a member of the Financial Industry Regulatory Authority. OTA is an underwriter with respect to its shares of common stock to be sold in this offering.
|
|
|
(27)
|
Represents 37,500 ordinary shares represented by 18,750 ADSs issuable upon exercise of placement agent warrants originally issued in connection with our January 2017 financing and assigned to OTA.
|
(28)
|
Referenced person is affiliated with H.C. Wainwright, a registered broker dealer. H.C. Wainwright is a registered broker-dealer and acted as the placement agent in the January 2017 financing as well as the September and October 2015 financings and the December 2014 financing. The address of H.C. Wainwright & Co., LLC, 430 Park Avenue, New York, NY 10022.
|
|
|
(29)
|
Represents (i) 57,978 ordinary shares represented by 28,989 ADSs issuable upon exercise of placement agent warrants issued in connection with our December 2014 financing, (ii) 133,448 ordinary shares represented by 66,724 ADSs issuable upon exercise of placement agent warrants issued in connection with our September 2015 financing, (iii) 71,544 ordinary shares represented by 35,772 ADSs issuable upon exercise of placement agent warrants issued in connection with our October 2015 financing, (iv) 161,250 ordinary shares represented by 80,625 ADSs issuable upon exercise of placement agent warrants issued in our January 2017 financing, and (v) 225,000 ordinary shares represented by 112,500 ADSs issuable upon exercise of placement agent warrants issued in our March 2018 financing.
|
|
|
(30)
|
Represents
161,250 ordinary shares represented by 80,625 ADSs issuable upon exercise of placement agent warrants issued in our January
2017 financing.
|
|
|
(31)
|
Represents (i) 57,978 ordinary shares represented
by 28,989 ADSs issuable upon exercise of placement agent warrants issued in connection with our December 2014 financing, (ii) 133,448
ordinary shares represented by 66,724 ADSs issuable upon exercise of placement agent warrants issued in connection with our September
2015 financing, (iii) 71,544 ordinary shares represented by 35,772 ADSs issuable upon exercise of placement agent warrants issued
in connection with our October 2015 financing, and (iv) 225,000 ordinary shares represented by 112,500 ADSs issuable upon exercise
of placement agent warrants issued in our March 2018 financing.
|
(32)
|
Represents (i) 17,080 ordinary shares represented by 8,540 ADSs issuable upon exercise of placement agent warrants issued in connection with our December 2014 financing, (ii) 39,310 ordinary shares represented by 19,655 ADSs issuable upon exercise of placement agent warrants issued in connection with our September 2015 financing, (iii) 21,074 ordinary shares represented by 10,537 ADSs issuable upon exercise of placement agent warrants issued in connection with our October 2015 financing, (iv) 41,250 ordinary shares represented by 20,625 ADSs issuable upon exercise of warrants issued in our January 2017 financing, and (v) 31,666 ordinary shares represented by 15,833 ADSs issuable upon exercise of placement agent warrants issued in our March 2018 financing.
|
(33)
|
Represents
41,250 ordinary shares represented by 20,625 ADSs issuable upon exercise of placement agent warrants issued in our January
2017 financing.
|
(34)
|
Represents (i) 17,080 ordinary shares represented by 8,540 ADSs issuable upon exercise of placement agent warrants issued in connection with our December 2014 financing, (ii) 39,310 ordinary shares represented by 19,655 ADSs issuable upon exercise of placement agent warrants issued in connection with our September 2015 financing, (iii) 21,074 ordinary shares represented by 10,537 ADSs issuable upon exercise of placement agent warrants issued in connection with our October 2015 financing, and (iv) 31,666 ordinary shares represented by 15,833 ADSs issuable upon exercise of placement agent warrants issued in our March 2018 financing.
|
(35)
|
Represents (i) 2,696 ordinary shares represented by 1,348 ADSs issuable upon exercise of placement agent warrants issued in connection with our December 2014 financing, (ii) 6,208 ordinary shares represented by 3,104 ADSs issuable upon exercise of placement agent warrants issued in connection with our September 2015 financing, (iii) 3,328 ordinary shares represented by 1,664 ADSs issuable upon exercise of placement agent warrants issued in connection with our October 2015 financing, and (iv) 7,500 ordinary shares represented by 3,750 ADSs issuable upon exercise of placement agent warrants issued in connection with our January 2017 financing.
|
(36)
|
Represents 7,500 ordinary shares represented by 3,750 ADSs issuable upon exercise of placement agent warrants issued in connection with our January 2017 financing.
|
(37)
|
Represents (i) 2,696 ordinary shares represented by 1,348 ADSs issuable upon exercise of placement agent warrants issued in connection with our December 2014 financing, (ii) 6,208 ordinary shares represented by 3,104 ADSs issuable upon exercise of placement agent warrants issued in connection with our September 2015 financing, and (iii) 3,328 ordinary shares represented by 1,664 ADSs issuable upon exercise of placement agent warrants issued in connection with our October 2015 financing.
|
(38)
|
Represents (i) 898 ordinary shares represented by 449 ADSs issuable upon exercise of placement agent warrants issued in connection with our December 2014 financing, (ii) 2,068 ordinary shares represented by 1,034 ADSs issuable upon exercise of placement agent warrants issued in connection with our September 2015 financing, (iii) 1,110 ordinary shares represented by 555 ADSs issuable upon exercise of placement agent warrants issued in connection with our October 2015 financing, (iv) 2,500 ordinary shares represented by 1,250 ADSs issuable upon exercise of placement agent warrants issued in connection with our January 2017 financing, and (v) 3,334 ordinary shares represented by 1,667 ADSs issuable upon exercise of placement agent warrants issued in our March 2018 financing.
|
(39)
|
Represents 2,500 ordinary shares represented by 1,250 ADSs issuable upon exercise of placement agent warrants issued in connection with our January 2017 financing.
|
(40)
|
Represents (i) 898 ordinary shares represented by 449 ADSs issuable upon exercise of placement agent warrants issued in connection with our December 2014 financing, (ii) 2,068 ordinary shares represented by 1,034 ADSs issuable upon exercise of placement agent warrants issued in connection with our September 2015 financing, (iii) 1,110 ordinary shares represented by 555 ADSs issuable upon exercise of placement agent warrants issued in connection with our October 2015 financing, and (iv) 3,334 ordinary shares represented by 1,667 ADSs issuable upon exercise of placement agent warrants issued in our March 2018 financing.
|
DESCRIPTION
OF OUR ORDINARY SHARES
The
following description of our share capital summarizes certain provisions of our Articles of Association. Such summaries do not
purport to be complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of our Articles
of Association, a copy of which has been filed as an exhibit to the registration statement of which this prospectus forms a part.
Ordinary
Shares
At
March 28, 2018, our authorized share capital consists of 80,000,000 ordinary shares, par value NIS 0.25 per share, of which
39,962,290 are issued and outstanding.
All
of our outstanding ordinary shares will be validly issued, fully paid and non-assessable. Our ordinary shares are not
redeemable and do not have any preemptive rights. Pursuant to Israeli securities laws, a company whose shares are traded
on the TASE may not have more than one class of shares (subject to an exception which is not applicable to us), and all outstanding
shares must be validly issued and fully paid. Shares and convertible securities may not be issued without the consent
of the Israeli Securities Authority and all outstanding shares must be registered for trading on the TASE.
We
effected a 1-for-25 reverse share split with respect to our ordinary shares, options and warrants on May 12, 2013. Unless indicated
otherwise by the context, all ordinary share, option, warrant and per share amounts as well as stock prices appearing in this
prospectus have been adjusted to give retroactive effect to the share split for all periods presented.
Registration
Number and Purposes of the Company
Our
number with the Israeli Registrar of Companies is 512022153. Our purpose is set forth in Section 3 of our Articles of Association
and includes every lawful purpose.
Our
ordinary shares that are fully paid for are issued in registered form and may be freely transferred under our Articles of Association,
unless the transfer is restricted or prohibited by applicable law or the rules of a stock exchange on which the shares are traded.
The ownership or voting of our ordinary shares by non-residents of Israel is not restricted in any way by our Articles of Association
or the laws of the State of Israel, except for ownership by nationals of some countries that are, or have been, in a state of
war with Israel.
Pursuant
to the Israeli Companies Law and our Articles of Association, our board of directors may exercise all powers and take all actions
that are not required under law or under our Articles of Association to be exercised or taken by our shareholders, including the
power to borrow money for company purposes.
Our
Articles of Association enable us to increase or reduce our share capital. Any such changes are subject to the provisions of the
Israeli Companies Law and must be approved by a resolution duly passed by our shareholders at a general or special meeting by
voting on such change in the capital. In addition, transactions that have the effect of reducing capital, such as the declaration
and payment of dividends in the absence of sufficient retained earnings and profits and an issuance of shares for less than their
nominal value, require a resolution of our board of directors and court approval.
Dividends
We
may declare a dividend to be paid to the holders of our ordinary shares in proportion to their respective shareholdings. Under
the Israeli Companies Law, dividend distributions are determined by the board of directors and do not require the approval of
the shareholders of a company unless such company’s articles of association provide otherwise. Our Articles of Association
do not require shareholder approval of a dividend distribution and provide that dividend distributions may be determined by our
board of directors.
Pursuant
to the Israeli Companies Law, we may only distribute dividends from our profits accrued over the previous two years, as defined
in the Israeli Companies Law, according to our then last reviewed or audited financial reports, or we may distribute dividends
with court approval. In each case, we are only permitted to pay a dividend if there is no reasonable concern that payment of the
dividend will prevent us from satisfying our existing and foreseeable obligations as they become due.
Election
of Directors
Our
ordinary shares do not have cumulative voting rights in the election of directors. As a result, the holders of a majority of the
voting power represented at a shareholders meeting have the power to elect all of our directors, subject to the special approval
requirements for external directors described under “Item 6. Directors, Senior Management and Employees — Board Practices
— External Directors.” of our Form 20-F for the year ended December 31, 2017.
Pursuant
to our Articles of Association, other than the external directors, for whom special election requirements apply under the Israeli
Companies Law, our directors are elected at a general or special meeting of our shareholders and serve on the board of directors
until the end of the next general meeting or they are removed by the majority of our shareholders at a general or special meeting
of our shareholders or upon the occurrence of certain events, in accordance with the Israeli Companies Law and our Articles of
Association. In addition, our Articles of Association allow our board of directors to appoint directors to fill vacancies on the
board of directors to serve until the next general meeting or special meeting, or earlier if required by our Articles of Association
or applicable law. We have held elections for each of our non-external directors at each annual meeting of our shareholders since
our initial public offering in Israel. External directors are elected for an initial term of three years and may be removed from
office pursuant to the terms of the Israeli Companies Law.
Shareholder
Meetings
Under
Israeli Companies Law, we are required to hold an annual general meeting of our shareholders once every calendar year that must
be no later than 15 months after the date of the previous annual general meeting. All meetings other than the annual general meeting
of shareholders are referred to as special meetings. Our board of directors may call special meetings whenever it sees fit, at
such time and place, within or outside of Israel, as it may determine. In addition, the Israeli Companies Law and our Articles
of Association provide that our board of directors is required to convene a special meeting upon the written request of (i) any
two of our directors or one quarter of our board of directors or (ii) one or more shareholders holding, in the aggregate, either
(1) 5% of our outstanding shares and 1% of our outstanding voting power or (2) 5% of our outstanding voting power.
Subject
to the provisions of the Israeli Companies Law and the regulations promulgated thereunder, shareholders entitled to participate
and vote at general meetings are the shareholders of record on a date to be decided by the board of directors, which may be between
four and forty days prior to the date of the meeting. Furthermore, the Israeli Companies Law and our Articles of Association require
that resolutions regarding the following matters must be passed at a general meeting of our shareholders:
|
●
|
amendments
to our Articles of Association;
|
|
|
|
|
●
|
appointment
or termination of our auditors;
|
|
|
|
|
●
|
appointment
of directors and appointment and dismissal of external directors;
|
|
|
|
|
●
|
approval
of acts and transactions requiring general meeting approval pursuant to the Israeli Companies Law;
|
|
|
|
|
●
|
director
compensation, indemnification and change of the principal executive officer;
|
|
|
|
|
●
|
increases
or reductions of our authorized share capital;
|
|
|
|
|
●
|
a
merger; and
|
|
|
|
|
●
|
the
exercise of our Board of Director’s powers by a general meeting, if our board of directors is unable to exercise its
powers and the exercise of any of its powers is required for our proper management.
|
The
Israeli Companies Law requires that a notice of any annual or special shareholders meeting be provided at least 21 days prior
to the meeting and if the agenda of the meeting includes the appointment or removal of directors, the approval of transactions
with office holders or interested or related parties, or an approval of a merger, notice must be provided at least 35 days prior
to the meeting.
The
Israeli Companies Law does not allow shareholders of publicly traded companies to approve corporate matters by written consent.
Consequently, our Articles of Association does not allow shareholders to approve corporate matters by written consent.
Pursuant
to our Articles of Association, holders of our ordinary shares have one vote for each ordinary share held on all matters submitted
to a vote before the shareholders at a general meeting.
Quorum
The
quorum required for our general meetings of shareholders consists of at least two shareholders present in person, by proxy or
written ballot who hold or represent between them at least 25% of the total outstanding voting rights.
A
meeting adjourned for lack of a quorum is adjourned to the same day in the following week at the same time and place or on a later
date if so specified in the summons or notice of the meeting. At the reconvened meeting, any number of our shareholders present
in person or by proxy shall constitute a lawful quorum.
Resolutions
Our
Articles of Association provide that all resolutions of our shareholders require a simple majority vote, unless otherwise required
by applicable law.
Israeli
law provides that a shareholder of a public company may vote in a meeting and in a class meeting by means of a written ballot
in which the shareholder indicates how he or she votes on resolutions relating to the following matters:
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an
appointment or removal of directors;
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an
approval of transactions with office holders or interested or related parties;
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an
approval of a merger or any other matter in respect of which there is a provision in the articles of association providing
that decisions of the general meeting may also be passed by written ballot;
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authorizing
the chairman of the board of directors or his relative to act as our chief executive officer or act with such authority; or
authorize our chief executive officer or his relative to act as the chairman of the board of directors or act with such authority;
and
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other
matters which may be prescribed by Israel’s Minister of Justice.
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The
provision allowing the vote by written ballot does not apply where the voting power of the controlling shareholder is sufficient
to determine the vote. Our Articles of Association provide that our board of directors may prevent voting by means of a written
ballot and this determination is required to be stated in the notice convening the general meeting.
The
Israeli Companies Law provides that a shareholder, in exercising his or her rights and performing his or her obligations toward
the company and its other shareholders, must act in good faith and in a customary manner, and avoid abusing his or her power.
This is required when voting at general meetings on matters such as changes to the articles of association, increasing our registered
capital, mergers and approval of related party transactions. A shareholder also has a general duty to refrain from depriving any
other shareholder of its rights as a shareholder. In addition, any controlling shareholder, any shareholder who knows that its
vote can determine the outcome of a shareholder vote and any shareholder who, under such company’s articles of association,
can appoint or prevent the appointment of an office holder, is required to act with fairness towards the company. The Israeli
Companies Law does not describe the substance of this duty except to state that the remedies generally available upon a breach
of contract will also apply to a breach of the duty to act with fairness, and, to the best of our knowledge, there is no binding
case law that addresses this subject directly.
Under
the Israeli Companies Law, unless provided otherwise in a company’s articles of association, a resolution at a shareholders
meeting requires approval by a simple majority of the voting rights represented at the meeting, in person, by proxy or written
ballot, and voting on the resolution. A resolution for the voluntary winding up of the company requires the approval of holders
of 75% of the voting rights represented at the meeting, in person, by proxy or by written ballot and voting on the resolution.
In
the event of our liquidation, after satisfaction of liabilities to creditors, our assets will be distributed to the holders of
our ordinary shares in proportion to their shareholdings. This right, as well as the right to receive dividends, may be affected
by the grant of preferential dividend or distribution rights to the holders of a class of shares with preferential rights that
may be authorized in the future.
Access
to Corporate Records
Under
the Israeli Companies Law, all shareholders of a company generally have the right to review minutes of our general meetings, its
shareholders register and principal shareholders register, articles of association, financial statements and any document it is
required by law to file publicly with the Israeli Companies Registrar and the Israel Securities Authority. Any of our shareholders
may request access to review any document in our possession that relates to any action or transaction with a related party, interested
party or office holder that requires shareholder approval under the Israeli Companies Law. We may deny a request to review a document
if we determine that the request was not made in good faith, that the document contains a commercial secret or a patent or that
the document’s disclosure may otherwise prejudice our interests.
Acquisitions
under Israeli Law
Full
Tender Offer
A
person wishing to acquire shares of a public Israeli company and who would as a result hold over 90% of the target company’s
issued and outstanding share capital is required by the Israeli Companies Law to make a tender offer to all of our shareholders
for the purchase of all of the issued and outstanding shares of the company. A person wishing to acquire shares of a public Israeli
company and who would as a result hold over 90% of the issued and outstanding share capital of a certain class of shares is required
to make a tender offer to all of the shareholders who hold shares of the same class for the purchase of all of the issued and
outstanding shares of the same class. If the shareholders who do not accept the offer hold less than 5% of the issued and outstanding
share capital of the company or of the applicable class, all of the shares that the acquirer offered to purchase will be transferred
to the acquirer by operation of law (provided that a majority of the offerees that do not have a personal interest in such tender
offer shall have approved the tender offer except that if the total votes to reject the tender offer represent less than 2% of
the company’s issued and outstanding share capital, in the aggregate, approval by a majority of the offerees that do not
have a personal interest in such tender offer is not required to complete the tender offer). However, a shareholder that had its
shares so transferred may petition the court within six months from the date of acceptance of the full tender offer, whether or
not such shareholder agreed to the tender or not, to determine whether the tender offer was for less than fair value and whether
the fair value should be paid as determined by the court unless the acquirer stipulated in the tender offer that a shareholder
that accepts the offer may not seek appraisal rights. If the shareholders who did not accept the tender offer hold 5% or more
of the issued and outstanding share capital of the company or of the applicable class, the acquirer may not acquire shares of
the company that will increase its holdings to more than 90% of our issued and outstanding share capital or of the applicable
class from shareholders who accepted the tender offer.
Special
Tender Offer
The
Israeli Companies Law provides that an acquisition of shares of a public Israeli 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,
unless one of the exemptions in the Israeli Companies Law is met. This rule does not apply if there is already another holder
of at least 25% of the voting rights in the company. Similarly, the Israeli Companies Law provides that an acquisition of shares
in a public company must be made by means of a tender offer if as a result of the acquisition the purchaser would become a holder
of 45% or more of the voting rights in the company, if there is no other shareholder of the company who holds 45% or more of the
voting rights in the company, unless one of the exemptions in the Israeli Companies Law is met.
A
special tender offer must be extended to all shareholders of a company but the offeror is not required to purchase shares representing
more than 5% of the voting power attached to our outstanding shares, regardless of how many shares are tendered by shareholders.
A special tender offer may be consummated only if (i) at least 5% of the voting power attached to our 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.
If
a special tender offer is accepted, then the purchaser or any person or entity controlling it or under common control with the
purchaser or such controlling person or entity may not make a subsequent tender offer for the purchase of shares of the target
company and may not enter into a merger with the target company for a period of one year from the date of the offer, unless the
purchaser or such person or entity undertook to effect such an offer or merger in the initial special tender offer.
Merger
The
Israeli Companies Law permits merger transactions if approved by each party’s board of directors and, unless certain requirements
described under the Israeli Companies Law are met, a majority of each party’s shares voted on the proposed merger at a shareholders’
meeting called with at least 35 days’ prior notice.
For
purposes of the shareholder vote, unless a court rules otherwise, the merger will not be deemed approved if a majority of the
shares represented at the shareholders meeting that are held by parties other than the other party to the merger, or by any person
who holds 25% or more of the outstanding shares or the right to appoint 25% or more of the directors of the other party, vote
against the merger. If the transaction would have been approved but for the separate approval of each class or the exclusion of
the votes of certain shareholders as provided above, a court may still approve the merger upon the request of holders of at least
25% of the voting rights of a company, if the court holds that the merger is fair and reasonable, taking into account the value
of the parties to the merger and the consideration offered to the shareholders.
Upon
the request of a creditor of either party to the proposed merger, the court may delay or prevent the merger if it concludes that
there exists a reasonable concern that, as a result of the merger, the surviving company will be unable to satisfy the obligations
of any of the parties to the merger, and may further give instructions to secure the rights of creditors.
In
addition, a merger may not be completed unless at least 50 days have passed from the date that a proposal for approval of the
merger was filed by each party with the Israeli Registrar of Companies and 30 days have passed from the date the merger was approved
by the shareholders of each party.
Antitakeover
Measures
The
Israeli Companies Law allows us to create and issue shares having rights different from those attached to our ordinary shares,
including shares providing certain preferred rights, distributions or other matters and shares having preemptive rights. As of
the date of this annual report, we do not have any authorized or issued shares other than our ordinary shares. In the future,
if we do create and issue a class of shares other than ordinary shares, such class of shares, depending on the specific rights
that may be attached to them, may delay or prevent a takeover or otherwise prevent our shareholders from realizing a potential
premium over the market value of their ordinary shares. The authorization of a new class of shares will require an amendment to
our Articles of Association which requires the prior approval of the holders of a majority of our shares at a general meeting.
In addition, the rules and regulations of the TASE also limit the terms permitted with respect to a new class of shares and prohibit
any such new class of shares from having voting rights. Shareholders voting in such meeting will be subject to the restrictions
provided in the Israeli Companies Law as described above.
Borrowing
Powers
Under
the Israeli Companies Law and our amended and restated Articles of Association, our board of directors may exercise all powers
and take all actions that are not required under law or under our amended and restated articles of association to be exercised
or taken by our shareholders or other corporate bodies, including the power to borrow money for company purposes.
Changes
in Capital
Our
amended and restated Articles of Association enable us to increase or reduce our share capital. Any such changes are subject to
the provisions of the Israeli Companies Law and must be approved by a resolution duly passed by our shareholders at a general
meeting by voting on such change in the capital. In addition, transactions that have the effect of reducing capital, such as the
declaration and payment of dividends in the absence of sufficient retained earnings or profits and, in certain circumstances,
an issuance of shares for less than their nominal value, require the approval of both our board of directors and an Israeli court.
DESCRIPTION
OF AMERICAN DEPOSITARY SHARES
The
Bank of New York Mellon, as Depositary, will register and deliver American Depositary Shares, or ADSs. Each ADS will represent
two (2) ordinary shares (or a right to receive two (2) ordinary shares) deposited with the principal Tel Aviv office of Bank Hapoalim,
as custodian for the Depositary. Each ADS will also represent any other securities, cash or other property which may be held by
the Depositary. The Depositary’s corporate trust office at which the ADSs will be administered is located at 101 Barclay
Street, New York, New York 10286. The Bank of New York Mellon’s principal executive office is located at One Wall Street,
New York, New York 10286.
You
may hold ADSs either (i) directly (a) by having an American Depositary Receipt, or an ADR, which is a certificate evidencing a
specific number of ADSs, registered in your name, or (b) by having ADSs registered in your name in the Direct Registration System,
or DRS, or (ii) indirectly by holding a security entitlement in ADSs through your broker or other financial institution. If you
hold ADSs directly, you are a registered ADS holder, or an ADS holder. The description in this section assumes you are an ADS
holder. If you hold the ADSs indirectly, you must rely on the procedures of your broker or other financial institution to assert
the rights of ADS holders described in this section. You should consult with your broker or financial institution to find out
what those procedures are.
The
DRS is a system administered by The Depository Trust Company, or DTC, pursuant to which the Depositary may register the ownership
of uncertificated ADSs, which ownership is confirmed by periodic statements sent by the Depositary to the registered holders of
uncertificated ADSs.
As
an ADS holder, we will not treat you as one of our shareholders and you will not have shareholder rights. Israeli law governs
shareholder rights. The Depositary will be the holder of the shares underlying your ADSs. As a registered holder of ADSs, you
will have ADS holder rights. The Deposit Agreement among us, the Depositary and you, as an ADS holder, and all other persons indirectly
holding ADSs sets out ADS holder rights as well as the rights and obligations of the Depositary. New York law governs the Deposit
Agreement and the ADSs.
The
following is a summary of the material provisions of the Deposit Agreement. For more complete information, you should read the
entire Deposit Agreement and the form of ADS. Directions on how to obtain copies of those documents are provided under “Where
You Can Find More Information”.
Dividends
and Other Distributions
How
will you receive dividends and other distributions on the shares?
The
Depositary has agreed to pay to ADS holders the cash dividends or other distributions it or the custodian receives on shares or
other deposited securities, after deducting its fees and expenses. You will receive these distributions in proportion to the number
of ordinary shares your ADSs represent.
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Cash
.
The Depositary will convert any cash dividend or other cash distribution we pay on the shares into U.S. dollars, if it can
do so on a reasonable basis and can transfer the U.S. dollars to the United States. If that is not possible or if any government
approval is needed and cannot be obtained, the Deposit Agreement allows the Depositary to distribute the foreign currency
only to those ADS holders to whom it is possible to do so. It will hold the foreign currency it cannot convert for the account
of the ADS holders who have not been paid. It will not invest the foreign currency and it will not be liable for any interest.
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Before
making a distribution, any withholding taxes, or other governmental charges that must be paid will be deducted. It will distribute
only whole U.S. dollars and cents and will round fractional cents to the nearest whole cent.
If the exchange rates fluctuate
during a time when the Depositary cannot convert the foreign currency, you may lose some or all of the value of the distribution.
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Shares.
The Depositary may distribute additional ADSs representing any shares we distribute as a dividend or free distribution.
The Depositary will only distribute whole ADSs. It will sell shares which would require it to deliver a fractional ADS and
distribute the net proceeds in the same way as it does with cash. If the Depositary does not distribute additional ADSs, the
outstanding ADSs will also represent the new shares. The Depositary may sell a portion of the distributed shares sufficient
to pay its fees and expenses in connection with that distribution.
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Rights
to purchase additional shares.
If we offer holders of our securities any rights to subscribe for additional shares or
any other rights, the Depositary may make these rights available to ADS holders. If the Depositary decides it is not legal
and practical to make the rights available but that it is practical to sell the rights, the Depositary will use reasonable
efforts to sell the rights and distribute the proceeds in the same way as it does with cash. The Depositary will allow rights
that are not distributed or sold to lapse.
In that case, you will receive no value for them.
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If
the Depositary makes rights available to ADS holders, it will exercise the rights and purchase the shares on your behalf.
The Depositary will then deposit the shares and deliver ADSs to the persons entitled to them. It will only exercise rights
if you pay it the exercise price and any other charges the rights require you to pay.
U.S.
securities laws may restrict transfers and cancellation of the ADSs represented by shares purchased upon exercise of rights.
For example, you may not be able to trade these ADSs freely in the United States. In this case, the Depositary may deliver
restricted Depositary shares that have the same terms as the ADSs described in this section except for changes needed
to put the necessary restrictions in place.
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Other
Distributions.
The Depositary will send to ADS holders anything else we distribute on deposited securities by any means
it thinks is legal, fair and practicable. If it cannot make the distribution in that way, the Depositary has a choice. It
may decide to sell what we distributed and distribute the net proceeds, in the same way as it does with cash. Or, it may decide
to hold what we distributed, in which case ADSs will also represent the newly distributed property. However, the Depositary
is not required to distribute any securities (other than ADSs) to ADS holders unless it receives satisfactory evidence from
us that it is legal to make that distribution. The Depositary may sell a portion of the distributed securities or property
sufficient to pay its fees and expenses in connection with that distribution.
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Depositary is not responsible if it decides that it is unlawful or impracticable to make a distribution available to any ADS holders.
We
have no obligation to register ADSs, shares, rights or other securities under the Securities Act other than in accordance with
a registration rights agreement entered into in connection with our March 2014 private placement. We also have no obligation to take
any other action to permit the distribution of ADSs, shares, rights or anything else to ADS holders.
This means that you
may not receive the distributions we make on our shares or any value for them if it is illegal or impracticable for us to make
them available to you.
Deposit,
Withdrawal and Cancellation
How
are ADSs issued?
The
Depositary will deliver ADSs if you or your broker deposit shares or evidence of rights to receive shares with the custodian.
Upon payment of its fees and expenses and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees, the Depositary
will register the appropriate number of ADSs in the names you request and will deliver the ADSs to or upon the order of the person
or persons that made the deposit.
How
can ADS holders withdraw the deposited securities?
You
may surrender your ADSs at the Depositary’s corporate trust office. Upon payment of its fees and expenses and of any taxes
or charges, such as stamp taxes or stock transfer taxes or fees, the Depositary will deliver the shares and any other deposited
securities underlying the ADSs to the ADS holder or a person the ADS holder designates at the office of the custodian. Or, at
your request, risk and expense, the Depositary will deliver the deposited securities at its corporate trust office, if feasible.
How
do ADS holders interchange between certificated ADSs and uncertificated ADSs?
You
may surrender your ADR to the Depositary for the purpose of exchanging your ADR for uncertificated ADSs. The Depositary will cancel
that ADR and will send to the ADS holder a statement confirming that the ADS holder is the registered holder of uncertificated
ADSs. Alternatively, upon receipt by the Depositary of a proper instruction from a registered holder of uncertificated ADSs requesting
the exchange of uncertificated ADSs for certificated ADSs, the Depositary will execute and deliver to the ADS holder an ADR evidencing
those ADSs.
Voting
Rights
How
do you vote?
ADS
holders may instruct the Depositary to vote the number of deposited shares their ADSs represent. The Depositary will notify ADS
holders of shareholders’ meetings and arrange to deliver our voting materials to them if we ask it to. Those materials will
describe the matters to be voted on and explain how ADS holders may instruct the Depositary how to vote. For instructions to be
valid, they must reach the Depositary by a date set by the Depositary.
Otherwise, you will not be able to exercise your
right to vote unless you withdraw the shares. To do so, however, you would need to know about the meeting sufficiently in advance
to withdraw the shares.
The
Depositary will try, as far as practical, subject to the laws of Israel and of our Articles of Association or similar documents,
to vote or to have its agents vote the shares or other deposited securities as instructed by ADS holders. The Depositary will
only vote or attempt to vote as instructed.
We
cannot assure you that you will receive the voting materials in time to ensure that you can instruct the Depositary to vote your
shares. In addition, the Depositary and its agents are not responsible for failing to carry out voting instructions or for the
manner of carrying out voting instructions.
This means that you may not be able to exercise your right to vote and there
may be nothing you can do if your shares are not voted as you requested.
In
order to give you a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to deposited
securities, if we request the Depositary to act, we agreed under the Deposit Agreement to give the Depositary notice of any such
meeting and details concerning the matters to be voted upon not less than 45 days in advance of the meeting date.
Fees
and Expenses
Persons
depositing or withdrawing shares or ADS holders must pay:
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For
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$5.00
(or less) per 100 ADSs (or portion of 100 ADSs)
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Issuance
of ADSs, including issuances resulting from a distribution of shares or rights or other property
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Cancellation
of ADSs for the purpose of withdrawal, including if the Deposit Agreement terminates
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$.05
(or less) per ADS
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Any
cash distribution to ADS holders
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A
fee equivalent to the fee that would be payable if securities distributed to you had been shares and the shares had been deposited
for issuance of ADSs
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Distribution
of securities distributed to holders of deposited securities which are distributed by the Depositary to ADS holders
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$.05
(or less) per ADSs per calendar year
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Depositary
services
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Registration
or transfer fees
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Transfer
and registration of shares on our share register to or from the name of the Depositary or its agent when you deposit or withdraw
shares
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Expenses
of the Depositary
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Cable,
telex and facsimile transmissions (when expressly provided in the Deposit Agreement)
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Converting
foreign currency to U.S. dollars
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Taxes
and other governmental charges the Depositary or the custodian have to pay on any ADS or share underlying an ADS, for example,
stock transfer taxes, stamp duty or withholding taxes
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As
necessary
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Any
charges incurred by the Depositary or its agents for servicing the deposited securities
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As
necessary
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The
Depositary collects its fees for delivery and surrender of ADSs directly from investors depositing shares or surrendering ADSs
for the purpose of withdrawal or from intermediaries acting for them. The Depositary collects fees for making distributions to
investors by deducting those fees from the amounts distributed or by selling a portion of distributable property to pay the fees.
The Depositary may collect its annual fee for depositary services by deduction from cash distributions, by directly billing investors
or by charging the book-entry system accounts of participants acting for them. The Depositary may generally refuse to provide
fee-attracting services until its fees for those services are paid.
From
time to time, the Depositary may make payments to us to reimburse us for expenses and/or share revenue with us from the fees collected
from ADS holders, or waive fees and expenses for services provided, generally relating to costs and expenses arising out of the
establishment and maintenance of the ADS program. In performing its duties under the Deposit Agreement, the Depositary may use
brokers, dealers or other service providers that are affiliates of the Depositary and that may earn or share fees or commissions.
Payment
of Taxes
You
will be responsible for any taxes or other governmental charges payable on your ADSs or on the deposited securities represented
by any of your ADSs. The Depositary may refuse to register any transfer of your ADSs or allow you to withdraw the deposited securities
represented by your ADSs until such taxes or other charges are paid. It may apply payments owed to you or sell deposited securities
represented by your ADSs to pay any taxes owed and you will remain liable for any deficiency. If the Depositary sells deposited
securities, it will, if appropriate, reduce the number of ADSs to reflect the sale and pay to ADS holders any proceeds, or send
to ADS holders any property, remaining after it has paid the taxes.
Reclassifications,
Recapitalizations and Mergers
If
we:
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● Change
the nominal or par value of our shares
● Reclassify,
split up or consolidate any of the deposited securities
● Distribute
securities on the shares that are not distributed to you
● Recapitalize,
reorganize, merge, liquidate, sell all or substantially all of our assets, or take any similar action
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The
cash, shares or other securities received by the Depositary will become deposited securities. Each ADS will automatically
represent its equal share of the new deposited securities.
The
Depositary may, and will if we ask it to, distribute some or all of the cash, shares or other securities it received.
It may also deliver new ADRs or ask you to surrender your outstanding ADRs in exchange for new ADRs identifying the new
deposited securities.
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Amendment
and Termination
How
may the Deposit Agreement be amended?
We
may agree with the Depositary to amend the Deposit Agreement and the ADRs without your consent for any reason. If an amendment
adds or increases fees or charges, except for taxes and other governmental charges or expenses of the Depositary for registration
fees, facsimile costs, delivery charges or similar items, or prejudices a substantial right of ADS holders, it will not become
effective for outstanding ADSs until 30 days after the Depositary notifies ADS holders of the amendment.
At the time an
amendment becomes effective, you are considered, by continuing to hold your ADSs, to agree to the amendment and to be bound by
the ADRs and the Deposit Agreement, as amended
.
How
may the Deposit Agreement be terminated?
The
Depositary will terminate the Deposit Agreement at our direction by mailing notice of termination to the ADS holders then outstanding
at least 30 days prior to the date fixed in such notice for such termination. The Depositary may also terminate the Deposit Agreement
by mailing notice of termination to us and the ADS holders if 60 days have passed since the Depositary told us it wants to resign
but a successor depositary has not been appointed and accepted its appointment.
After
termination, the Depositary and its agents will do the following under the Deposit Agreement, but nothing else: collect distributions
on the deposited securities, sell rights and other property, and deliver shares and other deposited securities upon cancellation
of ADSs. Four months after termination, the Depositary may sell any remaining deposited securities by public or private sale.
After that, the Depositary will hold the money it received on the sale, as well as any other cash it is holding under the Deposit
Agreement for the
pro rata
benefit of the ADS holders that have not surrendered their ADSs. It will not invest
the money and has no liability for interest. The Depositary’s only obligations will be to account for the money and other
cash. After termination, our only obligations will be to indemnify the Depositary and to pay fees and expenses of the Depositary
that we agreed to pay.
Limitations
on Obligations and Liability
Limits
on our Obligations and the Obligations of the Depositary; Limits on Liability to ADS Holders
The
Deposit Agreement expressly limits our obligations and the obligations of the Depositary. It also limits our liability and the
liability of the Depositary. We and the Depositary:
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are
only obligated to take the actions specifically set forth in the Deposit Agreement without negligence or bad faith;
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are
not liable if we are or it is prevented or delayed by law or circumstances beyond our control from performing our or its obligations
under the Deposit Agreement;
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are
not liable if we or it exercises discretion permitted under the Deposit Agreement;
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are
not liable for the inability of any holder of ADSs to benefit from any distribution on deposited securities that is not made
available to holders of ADSs under the terms of the Deposit Agreement, or for any special, consequential or punitive damages
for any breach of the terms of the Deposit Agreement;
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have
no obligation to become involved in a lawsuit or other proceeding related to the ADSs or the Deposit Agreement on your behalf
or on behalf of any other person; and
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may
rely upon any documents we believe or it believes in good faith to be genuine and to have been signed or presented by the
proper person.
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In
the Deposit Agreement, we and the Depositary agree to indemnify each other under certain circumstances.
Requirements
for Depositary Actions
Before
the Depositary will deliver or register a transfer of an ADS, make a distribution on an ADS, or permit withdrawal of shares, the
Depositary may require:
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payment
of stock transfer or other taxes or other governmental charges and transfer or registration fees charged by third parties
for the transfer of any shares or other deposited securities;
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satisfactory
proof of the identity and genuineness of any signature or other information it deems necessary; and
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compliance
with regulations it may establish, from time to time, consistent with the Deposit Agreement, including presentation of transfer
documents.
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The
Depositary may refuse to deliver ADSs or register transfers of ADSs generally when the transfer books of the Depositary or our
transfer books are closed or at any time if the Depositary or we think it advisable to do so.
Your
Right to Receive the Shares Underlying your ADSs
ADS
holders have the right to cancel their ADSs and withdraw the underlying shares at any time except:
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when
temporary delays arise because: (i) the Depositary has closed its transfer books or we have closed our transfer books; (ii)
the transfer of shares is blocked to permit voting at a shareholders’ meeting; or (iii) we are paying a dividend on
our shares;
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when
you owe money to pay fees, taxes and similar charges; or
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when
it is necessary to prohibit withdrawals in order to comply with any laws or governmental regulations that apply to ADSs or
to the withdrawal of shares or other deposited securities.
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This
right of withdrawal may not be limited by any other provision of the Deposit Agreement.
Pre-release
of ADSs
Subject
to the provisions of the Deposit Agreement, the Depositary may issue ADSs before deposit of the underlying shares. This is called
a pre-release of ADSs. The Depositary may also deliver shares prior to the receipt and cancellation of pre-released ADSs even
if the ADSs are cancelled before the pre-release transaction has been closed out. A pre-release is closed out as soon as the underlying
shares are delivered to the Depositary. The Depositary may receive ADSs instead of shares to close out a pre-release. The Depositary
may pre-release ADSs only under the following conditions:
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before
or at the time of the pre-release, the person to whom the pre-release is being made must represent to the Depositary in writing
that it or its customer, as the case may be, (i) owns the shares or ADSs to be remitted, (ii) will assign all beneficial rights,
title and interest in the ADSs or shares to the Depositary and for the benefit of the ADS holders, and (iii) will not take
any action with respect to the ADSs or shares that is inconsistent with the assignment of beneficial ownership (including,
without the consent of the Depositary, disposing of the ADSs or shares) other than in satisfaction of the pre-release;
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the
pre-release must be fully collateralized with cash or collateral that the Depositary considers appropriate; and
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the
Depositary must be able to close out the pre-release on not more than five business days’ notice.
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The
pre-release will be subject to whatever indemnities and credit regulations that the Depositary considers appropriate. In addition,
the Depositary will limit the number of ADSs that may be outstanding at any time as a result of pre-release, although the Depositary
may disregard the limit from time to time, if it thinks it is appropriate to do so. At our instruction, a pre-release may be discontinued
entirely.
Direct
Registration System
In
the Deposit Agreement, all parties to the Deposit Agreement acknowledge that the DRS and Profile Modification System, or Profile,
will apply to uncertificated ADSs upon acceptance thereof to DRS by DTC. DRS is the system administered by DTC under which the
Depositary may register the ownership of uncertificated ADSs, which ownership will be evidenced by periodic statements sent by
the Depositary to the registered holders of uncertificated ADSs. Profile is a required feature of DRS that allows a DTC participant,
claiming to act on behalf of a registered holder of ADSs, to direct the Depositary to register a transfer of those ADSs to DTC
or its nominee and to deliver those ADSs to the DTC account of that DTC participant without receipt by the Depositary of prior
authorization from the ADS holder to register that transfer.
In
connection with and in accordance with the arrangements and procedures relating to DRS/Profile, the parties to the Deposit Agreement
understand that the Depositary will not determine whether the DTC participant that is claiming to be acting on behalf of an ADS
holder in requesting registration of transfer and delivery described in the paragraph above has the actual authority to act on
behalf of the ADS holder (notwithstanding any requirements under the Uniform Commercial Code). In the Deposit Agreement, the parties
agree that the Depositary’s reliance on and compliance with instructions received by the Depositary through the DRS/Profile
and in accordance with the Deposit Agreement will not constitute negligence or bad faith on the part of the Depositary.
Shareholder
Communications; Inspection of Register ADS Holders
The
Depositary will make available for your inspection at its office all communications that it receives from us as a holder of deposited
securities that we make generally available to holders of deposited securities. The Depositary will send you copies of those communications
if we ask it to. You have a right to inspect the register of holders of ADSs, but not for the purpose of contacting those holders
about a matter unrelated to our business or the ADSs.
Disclosure
of Beneficial Ownership
We
may from time to time request that ADS holders provide information as to the capacity in which they hold ADSs or a beneficial
interest in such ADSs and regarding the identity of any other persons then or previously having a beneficial interest in ADSs,
and the nature of such interest and various other matters. ADS holders agree to provide such information reasonably requested
by us pursuant to the Deposit Agreement. The Depositary agrees to comply with reasonable written instructions received from time
to time from us requesting that the Depositary forward any such written requests to the Owners and to forward to us any such responses
to such requests received by the Depositary.
Each
ADS holder agrees to comply with any applicable provision of Israeli law with regard to the notification to us of the holding
or proposed holding of certain interests in the underlying ordinary shares and the obtaining of certain consents, to the same
extent as if such ADS holder were a registered holder or beneficial owner of the underlying ordinary shares. The Depositary is
not required to take any action with respect to such compliance on behalf of any ADS holder, including the provision of the notifications
described below.
As
of the date of the Deposit Agreement, under Israeli law, persons who hold a direct or indirect interest in 5% or more of the voting
securities of us (including persons who hold such an interest through the holding of ADSs) are required to give written notice
of their interest and any subsequent changes in their interest to us within the timeframes set forth in Israeli law. The foregoing
is a summary of the relevant provision of Israeli law and does not purport to be a complete review of this or other provisions
that may be applicable to ADS holders. We undertake no obligation to update this summary in the future.
PLAN
OF DISTRIBUTION
We
are registering the ordinary shares represented by ADSs issuable upon exercise of the warrants and placement agent warrants issued
in our January 2017 private placement to permit the resale of these ordinary shares represented by ADSs by the holders of these
warrants from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling
shareholders of the ordinary shares represented by ADSs other than proceeds from the cash exercise of the warrants and placement
agent warrants. We will bear all fees and expenses incident to our obligation to register the ordinary shares represented by ADSs.
The
selling shareholders may sell all or a portion of the ordinary shares represented by ADSs beneficially owned by them and offered
hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the ordinary shares represented
by ADSs are sold through underwriters or broker-dealers, the selling shareholders will be responsible for underwriting discounts
or commissions or agent's commissions. The ordinary shares represented by ADSs may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated
prices. These sales may be effected in transactions, which may involve crosses or block transactions,
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on
any national securities exchange or quotation service on which the securities may be
listed or quoted at the time of sale;
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in the over-the-counter market;
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in transactions otherwise than on these exchanges or
systems or in the over-the-counter market;
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through
the writing of options, whether such options are listed on an options exchange or otherwise;
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ordinary brokerage transactions and transactions in
which the broker-dealer solicits purchasers;
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block
trades in which the broker-dealer will attempt to sell the shares as agent but may position
and resell a portion of the block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and resale
by the broker-dealer for its account;
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an exchange distribution in accordance with the rules
of the applicable exchange;
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privately negotiated transactions;
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short sales;
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sales pursuant to Rule 144;
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broker-dealers
may agree with the selling security holders to sell a specified number of such shares
at a stipulated price per share;
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a combination of any such methods of sale; and
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any other method permitted pursuant to applicable law.
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If
the selling shareholders effect such transactions by selling ordinary shares represented by ADSs to or through underwriters, broker-dealers
or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions
from the selling shareholders or commissions from purchasers of the ordinary shares represented by ADSs for whom they may act
as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers
or agents may be in excess of those customary in the types of transactions involved). In connection with sales of ordinary shares
represented by ADSs or otherwise, the selling shareholders may enter into hedging transactions with broker-dealers, which may
in turn engage in short sales of the ordinary shares represented by ADSs in the course of hedging in positions they assume. The
selling shareholders may also sell ordinary shares represented by ADSs short and deliver ordinary shares represented by ADSs covered
by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling
shareholders may also loan or pledge ordinary shares represented by ADSs to broker-dealers that in turn may sell such shares.
The
selling shareholders may pledge or grant a security interest in some or all of the warrants, placement agent warrants or ADSs
owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer
and sell the ordinary shares represented by ADSs from time to time pursuant to this prospectus or any amendment to this prospectus
under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933, as amended, amending, if necessary, the list
of selling shareholders to include the pledgee, transferee or other successors in interest as selling shareholders under this
prospectus. The selling shareholders also may transfer and donate the ordinary shares represented by ADSs in other circumstances
in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes
of this prospectus.
The
selling shareholders and any broker-dealer participating in the distribution of the ordinary shares represented by ADSs may be
deemed to be "underwriters" within the meaning of the Securities Act, and any commission paid, or any discounts or concessions
allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the
time a particular offering of the ordinary shares represented by ADSs is made, a prospectus supplement, if required, will be distributed
which will set forth the aggregate amount of ordinary shares represented by ADSs being offered and the terms of the offering,
including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation
from the selling shareholders and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.
Under
the securities laws of some states ordinary shares represented by ADSs may be sold in such states only through registered or licensed
brokers or dealers. In addition, in some states ordinary shares represented by ADSs may not be sold unless such ordinary shares
have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is
complied with.
There
can be no assurance that any selling shareholder will sell any or all of the ordinary shares represented by ADSs registered pursuant
to the registration statement, of which this prospectus forms a part.
The
selling shareholders and any other person participating in such distribution will be subject to applicable provisions of the Exchange
Act, and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit
the timing of purchases and sales of any of the ordinary shares represented by ADSs by the selling shareholders and any other
participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the ordinary shares
represented by ADSs to engage in market-making activities with respect to the ordinary shares represented by ADSs. All of the
foregoing may affect the marketability of the ordinary shares represented by ADSs and the ability of any person or entity to engage
in market-making activities with respect to the ordinary shares represented by ADSs.
We
will pay all expenses of the registration of the ordinary shares represented by ADSs, estimated to be $50,000 in total, including,
without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or "blue
sky" laws; provided, however, that a selling shareholder will pay all underwriting discounts and selling commissions, if
any.
Once
sold under the registration statement, of which this prospectus forms a part, the ordinary shares represented by ADSs will be
freely tradable in the hands of persons other than our affiliates.
LEGAL
MATTERS
Doron
Tikotzky Kantor Gutman & Amit Gross, Ramat Gan, Israel, has passed upon certain legal matters regarding the securities offered
hereby under Israeli law and McDermott Will & Emery LLP, New York, New York, has passed upon certain legal matters regarding
the securities offered hereby under U.S. federal securities law.
EXPERTS
The
consolidated financial statements of Can-fite BioPharma Ltd. and its subsidiaries as of December 31, 2017 and 2016 and for each
of the three years in the period ended December 31, 2017 incorporated by reference in this prospectus have been audited by Kost,
Forer, Gabbay & Kasierer, a member of Ernst &Young Global, an independent registered public accounting firm, as set forth
in their report thereon, included therein, and incorporated herein by reference in reliance upon such report given on the authority
of such firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed with the SEC a registration statement on Form F-1, including amendments and relevant exhibits and schedules, under
the Securities Act covering the ordinary shares represented by ADSs to be sold in this offering. This prospectus, which constitutes
a part of the registration statement, summarizes material provisions of contracts and other documents that we refer to in the
prospectus. Since this prospectus does not contain all of the information contained in the registration statement, you should
read the registration statement and its exhibits and schedules for further information with respect to us and our ordinary shares
and the ADSs. You may review and copy the registration statement, reports and other information we file at the SEC's public reference
room at 100 F Street, N.E., Washington, D.C. 20549. You may also request copies of these documents upon payment of a duplicating
fee by writing to the SEC. For further information on the public reference facility, please call the SEC at 1-800-SEC-0330. Our
SEC filings, including the registration statement, are also available to you on the SEC's Web site at http://www.sec.gov.
In
addition, since our ordinary shares are traded on the TASE, in the past we filed Hebrew language periodic and immediate reports
with, and furnished information to, the TASE and the Israel Securities Authority, or the ISA, as required under Chapter Six of
the Israel Securities Law, 1968. On March 31, 2014, we transitioned solely to U.S. reporting standards in accordance with an applicable
exemption under the Israel Securities Law. Copies of our SEC filings and submissions are submitted to the Israeli Securities Authority
and TASE. Such copies can be retrieved electronically through the MAGNA distribution site of the Israeli Securities Authority
(www.magna.isa.gov.il) and the TASE website (maya.tase.co.il).
We
are subject to the information reporting requirements of the Exchange Act that are applicable to foreign private issuers, and
under those requirements we file reports with the SEC. Those other reports or other information may be inspected without charge
at the locations described above. As a foreign private issuer, we are exempt from the rules under the Exchange Act related to
the furnishing and content of proxy statements, and our officers, directors and principal shareholders are exempt from the reporting
and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we are not required under
the Exchange Act to file annual, quarterly and current reports and financial statements with the SEC as frequently or as promptly
as United States companies whose securities are registered under the Exchange Act. However, we file with the SEC, within four
months after the end of each fiscal year, or such applicable time as required by the SEC, an annual report on Form 20-F containing
financial statements audited by an independent registered public accounting firm, and submit to the SEC, on Form 6-K, unaudited
quarterly financial information for the first three quarters of each fiscal year within 60 days after the end of each such quarter,
or such applicable time as required by the SEC.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We
are allowed to incorporate by reference the information we file with the SEC, which means that we can disclose important information
to you by referring to those documents. The information incorporated by reference is considered to be part of this prospectus.
We incorporate by reference in this prospectus the documents listed below:
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(1)
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our
Annual Report on Form 20-F for the fiscal year ended December 31, 2017, filed with the SEC on March 28, 2018; and
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(2)
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the
description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on November 15, 2013,
including any amendments and reports filed for the purpose of updating such description.
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The
information relating to us contained in this prospectus does not purport to be comprehensive and should be read together with
the information contained in the documents incorporated or deemed to be incorporated by reference in this prospectus.
As
you read the above documents, you may find inconsistencies in information from one document to another. If you find inconsistencies
between the documents and this prospectus, you should rely on the statements made in the most recent document. All information
appearing in this prospectus is qualified in its entirety by the information and financial statements, including the notes thereto,
contained in the documents incorporated by reference herein.
We
will provide to each person, including any beneficial owner, to whom this prospectus is delivered, a copy of these filings, at
no cost, upon written or oral request to us at the following address:
Can-Fite
BioPharma Ltd.
10
Bareket Street, Kiryat Matalon
PO
Box 7537
Petach
Tikva, Israel
Tel:
+ 972 3 924-1114
Email:
info@canfite.com
Attention:
Investor Relations
You
also may access the incorporated reports and other documents referenced above on our website at
www.canfite.com
. The
information contained on, or that can be accessed through, our website is not part of this prospectus.
You
should rely only on the information contained or incorporated by reference in this prospectus or a prospectus supplement. We
have not authorized any other person to provide you with different information. If anyone provides you with different
or inconsistent information, you should not rely on it. We are not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus is
accurate only as of the date on the front cover of this prospectus, or such earlier date, that is indicated in this prospectus.
Our business, financial condition, results of operations and prospects may have changed since that date.
INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, 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.
ENFORCEABILITY
OF CIVIL LIABILITIES
We
are incorporated under the laws of the State of Israel. Service of process upon us, our Israeli subsidiaries, our directors and
officers and the Israeli experts, if any, named in this prospectus, substantially 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 substantially
all of our directors, officers and such Israeli experts, if any, are located outside the United States, any judgment obtained
in the United States against us or any of them may be difficult to collect within the United States.
We
have been informed by our legal counsel in Israel that it may also 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
reasoning that Israel is not the most appropriate forum to bring such a claim. In addition, even if an Israeli court agrees to
hear a claim, it may determine that Israeli law and not U.S. law is applicable to the claim. There is little binding case law
in Israel addressing these matters. 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.
Subject
to specified time limitations and legal procedures, under the rules of private international law currently prevailing in Israel,
Israeli courts may enforce a U.S. judgment in a civil matter, including a judgment based upon the civil liability provisions of
the U.S. securities laws, as well as a monetary or compensatory judgment in a non-civil matter, provided that the following conditions
are met:
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subject
to limited exceptions, the judgment is final and non-appealable;
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the
judgment was given by a court competent under the laws of the state of the court and is otherwise enforceable in such state;
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the
judgment was rendered by a court competent under the rules of private international law applicable in Israel;
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the
laws of the state in which the judgment was given provide 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 present his arguments and evidence;
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the
judgment and its enforcement are not contrary to the law, public policy, security or sovereignty of the State of Israel;
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the
judgment was not obtained by fraud and does not conflict with any other valid judgment in the same matter between the same
parties; and
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an
action between the same parties in the same matter was not pending in any Israeli court at the time the lawsuit was instituted
in the U.S. court.
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We
have appointed Vcorp Agent Services, Inc. as our agent to receive service of process in any action against us in any United States
federal or state court arising out of this offering or any purchase or sale of securities in connection with this offering.
If
a foreign judgment is enforced by an Israeli court, it generally will be payable in Israeli currency, which can then be converted
into non-Israeli currency and transferred out of Israel. The usual practice in an action before an Israeli court to recover an
amount in a non-Israeli currency is for the Israeli court to issue a judgment for the equivalent amount in Israeli currency at
the rate of exchange in force on the date of the judgment, but the judgment debtor may make payment in foreign currency. Pending
collection, the amount of the judgment of an Israeli court stated in Israeli currency ordinarily will be linked to the Israeli
consumer price index plus interest at the annual statutory rate set by Israeli regulations prevailing at the time. Judgment creditors
must bear the risk of unfavorable exchange rates.
, 2018
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
6. Indemnification of Directors, Officers and Employees
An
Israeli company may indemnify an office holder in respect of certain liabilities either in advance of an event or following an
event provided that a provision authorizing such indemnification is inserted in its articles of association. Our Articles
of Association contain such a provision. An undertaking provided in advance by an Israeli company to indemnify an office
holder with respect to a financial liability imposed on him or her in favor of another person pursuant to a judgment, settlement
or arbitrator’s award approved by a court must be limited to events which in the opinion of the board of directors can be
foreseen based on the company’s activities when the undertaking to indemnify is given, and to an amount or a criteria determined
by the board of directors as reasonable under the circumstances, and such undertaking must detail the abovementioned events and
amount or criteria.
In
addition, a company may indemnify an office holder against the following liabilities incurred for acts performed as an office
holder:
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reasonable
litigation expenses, including attorneys’ fees, incurred by the office holder as a result of an investigation or proceeding
instituted against him or her by an authority authorized to conduct such investigation or proceeding, provided that (i) no
indictment was filed against such office holder as a result of such investigation or proceeding; and (ii) no financial liability,
such as a criminal penalty, was imposed upon him or her as a substitute for the criminal proceeding as a result of such investigation
or proceeding or, if such financial liability was imposed, it was imposed with respect to an offense that does not require
proof of criminal intent; and
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reasonable
litigation expenses, including attorneys’ fees, incurred by the office holder or imposed by a court in proceedings instituted
against him or her by the company, on its behalf or by a third party or in connection with criminal proceedings in which the
office holder was acquitted or as a result of a conviction for a crime that does not require proof of criminal intent.
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a
financial liability imposed on the office holder in favor of another person pursuant to a judgment, including a compromise
judgment or arbitrator judgment approved by a court.
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An
Israeli company may insure a director or officer against the following liabilities incurred for acts performed as a director or
officer:
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a
breach of duty of care to the company or to a third party, including a breach arising out of the negligent conduct of an office
holder;
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a
breach of duty of loyalty to the company, provided the director or officer or office holder acted in good faith and had a
reasonable basis to believe that the act would not prejudice the interests of the company; and
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financial
liabilities imposed on the office holder for the benefit of a third party.
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An
Israeli company may not indemnify or insure an office holder against any of the following:
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a
breach of duty of loyalty, except to the extent that the office holder acted in good faith and had a reasonable basis to believe
that the act would not prejudice the company;
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a
breach of duty of care committed intentionally or recklessly, excluding a breach arising out of the negligent conduct of the
office holder;
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an
act or omission committed with intent to derive illegal personal benefit; or
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a
fine, civil fine, monetary sanction or random levied against the office holder.
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Under
the Israeli Companies Law, indemnification and insurance of office holders must be approved by our audit committee and our board
of directors and, in respect of our directors, by our shareholders. Our directors and officers are currently covered
by a directors and officers’ liability insurance policy with respect to specified claims. To date, no claims
for liability have been filed under this policy. In addition, we have entered into indemnification agreements with
each of our directors and officers and the directors and officers of our subsidiaries providing them with indemnification for
liabilities or expenses incurred as a result of acts performed by them in their capacity as our, or our subsidiaries’ directors
and officers. This indemnification is limited both in terms of amount and coverage. In the opinion of the
SEC, however, indemnification of directors and office holders for liabilities arising under the Securities Act is against public
policy and therefore unenforceable.
Item
7. Recent Sales of Unregistered Securities
Set
forth below are the sales of all unregistered securities of ours sold by us within the past three years (i.e., since March 1,
2015, up to the date of this registration statement) which were not registered under the Securities Act:
On
September 21, 2015, we sold to certain institutional investors an aggregate of 2,068,966 ADSs in a registered direct offering
at $4.35 per ADS resulting in gross proceeds of $9,000,002. In addition, we issued to the investors unregistered warrants to purchase
1,034,483 ADSs in a private placement. The warrants may be exercised after six months from issuance for a period of five and a
half years from issuance and have an exercise price of $5.25 per ADS, subject to adjustment as set forth therein. The warrants
may be exercised on a cashless basis if six months after issuance there is no effective registration statement registering the
ADSs underlying the warrants. We paid an aggregate of $792,379 in placement agent fees and expenses and issued unregistered placement
agent warrants to purchase 103,448 ADS on the same terms as the warrants except they have a term of five years.
On
October 15, 2015, we sold to certain institutional investors providing for the issuance of an aggregate of 1,109,196 ADSs in a
registered direct offering at $4.35 per ADS resulting in gross proceeds of approximately $4,825,000. In addition, we issued to
the investors unregistered warrants to purchase 443,678 ADSs in a private placement. The warrants may be exercised after six months
from issuance for a period of five and a half years from issuance and have an exercise price of $5.25 per ADS, subject to adjustment
as set forth therein. The warrants may be exercised on a cashless basis if six months after issuance there is no effective registration
statement registering the ADSs underlying the warrants. We paid an aggregate of $524,621 in placement agent fees and expenses
and issued unregistered placement agent warrants to purchase 55,460 ADS on the same terms as the warrants except they have a term
of five years.
We
entered into an agreement with a service provider dated January 1, 2016 providing for the issuance of restricted 37,000 ADSs.
On
May 26, 2016, we granted to a service provider options to purchase up to 20,000 ordinary shares at an exercise price of NIS 5.376
per share. The options vest quarterly over four years and have a term of ten years.
On
January 24, 2017, we sold to certain institutional investors an aggregate of 2,500,000 ADSs in a registered direct offering at
$2.00 per ADS resulting in gross proceeds of approximately $5,000,000. In addition, we issued to the investors unregistered warrants
to purchase 1,250,000 ADSs in a private placement. The warrants may be exercised after six months from issuance for a period of
five and a half years from issuance and have an exercise price of $2.25 per ADS, subject to adjustment as set forth therein. The
warrants may be exercised on a cashless basis if six months after issuance there is no effective registration statement registering
the ADSs underlying the warrants. We paid an aggregate of $360,000 in placement agent fees and expenses and issued unregistered
placement agent warrants to purchase 125,000 ADS on the same terms as the warrants except they have a term of five years.
In
December 2017, we issued 69,445 ADSs representing 138,890 of our ordinary shares to one of our service providers for its services.
On
March 13, 2018, we sold to certain institutional investors providing for the issuance of an aggregate of 3,333,336 ADSs in a registered
direct offering at $1.50 per ADS resulting in gross proceeds of approximately $5,000,000. In addition, we issued to the investors
unregistered warrants to purchase 2,500,002 ADSs in a private placement. The warrants may be exercised after six months from issuance
for a period of five and a half years from issuance and have an exercise price of $2.00 per ADS, subject to adjustment as set
forth therein. The warrants may be exercised on a cashless basis if six months after issuance there is no effective registration
statement registering the ADSs underlying the warrants. We paid an aggregate of $350,000 in placement agent fees and expenses
and issued unregistered placement agent warrants to purchase 166,667 ADS on the same terms as the warrants except they have a
term of five years.
The
privately placed securities above were offered and sold pursuant to an exemption from the registration requirements under Section
4(a)(2) of the Securities Act and Rule 506 of Regulation D promulgated thereunder since, among other things, the transactions
did not involve a public offering and the securities were acquired for investment purposes only and not with a view to or for
sale in connection with any distribution thereof.
Item
8. Exhibits and Financial Statement Schedules
(a)
Exhibits
See
Exhibit Index.
The
agreements included as exhibits to this registration statement contain representations and warranties by each of the parties to
the applicable agreement. These representations and warranties were made solely for the benefit of the other parties to the applicable
agreement and (i) were not intended to be treated as categorical statements of fact, but rather as a way of allocating the risk
to one of the parties if those statements prove to be inaccurate; (ii) may have been qualified in such agreement by disclosures
that were made to the other party in connection with the negotiation of the applicable agreement; (iii) may apply contract standards
of “materiality” that are different from “materiality” under the applicable securities laws; and (iv)
were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement.
The
Registrant acknowledges that, notwithstanding the inclusion of the foregoing cautionary statements, the registrant is responsible
for considering whether additional specific disclosures of material information regarding material contractual provisions are
required to make the statements in this registration statement not misleading.
(b)
Financial
Statement Schedules
All
schedules have been omitted because either they are not required, are not applicable or the information is otherwise set forth
in the consolidated financial statements and related notes thereto.
Item
9. Undertakings
(a)
|
The
undersigned Registrant hereby undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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|
i.
|
To
include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
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ii.
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To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low
or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the 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;
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iii.
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To include any material information with respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the registration statement;
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(2)
|
That
for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains
a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and this
offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(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.
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(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.
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(5)
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That
for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by
the Registrant pursuant to Rule 424(b)(1) or (4), or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
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(6)
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For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment
that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(b)
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Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6 hereof, or otherwise, the Registrant has been advised
that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form F-1 and has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Petach Tikva, State of Israel on this 29
th
day of March
2018.
|
CAN-FITE
BIOPHARMA LTD.
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By:
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/s/
Pnina Fishhman, Ph.D.
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Name:
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Pnina
Fishman, Ph.D.
|
|
Title:
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Chief
Executive Officer
|
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Name
|
|
Title
|
|
Date
|
|
|
|
|
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/s/
Pnina Fishman
|
|
Chief
Executive Officer and Director
|
|
|
Pnina
Fishman, Ph.D.
|
|
(principal
executive officer)
|
|
March
29, 2018
|
|
|
|
|
|
/s/
Motti Farbstein
|
|
Chief
Operating and Financial Officer
|
|
|
Motti
Farbstein
|
|
(principal
financial officer and principal accounting officer)
|
|
March
29, 2018
|
|
|
|
|
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*
|
|
Chairman
of the Board
|
|
|
Ilan
Cohen, Ph.D.
|
|
|
|
March
29, 2018
|
|
|
|
|
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*
|
|
Director
|
|
|
Guy
Regev
|
|
|
|
March
29, 2018
|
|
|
|
|
|
*
|
|
Director
|
|
|
Abraham
Sartani
|
|
|
|
March
29, 2018
|
|
|
|
|
|
*
|
|
Director
|
|
|
Israel
Shamay
|
|
|
|
March
29, 2018
|
*By:
|
/s/
Motti Farbstein
|
|
|
Motti
Farbstein
|
|
|
Attorney-in-Fact
|
|
SIGNATURE OF AUTHORIZED
REPRESENTATIVE IN THE UNITED STATES
Pursuant
to the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Can-Fite
BioPharma Ltd., has signed this registration statement on March 29, 2018.
|
Vcorp
Services, LLC
|
|
|
|
|
By:
|
/s/
Isaac Muller
|
|
Name:
|
Isaac
Muller
|
|
Title:
|
Authorized
Representative
|
Exhibit No.
|
|
Exhibit
Description
|
|
|
|
3.1
|
|
Amended and Restated Articles of Association of Can-Fite BioPharma Ltd. (1)
|
|
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4.1
|
|
Form
of Amended and Restated Deposit Agreement, by and among Can-Fite BioPharma Ltd., The Bank of New York Mellon and the Owners
and Holders of American Depositary Shares, dated September 11, 2013 (2)
|
|
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4.2
|
|
Form
of Warrant issued by Can-Fite BioPharma Ltd. on January 24, 2017 (3)
|
|
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4.3
|
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Form of Placement Agent Warrant issued by Can-Fite BioPharma Ltd. on January 24, 2017**
|
|
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5.1
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Opinion of Doron, Tikotzky, Kantor, Gutman, Cederboum & Co., Israeli counsel to the Registrant**
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23.1
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Consent of Kost Forer Gabbay & Kasierer*
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|
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23.2
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Consent of Doron, Tikotzky, Kantor, Gutman, Cederboum & Co. (included in Exhibit 5.1)**
|
|
|
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24.1
|
|
Power of Attorney (included in signature page)*
|
**
|
Previously filed.
|
|
|
(1)
|
Incorporated herein by reference to Form F-3
filed with the SEC on January 19, 2016.
|
|
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(2)
|
Incorporated herein by reference to the Registration Statement on Form 8-A filed with the SEC on November 15, 2013.
|
|
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(3)
|
Incorporated herein by reference to the Current Report on Form 6-K filed with the SEC on January 20, 2017.
|
II-7
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