PHGE BiomX Inc

Filed Pursuant to Rule 424(b)(3)

Registration No. 333-278986

 

PROSPECTUS

 

BIOMX INC.

 

 

 

Up to 40 Warrants to Purchase up to 120,148,806 Shares of Common Stock

147,735 Shares of Series X Preferred Stock

386,200,774 Shares of Common Stock Consisting of:

Up to 120,148,806 Shares of Common Stock Issuable Upon Exercise of Warrants

Up to 147,735,000 Shares of Common Stock Issuable Upon Conversion of the Series X Preferred Stock

Up to 118,316,968 Outstanding Shares of Common Stock

Offered by the Selling Securityholders Named Herein

 

This prospectus relates to the resale by the selling securityholders named in this prospectus or their permitted transferees (the “Selling Securityholders”) of (i) up to 40 Warrants (as defined below) to purchase up to 120,148,806 shares of Common Stock (as defined below), (ii) up to 147,735 shares of our series X non-voting convertible preferred stock, par value $0.0001 per share (the “Series X Preferred Stock”) and (iii) up to 386,200,774 shares of common stock, par value $0.0001 per share (“Common Stock”), which consists of:

 

(a)

up to 120,148,806 shares of Common Stock issuable upon the exercise of (w) up to 33 warrants to purchase up to 108,208,500 shares of Common Stock with an exercise price of $0.2311 issued pursuant to the securities purchase agreement dated March 6, 2024 (the “Securities Purchase Agreement,” and the transactions entered into pursuant to the Securities Purchase Agreement, the “PIPE”) by and among BiomX Inc., a Delaware corporation (the “Company”) and the purchasers identified therein (the “PIPE Warrants”), (x) up to four warrants to purchase up to 2,166,497 shares of Common Stock with an exercise price of $5.00 issued pursuant to the merger agreement dated March 6, 2024 (the “Merger Agreement” and the transactions entered into pursuant to the Merger Agreement, the “Merger”) by and among the Company, BTX Merger Sub I, Inc., a Delaware corporation, BTX Merger Sub II, LLC, a Delaware limited liability company and Adaptive Phage Therapeutics, Inc. (“APT”), a Delaware corporation (the “Merger Consideration Warrants”), (y) up to two warrants to purchase up to 9,523,809 shares of Common Stock with an exercise price of $0.2311 issued to Laidlaw & Co. (UK) Ltd. and RBC Capital Markets, LLC (the “Placement Agent Warrants”) and (z) up to one warrant to purchase up to 250,000 shares of Common Stock with an exercise price of $5.00 issued pursuant to the Sixth Amendment to the Lease Agreement dated March 5, 2024 (the “Sixth Amendment to the Lease Agreement”) by and between the APT and Are-708 Quince Orchard, LLC, a Delaware limited liability company (the “Landlord Warrant,” together with the Placement Agent Warrants, the PIPE Warrants and the Merger Consideration Warrants, the “Warrants”);

 

(b)

up to 147,735,000 shares of Common Stock issuable upon the conversion of the Series X Preferred Stock issued pursuant to the Securities Purchase Agreement and the Merger Agreement;

 

	(c)	up to 9,164,968 shares of Common Stock issued pursuant to the Merger Agreement; and
	(d)	Up to 109,152,000 shares of Common Stock issued upon the automatic conversion of 109,152 shares of Series X Preferred Stock at 5:00 PM ET on July 15, 2024.

  

The securities that may be sold by the Selling Securityholders are referred to in this prospectus as the “Offered Securities.” We will not receive any of the proceeds from the sale by the Selling Securityholders of the Offered Securities; however, we will receive the exercise price of the Warrants upon any exercise of the Warrants by payment of cash, with an exercise price of $0.2311, $5.00, $0.2311 and $5.00 per share for the PIPE Warrants, Merger Consideration Warrants, Placement Agent Warrants, and Landlord Warrant respectively. We will bear all costs, expenses and fees in connection with the registration of the Offered Securities, including with regard to compliance with state securities or “blue sky” laws. The Selling Securityholders will bear all commissions and discounts, if any, attributable to their sale of the Offered Securities, except as otherwise expressly set forth under “Plan of Distribution” beginning on page 15 of this prospectus.

 

This prospectus describes the general manner in which the Offered Securities may be offered and sold. If necessary, the specific manner in which the Offered Securities may be offered and sold will be described in one or more supplements to this prospectus. Any prospectus supplement may add, update or change information contained in this prospectus. You should carefully read this prospectus, and any applicable prospectus supplement, as well as the documents incorporated by reference herein or therein before you invest in any of our securities.

 

The Selling Securityholders may offer, sell or distribute Offered Securities publicly or through private transactions. If the Selling Securityholders use underwriters, dealers or agents to sell Offered Securities, we will name them and describe their compensation in a prospectus supplement. The price to the public of those securities and the net proceeds the Selling Securityholders expect to receive from that sale will also be set forth in a prospectus supplement.

 

Our Common Stock is currently quoted on the NYSE American Stock Market (“NYSE American”) under the symbol “PHGE.” On July 15, 2024, the last reported sale price of our Common Stock on NYSE American was $0.34 per share.

  

See “Risk Factors” on page 3 for a discussion of information that should be considered in connection with the ownership of our securities.

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

 

The date of the prospectus is July 15, 2024.

 

TABLE OF CONTENTS

 

PROSPECTUS SUMMARY		1
ABOUT THIS OFFERING		2
RISK FACTORS		3
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS		4
USE OF PROCEEDS		6
SELLING SECURITYHOLDERS		7
PLAN OF DISTRIBUTION		15
DESCRIPTION OF SECURITIES TO BE REGISTERED		18
LEGAL MATTERS		21
EXPERTS		21
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE		22
WHERE YOU CAN FIND ADDITIONAL INFORMATION		23

 

You should rely only on the information contained in this prospectus or a supplement to this prospectus, including the information incorporated herein by reference. Neither we nor the Selling Securityholders have authorized anyone to provide you with different information. This prospectus is not an offer to sell securities, and it is not soliciting an offer to buy securities, in any jurisdiction where the offer or sale is not permitted. You should not assume that the information contained in this prospectus or any supplement to this prospectus, whether or not incorporated herein by reference, is accurate as of any date other than the date indicated in those documents.

 

For investors outside of the United States: Neither we nor any of the Selling Securityholders have done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. You are required to inform yourselves about and to observe any restrictions relating to this offering and the distribution of this prospectus.

 

As used in this prospectus, the terms “we,” “us,” and “our” mean BiomX Inc. and our wholly-owned subsidiaries, unless otherwise indicated.

 

 

RISK FACTORS

 

An investment in our securities carries a significant degree of risk. In addition to the Risk Factor set forth below, You should carefully consider before you decide to purchase our securities the risks, uncertainties and assumptions discussed under the heading “Risk Factors” in our Annual Report on Form 10-K  for the fiscal year ended December 31, 2023, which is incorporated herein by reference, as updated or superseded by the risks and uncertainties described under similar headings in other documents that are filed after the date thereof and incorporated by reference into this prospectus. Any one of these risks and uncertainties has the potential to cause material adverse effects on our business, prospects, financial condition and operating results, which could cause actual results to differ materially from any forward-looking statements expressed by us and a significant decrease in the value of our securities. Refer to “Cautionary Statement Regarding Forward-Looking Statements.”

 

We may not be successful in preventing the material adverse effects that any of these risks and uncertainties may cause. These potential risks and uncertainties may not be a complete list of the risks and uncertainties facing us. There may be additional risks and uncertainties that we are presently unaware of, or presently consider immaterial, that may become material in the future and have a material adverse effect on us. You could lose all or a significant portion of your investment due to any of these risks and uncertainties.

 

Risks Relating to the Series X Preferred Stock and the Warrants

 

There is currently no trading market for the Series X Preferred Stock or the Warrants. If an active trading market does not develop, then preferred stockholders and warrant holders may be unable to sell their Series X Preferred Stock or Warrants, as applicable, at desired times or prices, or at all.

 

No market for the Series X Preferred Stock or the Warrants currently exists. We do not currently intend to apply to list the Series X Preferred Stock or the Warrants on any securities exchange or for quotation on any inter-dealer quotation system. Accordingly, an active market for the Series X Preferred Stock or the Warrants may never develop, and, even if one develops, it may not be maintained. If an active trading market for the Series X Preferred Stock or the Warrants does not develop or is not maintained, then the market price and liquidity of the Series X Preferred Stock and the Warrants will be adversely affected and holders of the Series X Preferred Stock or the Warrants may not be able to sell their Series X Preferred Stock or Warrants at desired times or prices, or at all.

 

The liquidity of the trading market, if any, and future value or trading price, if any, of the Series X Preferred Stock or the Warrants will depend on many factors, including, among other things, the trading price and volatility of our common stock, prevailing interest rates, financial condition, results of operations, business, prospects and credit quality relative to our competitors, the market for similar securities and the overall securities market. Many of these factors are beyond our control. Market volatility could significantly harm the market for the Series X Preferred Stock or the Warrants, regardless of our financial condition, results of operations, business, prospects or credit quality.

 

 

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

 

The statements contained in this prospectus and the documents we incorporate by reference herein or therein that are not historical facts are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 and other federal securities laws.  Such forward-looking statements may be identified by, among other things, the use of forward-looking terminology such as “believes,” “intends,” “plans,” “expects,” “may,” “will,” “should,” “estimates,” or “anticipates” or the negative thereof or other variations thereon or comparable terminology, and similar expressions are intended to identify forward-looking statements.  

 

We remind readers that forward-looking statements are merely predictions and therefore inherently subject to uncertainties and other factors and involve known and unknown risks that could cause the actual results, performance, levels of activity, or our achievements, or industry results, to be materially different from any future results, performance, levels of activity, achievements or industry results, expressed or implied by such forward-looking statements.  Such uncertainties and other factors include, but are not limited to:

  

●

the ability to generate revenues, and raise sufficient financing to meet working capital requirements;

 

●

the integration of the operations of APT into the Company;

 

●

the unpredictable timing and cost associated with our approach to developing product candidates using phage technology;

 

●

political and economic instability, including, without limitation, due to natural disasters or other catastrophic events, such as the Russian invasion of Ukraine and world sanctions on Russia, Belarus, and related parties, terrorist attacks, hurricanes, fire, floods, pollution and earthquakes;

 

●

obtaining U.S. Food and Drug Administration, or FDA, acceptance of any non-U.S. clinical trials of product candidates;

 

●

our ability to enroll patients in clinical trials and achieve anticipated development milestones when expected;

 

●

the ability to pursue and effectively develop new product opportunities and acquisitions and to obtain value from such product opportunities and acquisitions;

 

●

penalties and market withdrawal associated with any unanticipated problems with product candidates and failure to comply with labeling and other restrictions;

 

	●	general economic conditions, our current low stock price and other factors on our operations, the continuity of our business, including our preclinical and clinical trials, and our ability to raise additional capital;
	●	expenses associated with compliance with ongoing regulatory obligations and successful continuing regulatory review;

 

 

●

market acceptance of our product candidates and ability to identify or discover additional product candidates;

 

●

our ability to obtain high titers for specific phage cocktails necessary for preclinical and clinical testing;

 

●

the availability of specialty raw materials and global supply chain challenges;

 

●

the ability of our product candidates to demonstrate requisite, safety and efficacy for drug products, or safety, purity and potency for biologics without causing adverse effects;

 

●

the success of expected future advanced clinical trials of our product candidates;

 

●

our ability to obtain required regulatory approvals;

 

●

delays in developing manufacturing processes for our product candidates;

 

●

competition from similar technologies, products that are more effective, safer or more affordable than our product candidates or products that obtain marketing approval before our product candidates;

 

●

the impact of unfavorable pricing regulations, third-party reimbursement practices or healthcare reform initiatives on our ability to sell product candidates or therapies profitably;

 

●

protection of our intellectual property rights and compliance with the terms and conditions of current and future licenses with third parties;

 

●

infringement on the intellectual property rights of third parties and claims for remuneration or royalties for assigned service invention rights;

 

●

our ability to acquire, in-license or use proprietary rights held by third parties necessary to our product candidates or future development candidates;

 

●

ethical, legal and social concerns about synthetic biology and genetic engineering that may adversely affect market acceptance of our product candidates;

 

●

reliance on third-party collaborators;

 

●

political, economic and military instability in the State of Israel, and in particular, the war in Gaza following the October 7 attack, additional potential conflicts with other middle eastern countries and the continuation of the proposed judicial and other legislation reform by the Israeli government;

 

●

our ability to attract and retain key employees or to enforce the terms of noncompetition agreements with employees;

  

●

the failure to comply with applicable laws and regulations other than drug manufacturing compliance;

 

●

potential security breaches, including cybersecurity incidents; and

 

●

other factors described in the documents incorporated by reference in this prospectus.

 

The factors discussed herein, including those risks described under the heading “Risk Factors” herein and in the documents we incorporate by reference could cause actual results and developments to be materially different from those expressed in or implied by such statements.  In addition, historic results of scientific research, clinical and preclinical trials do not guarantee that the conclusions of future research or trials would not suggest different conclusions.  Also, historic results referred to this prospectus and the documents we incorporate by reference may be interpreted differently in light of additional research, clinical and preclinical trials results.  Except as required by law we undertake no obligation to publicly update such forward-looking statements to reflect subsequent events or circumstances.

 

 

USE OF PROCEEDS

 

All of the Offered Securities offered by the Selling Securityholders pursuant to this prospectus will be sold by the Selling Securityholders for their account. We will not receive any of the proceeds from these sales except with respect to amounts received by us upon the exercise of the Warrants for cash. Out of the 386,200,774 shares of Common Stock offered hereby, 120,148,806 shares of Common Stock are issuable upon the exercise of the Warrants. Upon exercise of such Warrants, we will receive the applicable cash exercise price paid by the holders of the Warrants.

 

 

SELLING SECURITYHOLDERS

 

(i) Up to 40 Warrants to purchase up to 120,148,806 shares of Common Stock, (ii) up to 147,735 shares of Series X Preferred Stock, and (iii) up to 386,200,774 shares of Common Stock may be offered for resale, from time to time, by the Selling Securityholders identified in the table below.

 

On March 5, 2024, APT entered into the Sixth Amendment to the Lease Agreement. Under the terms of the Sixth Amendment to the Lease Agreement, the Company issued one warrant exercisable for an aggregate of 250,000 shares of Common Stock at an exercise price of $5.00 per share of Common Stock.

 

On March 6, 2024, we entered into the Securities Purchase Agreement. Under the terms of the agreement, we sold an aggregate of 216,417 shares of Series X Preferred Stock, each convertible into 1,000 shares of Common Stock, and 33 warrants exercisable for an aggregate of 108,208,500 shares of Common Stock at an exercise price of $0.2311 per share of Common Stock, for aggregate gross proceeds of approximately $50.0 million. RBC Capital Markets, LLC and Laidlaw & Company (UK) Ltd. acted as placement agents and received two warrants exercisable for up to 9,523,809 shares of Common Stock at an exercise price of $0.2311 per share of Common Stock. Pursuant to the Securities Purchase Agreement and the Merger Agreement, we agreed to prepare and file, at our sole expense, the registration statement of which this prospectus forms a part and to use our commercially reasonable efforts to cause such registration statement to be declared effective under the Securities Act after the filing thereof.

 

On March 6, 2024, we entered into the Merger Agreement. Under the terms of the Merger Agreement, the Company issued an aggregate of 9,164,968 shares of Common Stock, 40,470 shares of Series X Preferred Stock, each convertible into 1,000 shares of Common Stock, and four warrants exercisable for an aggregate of 2,166,497 shares of Common Stock at an exercise price of $5.00 per share of Common Stock.

 

Effective as of 5:00 p.m. Eastern time on July 15, 2024, each share of Series X Preferred Stock then outstanding automatically converted into 1,000 shares of Common Stock, subject to the beneficial ownership limitations. 109,152 shares of Series X Preferred Stock converted into an aggregate of 109,152,000 shares of Common Stock in the Automatic Conversion.

 

On March 6, 2024, in connection with the Securities Purchase Agreement and the Merger Agreement, we entered into a Registration Rights Agreement (the “Registration Rights Agreement”) pursuant to which we agreed to prepare and file a resale registration statement with respect to the Offered Securities and to use our commercially reasonable efforts to cause the registration statement to be declared effective by the SEC within a specified time frame.

 

To our knowledge, within the past three years, none of the Selling Securityholders has held a position as an officer or a director of ours, nor had any other material relationship of any kind with us or any of our affiliates, except to the extent set forth in the footnotes to the table below.

  

A Selling Securityholder who is an affiliate of a broker-dealer and any participating broker-dealer may be deemed to be an “underwriter” within the meaning of the Securities Act of 1933, as amended (the “Securities Act”), and any commissions or discounts given to any such Selling Securityholder or broker-dealer may be regarded as underwriting commissions or discounts under the Securities Act. To our knowledge, except to the extent set forth in the footnotes to the table below, none of the Selling Securityholders are affiliates of broker-dealers and there are no participating broker-dealers.

 

 

The term “Selling Securityholder” also includes any transferees, pledgees, donees, or other successors in interest to the Selling Securityholder named in the table below.

 

The following table sets forth the number of Offered Securities (i) known to us to be beneficially owned by each of the Selling Securityholders as of July 10, 2024, (ii) being offered hereby by each of the Selling Securityholders and (iii) beneficially owned by each of the Selling Securityholders after giving effect to the sale by a Selling Securityholder of all of its Offered Securities, in each case after giving effect to the Automatic Conversion. The following table also sets forth the percentage of Common Stock and Series X Preferred Stock beneficially owned by each of the Selling Securityholders after giving effect to (a) the Automatic Conversion and (b) the sale by a Selling Securityholder of all Offered Securities, based on 147,735 shares of Series X Preferred Stock outstanding after the Automatic Conversion and 178,958,447 shares of Common Stock anticipated to be outstanding as of July 15, 2024 following the Automatic Conversion, based on 69,806,447 shares of Common Stock outstanding as of July 10, 2024 and 109,152,000 shares of Common Stock issued in the Automatic Conversion. For purposes of the table below, we have assumed, upon termination of this offering, none of the Offered Securities will be beneficially owned by any of the Selling Securityholders, and we have further assumed that a Selling Securityholder will not acquire beneficial ownership of any additional securities during the offering.

  

The Selling Securityholders are not making any representation that any of the Offered Securities covered by this prospectus will be offered for sale. Because we do not know how long each of the Selling Securityholders will hold the Offered Securities, whether any will exercise the Warrants and, upon such exercise, how long each such Selling Securityholders will hold the shares of Common Stock before selling them, whether any will convert the Series X Preferred Stock, and upon such conversion, how long each such Selling Securityholder will hold the shares of Common Stock underlying the Series X Preferred Stock before selling them, and because each of the Selling Securityholders may dispose of all, none or some portion of its securities, no estimate can be given as to the number of securities that will be beneficially owned by a Selling Securityholder upon completion of this offering. In addition, each Selling Securityholder may have sold, transferred or otherwise disposed of its securities in transactions exempt from the registration requirements of the Securities Act after the date on which the information in the table is presented.

 

We may amend or supplement this prospectus from time to time in the future to update or change this Selling Securityholders list and the securities that may be resold.

 

		Warrants												Shares of Series X Preferred Stock																Shares of Common Stock
Name		Warrants with the following number of underlying shares beneficially owned prior to offering(1)				Warrants with the following number of underlying shares registered for sale hereby(1)				Warrants with the following number of underlying shares owned after this offering(2)				Number of shares of preferred stock beneficially owned prior to offering				Maximum number of shares of preferred stock registered for sale hereby				Number of shares of preferred stock owned after this offering(3)				Percentage of preferred stock beneficially owned after offering(3)				Number of shares of common stock beneficially owned prior to offering(4)				Maximum Number of shares of common stock registered for sale hereby				Number of shares of common stock beneficially owned after offering(5)				Percentage of common stock beneficially owned after offering(6)
Dafna Lifescience LP.(7)			1,557,500				1,557,500				0				3,115				3,115				0				0	%			4,672,500				4,672,500				0				0	%
Dafna Lifescience Select LP. (8)			605,500				605,500				0				1,211				1,211				0				0	%			1,816,500				1,816,500				0				0	%
Deerfield Private Design Fund V, L.P.(9)			20,897,175				20,897,175				0				53,840				53,840				0				0	%			8,939,077				77,792,224				0				0	%
Deerfield Healthcare Innovations Fund II, L.P.(10)			20,897,175				20,897,175				0				53,840				53,840				0				0	%			8,939,077				77,792,224				0				0	%
AMR Action Fund, SCSp(11)			3,901,521				3,901,521				0				10,906				10,906				0				0	%			2,258,932				15,594,428				0				0	%

 

 

		Warrants												Shares of Series X Preferred Stock																Shares of Common Stock
Name		Warrants with the following number of underlying shares beneficially owned prior to offering(1)				Warrants with the following number of underlying shares registered for sale hereby(1)				Warrants with the following number of underlying shares owned after this offering(2)				Number of shares of preferred stock beneficially owned prior to offering				Maximum number of shares of preferred stock registered for sale hereby				Number of shares of preferred stock owned after this offering(3)				Percentage of preferred stock beneficially owned after offering(3)				Number of shares of common stock beneficially owned prior to offering(4)				Maximum Number of shares of common stock registered for sale hereby				Number of shares of common stock beneficially owned after offering(5)				Percentage of common stock beneficially owned after offering(6)
AMR Action Fund, L.P.(12)			11,244,126				11,244,126				0				31,431				31,431				0				0	%			6,510,036				44,943,089				0				0	%
Telmina Limited(13)			1,298,000				1,298,000				0				2,596				2,596				0				0	%			6,733,714	(41)			3,894,000				2,839,714	(41)			1.6	%
OrbiMed Israel Partners Limited Partnership(14)			2,163,500				2,163,500				0				4,327				4,327				0				0	%			17,877,981	(42)			6,490,500				14,148,653	(42)			7.8	%
Cystic Fibrosis Foundation(15)			10,817,500				10,817,500				0				21,635				21,635				0				0	%			17,877,989	(43)			32,452,500				9,330,580	(43)			4.9	%
CVI Investments, Inc.(16)			4,327,000				4,327,000				0				8,654				8,654				0				0	%			8,944,523				12,981,000				0				0	%
Alyeska Master Fund, LP(17)			4,327,000				4,327,000				0				8,654				8,654				0				0	%			12,981,000				12,981,000				0				0	%
Abraham Sofaer(18)			216,000				216,000				0				432				432				0				0	%			2,393,764	(44)			648,000				1,745,764	(44)			*	%
ADAR1 Partners, LP(19)			2,163,500				2,163,500				0				4,327				4,327				0				0	%			6,490,500				6,490,500				0				0	%
AIGH Investment Partners, LP(20)			3,249,000				3,249,000				0				6,498				6,498				0				0	%			6,716,144				9,747,000				0				0	%
WVP Emerging Manager Onshore Fund, LLC – AIGH Series(21)			833,500				833,500				0				1,667				1,667				0				0	%			1,722,963				2,500,500				0				0	%
WVP Emerging Manager Onshore Fund, LLC – Optimized Equity Series(22)			244,500				244,500				0				489				489				0				0	%			505,416				733,500				0				0	%
Allostery Master Fund LP(23)			2,163,500				2,163,500				0				4,327				4,327				0				0	%			6,899,589	(49)			6,490,500				409,089	(49)			*	%
Stichting Administratiekantoor The Invisible Hand at Work(24)			324,500				324,500				0				649				649				0				0	%			1,676,017	(45)			973,500				702,517	(45)			*	%
Ikarian Healthcare Master Fund, LP(25)			3,970,500				3,970,500				0				7,941				7,941				0				0	%			6,556,020				11,911,500				0				0	%

 

 

		Warrants												Shares of Series X Preferred Stock																Shares of Common Stock
Name		Warrants with the following number of underlying shares beneficially owned prior to offering(1)				Warrants with the following number of underlying shares registered for sale hereby(1)				Warrants with the following number of underlying shares owned after this offering(2)				Number of shares of preferred stock beneficially owned prior to offering				Maximum number of shares of preferred stock registered for sale hereby				Number of shares of preferred stock owned after this offering(3)				Percentage of preferred stock beneficially owned after offering(3)				Number of shares of common stock beneficially owned prior to offering(4)				Maximum Number of shares of common stock registered for sale hereby				Number of shares of common stock beneficially owned after offering(5)				Percentage of common stock beneficially owned after offering(6)
Boothbay Absolute Return Strategies, LP(26)			1,269,500				1,269,500				0				2,539				2,539				0				0	%			2,504,505				3,808,500				0				0	%
Boothbay Diversified Alpha Master Fund LP(27)			600,500				600,500				0				1,201				1,201				0				0	%			1,165,502				1,801,500				0				0	%
Iroquois Capital Investment Group, LLC(28)			703,000				703,000				0				1,406				1,406				0				0	%			1,885,198				2,109,000				0				0	%
Iroquois Master Fund, Ltd. (29)			378,500				378,500				0				757				757				0				0	%			1,015,003				1,135,500				0				0	%
Kingsbrook Opportunities Master Fund LP(30)			649,000				649,000				0				1,298				1,298				0				0	%			1,947,000				1,947,000				0				0	%
Blackwell Partners LLC – Series A(31)			4,676,000				4,676,000				0				9,352				9,352				0				0	%			9,695,379				14,028,000				0				0	%
Nantahala Capital Partners Limited Partnership(32)			1,565,000				1,565,000				0				3,130				3,130				0				0	%			3,244,925				4,695,000				0				0	%
Pinehurst Partners, L.P. (33)			1,081,500				1,081,500				0				2,163				2,163				0				0	%			2,242,419				3,244,500				0				0	%
NCP RFM LP(34)			1,330,500				1,330,500				0				2,661				2,661				0				0	%			2,758,705				3,991,500				0				0	%
Norm Gitis(35)			108,000				108,000				0				216				216				0				0	%			1,344,408	(46)			324,000				1,020,408	(46)			*	%
Revach Fund LP(36)			649,000				649,000				0				1,298				1,298				0				0	%			1,947,000				1,947,000				0				0	%
Lytton-Kambara Foundation(37)			2,163,500				2,163,500				0				4,327				4,327				0				0	%			6,128,747				6,490,500				0				0	%
RBC Capital Markets, LLC(38)			6,666,667	(40)			6,666,667	(40)			0				0				0				0				0	%			2,900,201				6,666,667				0				0	%
Laidlaw & Co. (UK) Ltd.(39)			2,857,142	(40)			2,857,142	(40)			0				0				0				0				0	%			2,857,142				2,857,142				0				0	%
Alexandria Venture Investments, LLC(47)			250,000	(48)			250,000	(48)			0				0				0				0				0				250,000				250,000				0				0	%

 

(1)

Unless otherwise specified, warrants consist of the PIPE Warrants and the Merger Consideration Warrants, as applicable.

 

(2)

Assumes the sale of all Warrants that are registered pursuant to this prospectus.

 

 

(3)

Assumes the sale of all shares of Series X Preferred Stock that are registered pursuant to this prospectus.

 

(4)

Consists of shares of common stock (i) underlying the Warrants as exercised on a 1:1 basis, (ii) issued in the Automatic Conversion of the Series X Preferred Stock on a 1:1,000 basis, (iii) underlying the Series X Preferred Stock remaining outstanding following the Automatic Conversion converted on a 1:1000 basis, (iii) issued as merger consideration under the Merger Agreement and (iv) beneficially owned prior to the Merger, in each case of (i)-(iv) subject to the beneficial ownership limitations contained in the Securities Purchase Agreement and the Warrants.

 

(5)

Assumes the sale of all shares of common stock underlying the Warrants, underlying the Series X Preferred Stock and issued as merger consideration under the Merger Agreement, all of which are registered pursuant to this prospectus.

 

(6)

Such percentage reflects the beneficial ownership limitations contained in the Securities Purchase Agreement.

 

(7)

Registered shares consist of 3,115,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 1,557,500 shares of common stock underlying one Warrant. DAFNA Capital Management LLC is the sole general partner of DAFNA LifeScience, LP and DAFNA LifeScience Select, LP. The Chief Executive Officer and Chief Investment Officer of DAFNA Capital Management LLC are Dr. Nathan Fischel and Dr. Fariba Ghodsian, respectively. These individuals may be deemed to have shared voting and investment power of the shares held by DAFNA LifeScience, LP and DAFNA LifeScience Select, LP. Each of Dr. Fischel and Dr. Ghodsian disclaim beneficial ownership of such shares, except to the extent of his or her pecuniary interest therein.

 

(8)

Registered shares consist of 1,211,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 605,500 shares of common stock underlying one Warrant. DAFNA Capital Management LLC is the sole general partner of DAFNA LifeScience, LP and DAFNA LifeScience Select, LP. The Chief Executive Officer and Chief Investment Officer of DAFNA Capital Management LLC are Dr. Nathan Fischel and Dr. Fariba Ghodsian, respectively. These individuals may be deemed to have shared voting and investment power of the shares held by DAFNA LifeScience, LP and DAFNA LifeScience Select, LP. Each of Dr. Fischel and Dr. Ghodsian disclaim beneficial ownership of such shares, except to the extent of his or her pecuniary interest therein.

 

(9)

Registered shares consist of 3,055,049 shares of common stock owned prior to the Automatic Conversion, 5,883,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock, 47,957,000 shares of common stock underlying shares of Series X Preferred Stock not converted in the Automatic Conversion and 20,897,175 shares of common stock underlying two Warrants. Deerfield Mgmt V, L.P. is the general partner of Deerfield Private Design Fund V, L.P. Deerfield Management Company, L.P. is the investment manager of Deerfield Private Design Fund V, L.P. James E. Flynn is the sole member of the general partner of each of Deerfield Mgmt V, L.P. and Deerfield Management Company, L.P. Jonathan Leff, an employee of Deerfield Management Company, L.P. (the investment manager of Deerfield Private Design Fund V, L.P.), became a director of the Company prior to (or contemporaneously with) the closing of the PIPE.

 

(10)

Registered shares consist of 3,055,049 shares of common stock owned prior to the Automatic Conversion, 5,883,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock, 47,957,000 shares of common stock underlying shares of Series X Preferred Stock not converted in the Automatic Conversion and 20,897,175 shares of common stock underlying two Warrants. Deerfield Mgmt HIF II, L.P. is the general partner of Deerfield Healthcare Innovations Fund II, L.P. Deerfield Management Company, L.P. is the investment manager of Deerfield Healthcare Innovations Fund II, L.P. James E. Flynn is the sole member of the general partner of each of Deerfield Mgmt HIF II, L.P. and Deerfield Management Company, L.P. Jonathan Leff, an employee of Deerfield Management Company, L.P. (the investment manager of Deerfield Healthcare Innovations Fund II, L.P.), became a director of the Company prior to (or contemporaneously with) the closing of the PIPE.

 

(11)

Registered shares consist of 786,907 shares of common stock owned prior to the Automatic Conversion, 1,472,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock, 9,434,000 shares of common stock underlying shares of Series X Preferred Stock not converted in the Automatic Conversion and 3,901,521 shares of common stock underlying two Warrants. AMR Action Fund GP, LLC (“AMR US GP”) is the general partner of AMR Action Fund, L.P. As a result, AMR US GP may be deemed to have shared voting and investment power over the securities held by AMR Action Fund, L.P., and AMR US GP may be deemed to directly or indirectly be the beneficial owner of the securities held by AMR Action Fund, L.P. AMR US GP exercises its voting and dispositive power through an investment committee consisting of three or more members. Each member has one vote, and the approval of a majority is required to approve an action. Under the so-called “rule of three,” if voting and dispositive decisions regarding an entity’s securities are made by three or more individuals, and voting or dispositive decisions require the approval of a majority of those individuals, then none of the individuals is deemed a beneficial owner of the entity’s securities. Martin Heidecker, Chief Investment Officer of the AMR Action Fund, served as a director of Adaptive Phage Therapeutics, Inc. until the consummation of the Merger.

 

(12)

Registered shares consist of 2,267,963 shares of common stock owned prior to the Automatic Conversion, 4,242,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock, 27,189,000 shares of common stock underlying shares of Series X Preferred Stock not converted in the Automatic Conversion and 11,244,126 shares of common stock underlying two Warrants. AMR Action Fund GP, S.a r.l. (“AMR Lux GP”) is the general partner of AMR Action Fund, SCSp. As a result, AMR Lux GP may be deemed to have shared voting and investment power over the securities held by AMR Action Fund, SCSp, and AMR Lux GP may be deemed to directly or indirectly be the beneficial owner of the securities held by AMR Action Fund, SCSp. AMR US GP serves as the investment advisor of AMR Action Fund, SCSp. AMR Lux GP exercises its voting and dispositive power with respect to such securities through an investment committee consisting of three or more members. Each member has one vote, and the approval of a majority is required to approve an action. Under the so-called “rule of three,” if voting and dispositive decisions regarding an entity’s securities are made by three or more individuals, and voting or dispositive decisions require the approval of a majority of those individuals, then none of the individuals is deemed a beneficial owner of the entity’s securities. Martin Heidecker, Chief Investment Officer of the AMR Action Fund, served as a director of Adaptive Phage Therapeutics, Inc. until the consummation of the Merger.

 

 

(13)

Registered shares consist of 2,596,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 1,298,000 shares of common stock underlying one Warrant. Rodney Hodges has sole voting and investment power over these securities. Centaurus Investments Limited is the registered holder through which the securities are held.

 

(14)

Registered shares consist of 4,104,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock, 223,000 shares of common stock underlying shares of Series X Preferred Stock not converted in the Automatic Conversion and 2,163,500 shares of common stock underlying one Warrant. Securities are owned directly by OrbiMed Israel Partners Limited Partnership (“OIP LP”). OrbiMed Israel BioFund GP Limited Partnership (“BioFund GP LP”) is the general partner of OIP LP, and OrbiMed Israel GP Ltd. (“Israel GP”) is the general partner of BioFund GP LP. As a result, Israel GP and BioFund GP LP may be deemed to have shared voting and investment power over the securities held by OIP LP, and both Israel GP and BioFund GP LP may be deemed to directly or indirectly, including by reason of their mutual affiliation, to be the beneficial owners of the shares held by OIP LP. Israel GP exercises this investment power through an investment committee comprised of Carl L. Gordon and Erez Chimovits, each of whom disclaims beneficial ownership of the shares held by OIP. Erez Chimovits, an employee at OrbiMed, previously served as a Company director.

 

(15)

Registered shares consist of 8,547,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock, 13,088,000 shares of common stock underlying shares of Series X Preferred Stock not converted in the Automatic Conversion and 10,817,500 shares of common stock underlying one Warrant.

  

(16)

Registered shares consist of 8,654,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 4,327,000 shares of common stock underlying one Warrant. Heights Capital Management, Inc., the authorized agent of CVI Investments, Inc. (“CVI”), has discretionary authority to vote and dispose of the shares held by CVI and may be deemed to be the beneficial owner of these shares. Martin Kobinger, in his capacity as Investment Manager of Heights Capital Management, Inc., may also be deemed to have investment discretion and voting power over the shares held by CVI. Mr. Kobinger disclaims any such beneficial ownership of the shares. CVI Investments, Inc.is affiliated with one or more FINRA members, none of whom are currently expected to participate in the sale pursuant to the prospectus contained in the Registration Statement of Shares purchased by the Investor in this offering. CVI is a broker-dealer affiliate and has certified that CVI bought the Offered Securities in the ordinary course of business, and at the time of the purchase of the Offered Securities to be resold, CVI had no agreements or understandings, directly or indirectly, with any person to distribute the Offered Securities.

 

(17)

Registered shares consist of 8,654,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 4,327,000 shares of common stock underlying one Warrant.

 

(18)

Registered shares consist of 432,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 216,000 shares of common stock underlying one Warrant. Abraham Sofaer has sole voting and investment power over these securities.

 

(19)

Registered shares consist of 4,327,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 2,163,500 shares of common stock underlying one Warrant. Daniel Pawel Schneeberger has sole voting and investment power over these securities.

 

(20)

Registered shares consist of 6,498,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 3,249,000 shares of common stock underlying one Warrant. Orin Hirschman has sole voting and investment power over these securities.

 

 

(21)

Registered shares consist of 1,667,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 833,500 shares of common stock underlying one Warrant. Orin Hirschman has sole voting and investment power over these securities.

 

(22)

Registered shares consist of 489,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 244,500 shares of common stock underlying one Warrant. Orin Hirschman has sole voting and investment power over these securities.

 

(23)

Registered shares consist of 4,327,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 2,163,500 shares of common stock underlying one Warrant. David Modest has sole voting and investment power over these securities.

 

(24)

Registered shares consist of 649,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 324,500 shares of common stock underlying one Warrant. Hendrik Brulleman has sole voting and investment power over these securities.

 

(25)

Registered shares consist of 6,556,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock, 1,385,000 shares of common stock underlying the shares of Series X Preferred Stock not converted in the Automatic Conversion and 3,970,500 shares of common stock underlying one Warrant. Neil Shahrestani has sole voting and investment power over these securities.

 

(26)

Registered shares consist of 2,202,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock, 337,000 shares of common stock underlying the shares of Series X Preferred Stock not converted in the Automatic Conversion and 1,269,500 shares of common stock underlying two Warrants.

 

(27)

Registered shares consist of 1,036,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock, 165,000 shares of common stock underlying the shares of Series X Preferred Stock not converted in the Automatic Conversion and 600,500 shares of common stock underlying two Warrants.

 

(28)

Registered shares consist of 1,406,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 703,000 shares of common stock underlying one Warrant. Richard Abbe is the managing member of Iroquois Capital Investment Group LLC. Mr. Abbe has voting control and investment discretion over securities held by Iroquois Capital Investment Group LLC. As such, Mr. Abbe may be deemed to be the beneficial owner (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended) of the securities held by Iroquois Capital Investment Group LLC.

 

(29)

Registered shares consist of 757,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 378,500 shares of common stock underlying one Warrant. Iroquois Capital Management L.L.C. is the investment manager of Iroquois Master Fund, Ltd. Iroquois Capital Management, LLC  has voting control and investment discretion over securities held by Iroquois Master Fund. As Managing Members of Iroquois Capital Management, LLC, Richard Abbe and Kimberly Page make voting and investment decisions on behalf  of Iroquois Capital Management, LLC in its capacity as investment manager to Iroquois Master Fund Ltd. As a result of the foregoing, Mr. Abbe and Mrs. Page may be deemed to have beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended) of the securities held by Iroquois Capital Management and Iroquois Master Fund.

 

(30)

Registered shares consist of 1,298,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 649,000 shares of common stock underlying one Warrant. Kingsbrook Partners LP (“Kingsbrook Partners”) is the investment manager of Kingsbrook Opportunities Master Fund LP (“Kingsbrook Opportunities”) and consequently has voting control and investment discretion over securities held by Kingsbrook Opportunities. Kingsbrook Opportunities GP LLC (“Opportunities GP”) is the general partner of Kingsbrook Opportunities and may be considered the beneficial owner of any securities deemed to be beneficially owned by Kingsbrook Opportunities. KB GP LLC (“GP LLC”) is the general partner of Kingsbrook Partners and may be considered the beneficial owner of any securities deemed to be beneficially owned by Kingsbrook Partners. Ari J. Storch, Adam J. Chill and Scott M. Wallace are the sole managing members of Opportunities GP and GP LLC and as a result may be considered beneficial owners of any securities deemed beneficially owned by Opportunities GP and GP LLC. Each of Kingsbrook Partners, Opportunities GP, GP LLC and Messrs. Storch, Chill and Wallace disclaim beneficial ownership of these securities.

 

(31)

Registered shares consist of 9,352,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 4,676,000 shares of common stock underlying one Warrant. Nantahala Capital Management, LLC is a Registered Investment Adviser and has been delegated the legal power to vote and/or direct the disposition of these securities on behalf of the Selling Securityholder as a General Partner, Investment Manager, or Sub-Advisor and would be considered the beneficial owner of such securities. The above shall not be deemed to be an admission by the record owners or the Selling Securityholder that they are themselves beneficial owners of these securities for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, or any other purpose. Wilmot Harkey and Daniel Mack are managing members of Nantahala Capital Management, LLC and may be deemed to have voting and dispositive power over the shares held by the Selling Securityholder.

 

 

(32)

Registered shares consist of 3,130,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 1,565,000 shares of common stock underlying one Warrant. Nantahala Capital Management, LLC is a Registered Investment Adviser and has been delegated the legal power to vote and/or direct the disposition of these securities on behalf of the Selling Securityholder as a General Partner, Investment Manager, or Sub-Advisor and would be considered the beneficial owner of such securities. The above shall not be deemed to be an admission by the record owners or the Selling Securityholder that they are themselves beneficial owners of these securities for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, or any other purpose. Wilmot Harkey and Daniel Mack are managing members of Nantahala Capital Management, LLC and may be deemed to have voting and dispositive power over the shares held by the Selling Securityholder.

 

(33)

Registered shares consist of 2,163,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 1,081,500 shares of common stock underlying one Warrant. Nantahala Capital Management, LLC is a Registered Investment Adviser and has been delegated the legal power to vote and/or direct the disposition of these securities on behalf of the Selling Securityholder as a General Partner, Investment Manager, or Sub-Advisor and would be considered the beneficial owner of such securities. The above shall not be deemed to be an admission by the record owners or the Selling Securityholder that they are themselves beneficial owners of these securities for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, or any other purpose. Wilmot Harkey and Daniel Mack are managing members of Nantahala Capital Management, LLC and may be deemed to have voting and dispositive power over the shares held by the Selling Securityholder.

 

(34)

Registered shares consist of 2,661,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 1,330,500 shares of common stock underlying one Warrant. Nantahala Capital Management, LLC is a Registered Investment Adviser and has been delegated the legal power to vote and/or direct the disposition of these securities on behalf of the Selling Securityholder as a General Partner, Investment Manager, or Sub-Advisor and would be considered the beneficial owner of such securities. The above shall not be deemed to be an admission by the record owners or the Selling Securityholder that they are themselves beneficial owners of these securities for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, or any other purpose. Wilmot Harkey and Daniel Mack are managing members of Nantahala Capital Management, LLC and may be deemed to have voting and dispositive power over the shares held by the Selling Securityholder.

 

(35)

Registered shares consist of 216,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 108,000 shares of common stock underlying one Warrant. Norm Gitis has sole voting and investment power over these securities.

 

(36)

Registered shares consist of 1,298,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 649,000 shares of common stock underlying one Warrant. Chaim Davis has sole voting and investment power over these securities.

 

(37)

Registered shares consist of 4,327,000 shares of common stock issued in the Automatic Conversion of the Series X Preferred Stock and 2,163,500 shares of common stock underlying one Warrant. Laurence Lytton has sole voting and investment power over these securities.

 

(38)

Registered shares consist of 6,666,667 shares of common stock underlying one Warrant. RBC Capital Markets, LLC, a registered broker-dealer, acted as placement for the PIPE.

 

(39)

Registered shares consist of 2,857,142 shares of common stock underlying one Warrant. Laidlaw & Co. (UK) Ltd., a registered broker-dealer, acted as placement agent for the PIPE.

 

(40)

Consists of the Placement Agent Warrant issued to the applicable Placement Agent. The Placement Agent Warrants were received as compensation for investment banking services to the Company.

 

(41)

Consists of 2,839,714 shares of common stock beneficially owned prior to the Merger.

 

(42)

Consists of 13,773,653 shares of common stock and 375,000 shares of common stock underlying warrants, in each case beneficially owned prior to the Merger.

 

(43)

Consists of 9,330,580 shares of common stock beneficially owned prior to the Merger.

 

(44)

Consists of 1,745,764 shares of common stock beneficially owned prior to the Merger.

 

(45)

Consists of 702,517 shares of common stock beneficially owned prior to the Merger.

 

(46)

Consists of 1,020,408 shares of common stock beneficially owned prior to the Merger.

 

(47)

Registered shares consist of 250,000 shares of common stock underlying the Landlord Warrant. Alexandria Venture Investments, LLC, a Delaware limited liability company, is an affiliate of the Landlord.

 

(48)

Consists of the Landlord Warrant issued to Alexandria Venture Investments, LLC in connection with the Sixth Amendment to the Lease Agreement.

  

(49)

Consists of 409,089 shares of common stock beneficially owned prior to the Merger.

 

 

PLAN OF DISTRIBUTION

 

We are registering a total of (i) up to 40 Warrants to purchase up to 120,148,806 shares of Common Stock, (ii) up to 147,735 shares of Series X Preferred Stock, and (iii) up to 386,200,774 shares of Common Stock issued to the Selling Securityholders to permit the sale, transfer or other disposition of the Offered Securities by the Selling Securityholders or their donees, pledgees, transferees or other successors-in-interest from time to time after the date of this prospectus. We will not receive any of the proceeds from these sales except with respect to amounts received by us upon the exercise of the Warrants for cash. Out of the 386,200,774 shares of Common Stock offered hereby, 120,148,806 shares of Common Stock are issuable upon the exercise of the Warrants. Upon exercise of such Warrants, we will receive the applicable cash exercise price paid by the holders of the Warrants. We will, or will procure to, bear all fees and expenses incident to our obligation to register the Offered Securities.

 

The Selling Securityholders may sell all or a portion of the Offered Securities beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the Offered Securities are sold through underwriters or broker-dealers, the Selling Securityholders will be responsible for underwriting discounts (it being understood that the Selling Securityholders shall not be deemed to be underwriters solely as a result of their participation in this offering) or commissions or agent’s commissions. The Offered Securities may be sold on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale, in the over-the-counter market or in transactions otherwise than on these exchanges or systems or in the over-the-counter market and 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. The Selling Securityholders may use any one or more of the following methods when selling Offered Securities:

  

●

ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;

 

●

block trades in which the broker-dealer will attempt to sell the Offered Securities as agent but may position and resell a portion of the block as principal to facilitate the transaction;

 

●

to or through underwriters or purchases by a broker-dealer as principal and resale by the broker-dealer for its account;

 

●

an exchange distribution in accordance with the rules of the applicable exchange;

 

●

privately negotiated transactions;

 

●

settlement of short sales entered into after the effective date of the registration statement of which this prospectus is a part;

 

●

broker-dealers may agree with the Selling Securityholders to sell a specified number of such Offered Securities at a stipulated price per Offered Security;

 

●

through the writing or settlement of options or other hedging transactions, whether such options are listed on an options exchange or otherwise;

 

●

a combination of any such methods of sale; and

 

●

any other method permitted pursuant to applicable law.

 

 

The Selling Securityholders also may resell all or a portion of the Offered Securities in open market transactions in reliance upon Rule 144 under the Securities Act, as amended, as permitted by that rule, or Section 4(a)(1) under the Securities Act, if available, rather than under this prospectus, provided that they meet the criteria and conform to the requirements of those provisions.

 

Broker-dealers engaged by the Selling Securityholders may arrange for other broker-dealers to participate in sales. If the Selling Securityholders effect such transactions by selling Offered Securities 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 Securityholders or commissions from purchasers of the Offered Securities for whom they may act as agent or to whom they may sell as principal. Such commissions will be in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction will not be in excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or markdown in compliance with FINRA IM-2121.01.

 

In connection with sales of the Offered Securities or otherwise, the Selling Securityholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the Offered Securities in the course of hedging in positions they assume. The Selling Securityholders may also sell Offered Securities short and may deliver Offered Securities covered by this prospectus to close out short positions and to return borrowed Offered Securities in connection with such short sales. The Selling Securityholders may also loan or pledge Offered Securities to broker-dealers that in turn may sell such Offered Securities, to the extent permitted by applicable law. The Selling Securityholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction). Notwithstanding the foregoing, the Selling Securityholders have been advised that they may not use Offered Securities the resale of which has been registered on this registration statement to cover short sales of our Common Stock made prior to the date the registration statement, of which this prospectus forms a part, has been declared effective by the SEC.

 

The Selling Securityholders may, from time to time, pledge or grant a security interest in some or all of the Offered Securities owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the Offered Securities 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, amending, if necessary, the list of Selling Securityholders to include the pledgee, transferee or other successors in interest as Selling Securityholders under this prospectus. The Selling Securityholders also may transfer and donate the Offered Securities 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 Securityholders and any broker-dealer or agents participating in the distribution of the Offered Securities may be deemed to be “underwriters” within the meaning of Section 2(11) of the Securities Act in connection with such sales. In such event, any commissions paid, or any discounts or concessions allowed to, any such broker-dealer or agent and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Selling Securityholders who are “underwriters” within the meaning of Section 2(11) of the Securities Act will be subject to the applicable prospectus delivery requirements of the Securities Act including Rule 172 thereunder and may be subject to certain statutory liabilities of, including but not limited to, Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the Securities Exchange Act of 1934, as amended, or the Exchange Act.

 

 

Each Selling Securityholder, excluding RBC Capital Markets, LLC and Laidlaw & Co. (UK) Ltd, has informed the Company that it is not a registered broker-dealer, and does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the Offered Securities. Upon the Company being notified in writing by a Selling Securityholder that any material arrangement has been entered into with a broker-dealer for the sale of the Offered Securities through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, a supplement to this prospectus will be filed, if required, pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of each such Selling Securityholder and of the participating broker-dealer(s), (ii) the number of Offered Securities involved, (iii) the price at which such Offered Securities were sold, (iv) the commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus, and (vi) other facts material to the transaction. In no event shall any broker-dealer receive fees, commissions and markups, which, in the aggregate, would exceed eight percent (8.0%).

 

Under the securities laws of some U.S. states, the Offered Securities may be sold in such states only through registered or licensed brokers or dealers. In addition, in some U.S. states the Offered Securities may not be sold unless such 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 Securityholder will sell any or all of the Offered Securities registered pursuant to the shelf registration statement, of which this prospectus forms a part.

 

Each Selling Securityholder 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, to the extent applicable, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the Offered Securities by the Selling Securityholder and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the Offered Securities to engage in market-making activities with respect to the Offered Securities. All of the foregoing may affect the marketability of the Offered Securities and the ability of any person or entity to engage in market-making activities with respect to the Offered Securities.

 

We will pay all expenses of the registration of the Offered Securities pursuant to the Registration Rights Agreement, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, that each Selling Securityholder will pay all underwriting discounts and selling commissions, if any and any related legal expenses incurred by it. We will indemnify the Selling Securityholders against certain liabilities, including some liabilities under the Securities Act, in accordance with the Registration Rights Agreement, or the Selling Securityholders will be entitled to contribution. We may be indemnified by the Selling Securityholders against certain civil liabilities set forth in the Registration Rights Agreement, including liabilities under the Securities Act, that may arise from any written information furnished to us by the Selling Securityholders specifically for use in this prospectus, in accordance with the related registration rights agreements, or we may be entitled to contribution.

   

 

DESCRIPTION OF SECURITIES TO BE REGISTERED

 

The following description of our Common Stock, Series X Preferred Stock and Warrants summarizes the material terms and provisions of our Common Stock, Series X Preferred Stock, Merger Warrants, Private Placement Warrants and Placement Agent Warrants. The following description does not purport to be complete and is subject to, and qualified in its entirety by, BiomX’s Certificate of Incorporation, Bylaws, and Certificate of Designation, each as may be amended, which are incorporated by reference to Exhibits 3.1, 3.2 and 3.3, respectively, of BiomX’s Annual Report on Form 10-K for the year ended December 31, 2023, as filed with the SEC on April 4, 2024, the Third Amendment to the Certificate of Incorporation which is incorporated by reference to Exhibit 3.1 of BiomX’s Current Report on Form 8-K filed on July 9, 2024 with the SEC, and by applicable law. The terms of BiomX’s Common Stock, Series X Preferred Stock and Warrants may also be affected by Delaware law.

 

Our authorized capital stock consists of 750,000,000 shares of Common Stock, and 1,000,000 shares of preferred stock, of which 256,888 shares are designated as Series X Preferred Stock.

 

Common Stock

 

Holders of record of our Common Stock are entitled to one vote for each share held on all matters to be voted on by stockholders. The holders of our Common Stock have no conversion, preemptive or other subscription rights and there are no sinking fund or redemption provisions applicable to the shares of Common Stock. There is no cumulative voting with respect to the election of directors. In the event of our liquidation, dissolution, or winding up, holders of our Common Stock will be entitled to share ratably in all assets remaining after payment of all debts and other liabilities and any liquidation preference of any outstanding preferred stock. Our stockholders are entitled to receive ratable dividends when, as and if declared by our Board of Directors out of funds legally available therefor.

 

We have not paid any cash dividends on our Common Stock to date and do not intend to pay cash dividends in the foreseeable future. The payment of cash dividends in the future will be dependent upon our revenues and earnings, if any, capital requirements and general financial condition. The payment of any cash dividends will be within the discretion of our Board of Directors at such time. Our Common Stock is listed on NYSE American under the symbol “PHGE.” The transfer agent and registrar for our Common Stock is Continental Stock Transfer & Trust Company. The transfer agent and registrar’s address is 1 State Street, 30th Floor, New York, NY 10004-1561.

 

Preferred Stock

 

Our Certificate of Incorporation authorizes the issuance of 1,000,000 shares of preferred stock with such designation, rights and preferences as may be determined from time to time by our Board of Directors. Accordingly, our Board of Directors is empowered, without stockholder approval, to issue preferred stock with dividend, liquidation, conversion, voting or other rights which could adversely affect the voting power or other rights of the holders of Common Stock. In addition, the preferred stock could be utilized as a method of discouraging, delaying or preventing a change in control of us.

 

Series X Preferred Stock

 

We have 147,735 shares of Series X Non-Voting Convertible Preferred Stock outstanding, convertible into an aggregate of 147,735,000 shares of Common Stock. The powers, preferences, rights, qualifications, limitations and restrictions applicable to the Series X Preferred Stock are set forth in the Certificate of Designation, which was filed with the Secretary of State of the State of Delaware.

 

 

Holders of Series X Preferred Stock are entitled to receive dividends on shares of Series X Preferred Stock equal to, on an as-if-converted-to-Common-Stock basis, and in the same form as, dividends actually paid on shares of the Common Stock. Except as otherwise required by law or with respect to the Series X Preferred Stock protective provisions set forth in the Certificate of Designation and described below, the Series X Preferred Stock does not have voting rights.

 

The Certificate of Designation contains certain covenants of the Company that are customary for documents of this type, including restrictions on taking certain actions without the affirmative vote or written approval, agreement or waiver of the requisite holders. The Series X Preferred Stock does not have a preference upon any liquidation, dissolution or winding-up of the Company.

 

Each share of Series X Preferred Stock is convertible at the option of the holder thereof into 1,000 shares of Common Stock, subject to certain limitations, including that a holder of Series X Preferred Stock is prohibited from converting shares of Series X Preferred Stock into shares of Common Stock if, as a result of such conversion, such holder, together with any person whose beneficial ownership would be aggregated with such holder’s for purposes of Section 13(d) or Section 16 of the Exchange Act, would beneficially own more than a specified percentage (as has been established by the holder between 0% and 19.99%) of the total number of shares of Common Stock issued and outstanding immediately after giving effect to such conversion.

 

The holders of Series X Preferred Stock have no preemptive or other subscription rights and there are no sinking fund provisions applicable to the shares of Common Stock. There is no established public trading market for the Series X Preferred Stock and we do not intend to list the Series X Preferred Stock on any national securities exchange or nationally recognized trading system. The transfer agent and registrar for our Series X Preferred Stock is Continental Stock Transfer & Trust Company. The transfer agent and registrar’s address is 1 State Street, 30th Floor, New York, NY 10004-1561.

 

Merger Warrants

 

The four Merger Warrants are exercisable for an aggregate of 2,166,497 shares of Common Stock at an exercise price of $5.00 per share. The Merger Warrants may be exercised at any time prior to their expiration on January 28, 2027. The exercise price of the Merger Warrants is subject to customary adjustments for stock dividends, stock splits, reclassifications and the like.

 

The Merger Warrants may not be exercised to the extent that, after giving effect to such exercise, the holder thereof, together with its affiliates, and any other persons acting as a group together with the holder or any of the holder’s affiliates (such persons, “Attribution Parties”), would beneficially own in excess of 9.90% of the number of shares of Common Stock outstanding immediately after giving effect to such exercise.

 

The Merger Warrants are subject to customary buy-in provisions in the event the shares underlying the Merger Warrants are not delivered to the holder thereof in accordance with the terms of the Merger Warrants following exercise and such holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the holder of the shares which the holder anticipated receiving upon such exercise.

 

There is no established public trading market for the Merger Warrants and we do not intend to list the Merger Warrants on any national securities exchange or nationally recognized trading system.

 

 

Landlord Warrant

 

The one Landlord Warrant is exercisable for an aggregate of 250,000 shares of Common Stock at an exercise price of $5.00 per share. The terms of the Landlord Warrant are identical to those of the Merger Warrants. There is no established public trading market for the Landlord Warrant and we do not intend to list the Landlord Warrant on any national securities exchange or nationally recognized trading system.

 

Private Placement Warrants

 

The 33 Private Placement Warrants are exercisable for an aggregate of 108,208,500 shares of Common Stock at an exercise price of $0.2311 per share. The Private Placement Warrants may be exercised at any time and expire on July 9, 2026. The exercise price of the Private Placement Warrants is subject to customary adjustments for stock dividends, stock splits, reclassifications and the like.

 

The Private Placement Warrants may not be exercised to the extent that, after giving effect to such exercise, the holder thereof, together with its Attribution Parties, would beneficially own a number of shares of Common Stock in excess of such holder’s beneficial ownership limitation, which limitation was initially set at such holder’s discretion to a percentage between 0% and 19.99% of the number of shares of Common Stock outstanding or deemed to be outstanding as of the applicable measurement date.

 

The Private Placement Warrants are subject to customary buy-in provisions in the event the shares underlying the Private Placement Warrants are not delivered to the holder thereof in accordance with the terms of the Private Placement Warrants following exercise and such holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the holder of the shares which the holder anticipated receiving upon such exercise.

 

There is no established public trading market for the Private Placement Warrants and we do not intend to list the Private Placement Warrants on any national securities exchange or nationally recognized trading system.

 

Placement Agent Warrants

 

The two Placement Agent Warrants are exercisable for an aggregate of 9,523,809 shares of Common Stock at an exercise price of $0.2311 per share. The terms of the Placement Agent Warrants are substantially the same as those of the Private Placement Warrants, except that the Placement Agent Warrants may, at the election of the holder thereof, be exercised either for cash or on a cashless basis. There is no established public trading market for the Placement Agent Warrants and we do not intend to list the Placement Agent Warrants on any national securities exchange or nationally recognized trading system.

 

Certain Anti-Takeover Provisions of Delaware Law and our Certificate of Incorporation and Bylaws

 

We are subject to the provisions of Section 203 of the DGCL regulating corporate takeovers. This statute prevents certain Delaware corporations, under certain circumstances, from engaging in a “business combination” with:

 

●

a stockholder who owns 15% or more of our outstanding voting stock (otherwise known as an “interested stockholder”);

 

●

an affiliate of an interested stockholder; or

 

●

an associate of an interested stockholder, for three years following the date that the stockholder became an interested stockholder.

 

 

A “business combination” includes a merger or sale of more than 10% of our assets. However, the above provisions of Section 203 do not apply if:

 

●

our Board of Directors approves the transaction that made the stockholder an “interested stockholder,” prior to the date of the transaction;

 

●

after the completion of the transaction that resulted in the stockholder becoming an interested stockholder, that stockholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, other than statutorily excluded shares of Common Stock; or

 

●

on or subsequent to the date of the transaction, the business combination is approved by our Board of Directors and authorized at a meeting of our stockholders, and not by written consent, by an affirmative vote of at least two-thirds of the outstanding voting stock not owned by the interested stockholder.

 

Special meeting of stockholders

 

Our Bylaws provide that special meetings of our stockholders may be called only by a majority vote of our Board of Directors, or by our chief executive officer.

 

Classified Board of Directors

 

Our Board of Directors is divided into three classes, each of which will generally serve for a term of three years with only one class of directors being elected in each year. This system of electing directors may tend to discourage a third party from making a tender offer or otherwise attempting to obtain control of us, because it generally makes it more difficult for stockholders to replace a majority of the directors.

 

Advance notice requirements for stockholder proposals and director nominations

 

Our Bylaws provide that stockholders seeking to bring business before our annual meeting of stockholders, or to nominate candidates for election as directors at our annual meeting of stockholders must provide timely notice of their intent in writing. To be timely, a stockholder’s notice to bring matters before our annual meeting of stockholders needs to be delivered to our principal executive offices not later than the close of business on the 90^th day nor earlier than the opening of business on the 120^th day prior to the scheduled date of the annual meeting of stockholders, and a stockholder’s notice to nominate candidates for election as directors needs to be delivered to us not less than 120 days prior to any meeting of stockholders called for the election of directors. Our Bylaws also specify certain requirements as to the form and content of a stockholders’ notice. These provisions may preclude our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors at our annual meeting of stockholders.

 

LEGAL MATTERS

 

Haynes and Boone, LLP, New York, New York, will pass upon the validity of the securities offered hereby. 

 

EXPERTS

 

The financial statements incorporated in this Prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2023 have been so incorporated in reliance on the report (which contains an explanatory paragraph relating to the Company’s ability to continue as a going concern as described in note 1c to the financial statements) of Kesselman & Kesselman, Certified Public Accountants (Isr.), a member firm of PricewaterhouseCoopers International Limited, an independent registered public accounting firm, given upon the authority of said firm as experts in auditing and accounting.

 

 

INCORPORATION OF CERTAIN INFORMATION BY REFERENCE  

 

We are “incorporating by reference” certain documents we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information in the documents incorporated by reference is considered to be part of this prospectus. Statements contained in documents that we file with the SEC and that are incorporated by reference in this prospectus will automatically update and supersede information contained in this prospectus, including information in previously filed documents or reports that have been incorporated by reference in this prospectus, to the extent the new information differs from or is inconsistent with the old information.

 

	●	Our Annual Report on Form 10-K for the year ended December 31, 2023 filed with the SEC on April 4, 2024;
	●	Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2024 filed with the SEC on May 20, 2024

 

●

Our Current Reports on Form 8-K (other than any portions thereof deemed furnished and not filed) filed with the SEC on March 6, 2024 (excluding Exhibit 99.3 which is deemed furnished and not filed), March 18, 2024, April 15, 2024, May 30, 2024 and July 9, 2024 and the Current Reports on Form 8-K/A filed with the SEC on March 21, 2024 and May 30, 2024; and

 

●

The descriptions of our common stock, preferred stock and incorporated by reference to Exhibit 4.1 to our Annual Report on Form 10-K for the year ended December 31, 2023 filed with the SEC on April 4, 2024, including any amendment or report filed or to be filed for the purpose of updating such descriptions.

 

All documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act until all of the securities to which this prospectus relates has been sold or the offering is otherwise terminated, except in each case for information contained in any such filing where we indicate that such information is being furnished and is not to be considered “filed” under the Exchange Act, will be deemed to be incorporated by reference in this prospectus and any accompanying prospectus supplement and to be a part hereof from the date of filing of such documents.

  

We will provide a copy of the documents we incorporate by reference, at no cost, to any person who receives this prospectus. To request a copy of any or all of these documents, you should write or telephone us at 22 Einstein St., Floor 4, Ness Ziona, 7414003, Israel, Attention: Mr. Jonathan Solomon, or (972) 72-394-2377.

 

 

WHERE YOU CAN FIND ADDITIONAL INFORMATION

 

We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at www.sec.gov. Copies of certain information filed by us with the SEC are also available on our website at www.biomx.com. Our website is not a part of this prospectus and is not incorporated by reference in this prospectus. These references to websites are inactive textual references only, and are not hyperlinks.

 

This prospectus is part of a registration statement we filed with the SEC. This prospectus omits some information contained in the registration statement in accordance with SEC rules and regulations. You should review the information and exhibits in the registration statement for further information on us and our consolidated subsidiary and the securities we are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified by reference to these filings. You should review the complete document to evaluate these statements. You can obtain a copy of the registration statement from the SEC’s website.

 

 

 

 

 

Up to 40 Warrants to Purchase up to 120,148,806 shares of Common Stock

147,735 Shares of Series X Preferred Stock

386,200,774 Shares of Common Stock Consisting of:

Up to 120,148,806 Shares of Common Stock Issuable Upon Exercise of Warrants

Up to 147,735,000 Shares of Common Stock Issuable Upon Conversion of the Series X Preferred Stock

Up to 118,316,968 Outstanding Shares of Common Stock

Offered by the Selling Securityholders Named Herein

 

 

 

 

 

 

 

  

PROSPECTUS

 

Dated July 15, 2024

 

 

 

 

 

 

 

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