As filed with the Securities and Exchange Commission on December 4, 2020April 29, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
BIOMX INC.
(Exact Namename of Registrantregistrant as Specifiedspecified in Its Charter)its charter)
Delaware | 82-3364020 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer | |
Identification |
22 Einstein St., Floor 4
Ness Ziona, Israel 7414003
Telephone: (+972) 72-394-2377
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
7 Pinhas SapirJonathan Solomon
Chief Executive Officer
22 Einstein St., Floor 2
4
Ness Ziona, Israel
+972 723942377
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Marina Wolfson
BiomX Inc.
7 Pinhas Sapir St., Floor 2
Ness Ziona, Israel
+972 723942377
7414003
Telephone: (+972) 72-394-2377
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Alla Digilova, Esq.
Haynes and Boone, LLP
30 Rockefeller Plaza, 26th Floor
New York, NY 10112Tel: (212) 659-7300
Howard E. Berkenblit
Sullivan & Worcester LLPOne Post Office SquareBoston, Massachusetts 02109(617) 338-2800
Approximate date of commencement of proposed sale to the public: public: From time to time after the effective date of this registration statement, as determined by market and other conditions.statement.
If the only securities being registered on this formForm are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
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, other than securities offered only in connection with dividend or interest reinvestment plans, 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, please 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 formForm is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this formForm is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ | Accelerated filer | ☐ |
Non-accelerated filer ☒ | Smaller reporting company | ☒ |
Emerging growth company |
If an emerging growth company, 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. ☐
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered(1) | Amount to be Registered(1)(2) | Proposed Maximum Offering Price per Unit(2)(3) | Proposed Maximum Aggregate Offering Price(1) | Amount of Registration Fee(3) | ||||||||||||
Common Stock, $0.0001 par value | (2) | |||||||||||||||
Preferred Stock | (2) | |||||||||||||||
Debt Securities | (2) | |||||||||||||||
Warrants to purchase Common Stock | (2) | |||||||||||||||
Units | (2) | |||||||||||||||
Total: | $ | 150,000,000 | (3)(4) | $ | 16,365 |
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 registration statement contains:
The base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus supplement to the base prospectus. The Sales Agreement prospectus immediately follows the base prospectus. The $50,000,000 of common stock that may be offered, issued and sold under the Sales Agreement prospectus is included in the $150,000,000 of securities that may be offered, issued and sold by us under the base prospectus. Upon termination of the Sales Agreement, any portion of the $50,000,000 included in the Sales Agreement prospectus that is not sold pursuant to the Sales Agreement will be available for sale in other offerings pursuant to the base prospectus, and if no shares are sold under the Sales Agreement, the full $50,000,000 of securities may be sold in other offerings pursuant to the base prospectus.
The information in this preliminary prospectus is not complete and may be changed. WeThese securities may not sell these securitiesbe sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities, in any statejurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED APRIL 29, 2024
PROSPECTUS
BIOMX INC.
Warrants to Purchase up to 120,148,806 Shares of Common Stock
256,887 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 256,887,000 Shares of Common Stock Issuable Upon Conversion of the Series X Preferred Stock
Up to 9,164,968 Currently 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) Warrants (as defined below) to purchase up to 120,148,806 shares of Common Stock (as defined below), (ii) up to 256,887 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:
up to |
(b) | up to 256,887,000 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; and |
(c) | up to 9,164,968 shares of Common Stock issued pursuant to the Merger Agreement. |
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 Warrants 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.
$150,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may from time to time sell common stock, preferred stock, debt securities, warrants to purchase common stock, and units of two or more of such securities, in one or more offerings for an aggregate initial offering price of $150,000,000. We refer to the common stock, the preferred stock, the debt securities, the warrants to purchase common stock and the units collectively as the securities. This prospectus describes the general manner in which our securitiesthe Offered Securities may be offered using this prospectus. Other than in connection with the exercise of certain outstanding warrants, we will specify in an accompanying prospectus supplement the terms of the securities to be offered and sold. WeIf necessary, the specific manner in which the Offered Securities may sell these securitiesbe offered and sold will be described in one or more supplements to this prospectus. Any prospectus supplement may add, update or through underwriters or dealers, directly to purchasers or through agents. We will set forth the names of any underwriters, dealers or agentschange information contained in an accompanying prospectus supplement.this prospectus. You should carefully read this prospectus, and any accompanying supplementsapplicable prospectus supplement, as well as the documents incorporated by reference herein or therein before you decide to invest in any of theseour 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 stockCommon Stock is tradedcurrently quoted on the NYSE American Stock Market or (“NYSE American, under the symbol “PHGE” and on the Tel Aviv Stock Exchange, or TASE,American”) under the symbol “PHGE.” On November 30, 2020,April 24, 2024, the last reported sale price of our common stockCommon Stock on NYSE American was $6.20$0.34 per share.
Investing in our securities involves risks. See “Risk Factors” on page 3 for a discussion of this prospectus.information that should be considered in connection with the ownership of our securities.
Neither the Securities and Exchange Commission or the SEC, nor any state securities commission has approved or disapproved of these securities or passed upon the adequacydetermined if this prospectus is truthful or accuracy of this prospectus.complete. Any representation to the contrary is a criminal offense.
The date of thisthe prospectus is , 2020.2024.
TABLE OF CONTENTS
You should rely only on the information contained in this prospectus anyor a supplement to this prospectus, supplement andincluding the documentsinformation incorporated herein by reference herein or therein, or to whichreference. Neither we nor the Selling Securityholders have referred you. We have not authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus and any prospectus supplement dois not constitute an offer to sell or a solicitation ofsecurities, and it is not soliciting an offer to purchase, thebuy securities, offered by this prospectus and any prospectus supplement in any jurisdiction to or from any person to whom or from whom it is unlawful to make suchwhere the offer or solicitation of an offer in such jurisdiction.sale is not permitted. You should not assume that the information contained in this prospectus any prospectus supplement or any documentsupplement to this prospectus, whether or not incorporated herein by reference, is accurate as of any date other than the date indicated in the applicable document.those documents.
For investors outside of the United States: Neither we nor any of the deliverySelling Securityholders have done anything that would permit this offering or possession or distribution of this prospectus norin 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 securities pursuant to this prospectus shall, under any circumstances, create any implication that there has been no change in the information set forth or incorporated by reference into this prospectus or in our affairs since the date of this prospectus. Our business, financial condition, results of operations and prospects may have changed since that date.
Our name and logo and the names of our products are our trademarks or registered trademarks. Unless the context otherwise requires, referencesAs used in this prospectus, to “BiomX,”the terms “we,” “us,” and “our” refer tomean BiomX Inc. and itsour wholly-owned Israeli subsidiary, BiomX Ltd. and RondinX Ltd., an Israeli company and wholly-owned subsidiary of BiomX Ltd.subsidiaries, unless otherwise indicated.
i
This summary only highlights the more detailed information appearing elsewhere in this prospectus. As this is a summary, it does not contain all of the information that you should consider in making an investment decision. You should read this entire prospectus carefully, as well as any information incorporated herein by reference, including the information under “Risk Factors” and our financial statements and the related notes, before investing.
This prospectus is part of a registration statement that we filed with the SEC using a “shelf” registration process. Under this shelf registration process, we may, from time to time, sell any combination of the securities described in this prospectus in one or more offerings up to a total dollar amount of $150,000,000. This prospectus describes the securities we may offer and the general manner in which our securitiesthe Selling Securityholders identified in this prospectus, or any of their transferees, may offer from time to time (i) Warrants to purchase up to 120,148,806 shares of Common Stock, (ii) up to 256,887 shares of Series X Preferred Stock, and (iii) up to 386,200,774 shares of Common Stock, of which 120,148,806 are issuable upon exercise of the Warrants, 256,887,000 are issuable upon conversion of the Series X Preferred Stock and 9,164,968 are currently outstanding. If necessary, the specific manner in which the Offered Securities may be offered byand sold will be described in a supplement to this prospectus. Each time we sell securities (other than in connection with the exercise of certain outstanding warrants), we will provide a prospectus, which supplement that will contain specific information about the terms of that offering. We may also add, update or change in the prospectus supplement any of the information contained in this prospectus. To the extent there is a conflict between the information contained in this prospectus and theany applicable prospectus supplement, you should rely on the information in the prospectus supplement, provided that if any statement in one of these documents is inconsistent with a statement in another document having a later date - date—for example, a document incorporated by reference in this prospectus or any prospectus supplement - supplement—the statement in the document having the later date modifies or supersedes the earlier statement.
We areBiomX Inc. is a clinical stage product discovery company developing products using both natural and engineered phage technologies designed to target and destroy bacteria that affect the appearance of skin, as well askill specific harmful bacteria inassociated with chronic diseases, such as inflammatory bowel disease, or IBD, primary sclerosing cholangitis, cystic fibrosis, or CF, atopic dermatitis and colorectal cancer.diabetic foot osteomyelitis, or DFO. Bacteriophage or phage are bacterial, species-specific, strain-limited viruses that infect, amplify and kill the target bacteria and are considered inert to mammalian cells. By developingutilizing proprietary combinations of naturally occurring phage and by creating novel phage using synthetic biology, we develop phage-based therapies intended to address both large-market and orphan diseases.
Since inception in 2015,Based on the urgency of treating the infection (whether acute or chronic), the susceptibility of the target bacteria to phage (e.g. the ability to identify a phage cocktail that would target a broad range of bacterial strains) and other considerations, we have devoted substantially alloffer two phage-based product types:
(1) | Fixed cocktail therapy – in this approach a single product containing a fixed number of selected phages is developed to cover a wide range of bacterial strains, thus allowing treatment of broad patient populations with the same product. Fixed cocktails are developed using our proprietary BOLT platform, in which high throughput screening, directed evolution, and bioinformatic approaches are leveraged to produce an optimal phage cocktail. |
(2) | Personalized therapy – in this approach a large library of phages is developed, of which single optimal phages are personally matched to treat specific patients. Matching optimal phages with patients is carried out using a proprietary phage susceptibility testing, or PST, where multiple considerations are analyzed simultaneously – allowing for an efficient screen of the phage library while maintaining short turnaround times. |
In our resourcestherapeutic programs, we focus on using phage therapy to organizing and staffing the company, raising capital, acquiring rights to or discoveringtarget specific strains of pathogenic bacteria that are associated with diseases. Our phage-based product candidates developingare developed utilizing our technology platforms, securing related intellectual property rights and conducting discovery,BOLT proprietary research and development activities for our product candidates. We do not have any products approved for sale, our products are still in the preclinical and clinical development stages, and we have not generated any revenue from product sales. As we move our product candidates from preclinical to clinical stage and continue with clinical trials, we expect our expenses to increase.
On November 12, 2020, we announced our new BOLT (“BacteriOphage Lead to Treatment”) research and development platform. The BOLT platform enables us to rapidly develop, manufacture and formulate phage therapy candidates targeting particular pathogenic bacteria and incorporates our experience over the past five years with process refinement and implementation of technological advancements. The BOLT platform is unique, employing cutting edge methodologies and capabilities across disciplines including computational biology, microbiology, phage synthetic engineering uniqueof phage and their production bacterial hosts, bioanalytical assay development, manufacturing and formulation, to allow agile and efficient development of natural or engineered phage therapies. For a given indication, the platform will allowcombinations, or cocktails. The cocktail contains phage with complementary features and is optimized for the completion of a clinical proof of concept study in patients, meaning Phase 2 results, within approximately 12-18 months from project initiation (in certain indications the length of clinical proof of concept may be longer depending on the indication, identity ofmultiple characteristics such as broad target bacteria, recruitment rate, cohort size and other factors). Thehost range, ability to move quickly into clinical development is also driven by the strong safety profileprevent resistance, biofilm penetration, stability and ease of naturally-occurring phage, as corroborated by regulatory guidance we received from the U.S. Food and Drug Administration, or the FDA, relating to our IBD program, allowing us to bypass preclinical safety studies and studies in healthy volunteers and to proceed directly to patient studies. The platform allows generation of personalized phage treatments, tailored to target specific bacterial strains in a given patient, allowing us to conduct an initial clinical proof of concept study in patients (Phase 2 results) within approximately 12-18 months of project initiation for many indications, and, in parallel, also the development of an optimized phage therapy candidate with a fixed composition optimized for the treatment of a specific indication for the overall patient population. We are initially utilizing the BOLT platform in our cystic fibrosis and atopic dermatitis programs.
BiomX’s approach is driven by the convergence of several factors: rapidly increasing understanding of phage, including the links between phage behaviors and their genomes; growing evidence that harmful bacteria are present and involved in chronic diseases, such as IBD, that could, in principle, be treated with phage; as well as by a growing number of anecdotal reports from different academic centers of successful compassionate use administration of phages to seriously ill patients who were unresponsive to other therapies. BiomX believes its phage therapeutic product candidates have the ability to treat conditions and diseases by precisely targeting pathogenic bacteria without disrupting other bacteria or the healthy microbiota.manufacturing.
BiomX’sOur goal is to develop multiple products based on the ability of phage to precisely target components of the microbiomeharmful bacteria and on BiomX’sour ability to screen, identify and combine different phage, both naturally occurring and created using synthetic engineering, to develop these treatments
Clinical Developmentstreatments.
On November 12, 2020, we announced initiation of a new phage therapy program in CF addressing chronic respiratory infections caused by Pseudomonas aeruginosa, a main contributor to morbidity and mortality in these patients. Subject to our preparation and submission of an investigational new drug application, or IND, that must take effect, Phase 2 results of a proof of concept clinical study evaluating safety and efficacy in patients are expected in the fourth quarter of 2021.Corporate Information
On November 12, 2020, we also announcedThe mailing address of our principal executive office is 22 Einstein St., Floor 4, Ness Ziona, Israel 7414003 and our telephone number is (+972) 72-394-2377. Our website address is www.biomx.com. The information found on the initiationwebsite is not part of, a new program for development of a topically administered phage-based product targeting Staphylococcus aureus, a bacterium linked to the development and exacerbation of inflammation in atopic dermatitis. Subject to our preparation and submission of an IND that must take effect, Phase 2 results of a proof of concept clinical study evaluating safety and efficacy in patients are expected in the first half of 2022.is not incorporated into, this prospectus.
21
RISK FACTORSABOUT THIS OFFERING
The Selling Securityholders identified in this prospectus are offering on a resale basis a total of (i) Warrants to purchase up to 120,148,806 shares of Common Stock, (ii) up to 256,887 shares of Series X Preferred Stock, and (iii) up to 386,200,774 shares of Common Stock.
Common Stock offered by the Selling Securityholders | Up to 386,200,774 shares. | |
Warrants offered by the Selling Securityholders | Warrants to purchase up to 120,148,806 shares of Common Stock. | |
Series X Preferred Stock offered by the Selling Securityholders | Up to 256,887 shares. | |
Risk factors | Before investing in our securities, you should carefully read and consider the information set forth in “Risk Factors” on page 3. | |
Use of proceeds | We will not receive any proceeds from the offering of the Offered Securities by the Selling Securityholders, except for the Warrants’ exercise price paid for the Common Stock offered hereby and issuable upon the exercise of the Warrants for 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 Warrants, respectively. See “Use of Proceeds” on page 6. | |
Trading market and symbol | The Company’s Common Stock trades on the NYSE American under the symbol “PHGE.” |
An investment in our securities involvescarries a significant risks.degree of risk. In addition to the Risk Factor set forth below, You should carefully consider before you decide to purchase our securities the risk factors below as well as risk factors containedrisks, uncertainties and assumptions discussed under the heading “Risk Factors” in any prospectus supplement and in our filings with the SEC, including our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, our quarterly report on Form 10-Q for2023, which is incorporated herein by reference, as updated or superseded by the quarter ended September 30, 2020, our Current Report on Form 8-K,risks and uncertainties described under similar headings in other documents that are filed on December 4, 2020, as well as all ofafter the information contained in this prospectus, any prospectus supplementdate thereof and the other documents incorporated by reference herein or therein, before you decide to invest in our securities. Our business, prospects, financial condition and resultsinto this prospectus. Any one of operations may be materially and adversely affected as a result of any of such risks. The value of our securities could decline as a result of any of these risks. You could lose all or part of your investment in our securities. The risks and uncertainties we have described are nothas the only ones we face. Additional risks and uncertainties not presently knownpotential to us or that we currently deem immaterial may also affectcause 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 operations.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 summary below provides an overview of manyliquidity of the risks we face. Consistent withtrading market, if any, and future value or trading price, if any, of the foregoing,Series X Preferred Stock or the risks we face include, butWarrants 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 not limited to,beyond our control. Market volatility could significantly harm the following:market for the Series X Preferred Stock or the Warrants, regardless of our financial condition, results of operations, business, prospects or credit quality.
3
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATIONSTATEMENTS
The statements contained in this prospectus any prospectus supplement 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 forward-looking statementsuncertainties and other factors include, among other statements, statements regarding the following: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 |
● | 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 |
● | the ability of our product candidates to demonstrate requisite, |
● | 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 |
● | 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; |
● |
● | 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 |
● | potential security breaches, including cybersecurity incidents; |
● | other factors described in the documents incorporated by reference in this |
The factors discussed herein, including those risks described under the heading “Risk Factors” herein in any prospectus supplement 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 any prospectus supplement 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.
Unless we otherwise indicate in an applicableAll of the Offered Securities offered by the Selling Securityholders pursuant to this prospectus supplement, we currently intend to usewill be sold by the netSelling 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 saleexercise of the securitiesWarrants for research and product development activities, clinical trial activities, manufacturing for clinical trials and for preparing our product candidates for commercialization, marketing and business development, investment in capital equipment and infrastructure and for working capital and other general corporate purposes.
We may set forth additional information on the use of net proceeds from the sale of securities we offer under this prospectus in a prospectus supplement relating to the specific offering. Pending the applicationcash. Out of the net proceeds,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 intend to investwill receive the net proceeds in money market funds and investment securities consistingapplicable cash exercise price paid by the holders of U.S. Treasury notes, or high quality, marketable debt instruments of corporations and government sponsored enterprises subject to any investment policies our investment committee may determine from time to time.the Warrants.
THE SECURITIES WE MAY OFFERSELLING SECURITYHOLDERS
The descriptions(i) Warrants to purchase up to 120,148,806 shares of Common Stock, (ii) up to 256,887 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 securities containedSelling Securityholders identified in this prospectus, together with any applicable prospectus supplement, summarize the material terms and provisions oftable below.
On March 5, 2024, APT entered into the various types of securities that we may offer. We will describe in any applicable prospectus supplement relatingSixth Amendment to any securities the particular terms of the securities offered by that prospectus supplement. If we so indicate in any applicable prospectus supplement,Lease Agreement. Under the terms of the Sixth Amendment to the Lease Agreement, the Company issued warrants 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 share of which is convertible into 1,000 shares of Common Stock, and 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 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 share of which is convertible into 1,000 shares of Common Stock, and 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 5:00p.m. Eastern time on [_____] [__], 2024, each share of Series X Preferred Stock then outstanding will automatically convert into 1,000 shares of Common Stock, subject to the beneficial ownership limitations.
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 April 18, 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. 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 the sale by a Selling Securityholder of all Offered Securities, based on 55,220,077 shares of Common Stock and 256,887 of Series X Preferred Stock outstanding as of April 18, 2024. 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 differdispose 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 terms we have summarized below. We may also include in any prospectus supplement information, where applicable, about material U.S. federal income tax consequences relating toregistration requirements of the securities, andSecurities Act after the securities exchange or market, if any,date on which the securities will be listed.information in the table is presented.
We may sellamend 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 | % | 2,900,201 | 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 | % | 3,055,049 | 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 | % | 3,055,049 | 77,792,224 | 0 | 0 | % | |||||||||||||||||||||||||||||||
AMR Action Fund, SCSp(11) | 3,901,521 | 3,901,521 | 0 | 10,906 | 10,906 | 0 | 0 | % | 786,907 | 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 | 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 | % | 2,267,963 | 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) | 4.8 | % | |||||||||||||||||||||||||||||
OrbiMed Israel Partners Limited Partnership(14) | 2,163,500 | 2,163,500 | 0 | 4,327 | 4,327 | 0 | 0 | % | 5,698,532 | (42) | 6,490,500 | 6,418,896 | (42) | 9.9 | % | |||||||||||||||||||||||||||||
Cystic Fibrosis Foundation(15) | 10,817,500 | 10,817,500 | 0 | 21,635 | 21,635 | 0 | 0 | % | 12,659,024 | (43) | 32,452,500 | 9,330,580 | (43) | 14.7 | % | |||||||||||||||||||||||||||||
CVI Investments, Inc.(16) | 4,327,000 | 4,327,000 | 0 | 8,654 | 8,654 | 0 | 0 | % | 2,900,201 | 12,981,000 | 0 | 0 | % | |||||||||||||||||||||||||||||||
Alyeska Master Fund, LP(17) | 4,327,000 | 4,327,000 | 0 | 8,654 | 8,654 | 0 | 0 | % | 6,067,466 | 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) | 3.1 | % | |||||||||||||||||||||||||||||
ADAR1 Partners, LP(19) | 2,163,500 | 2,163,500 | 0 | 4,327 | 4,327 | 0 | 0 | % | 2,900,201 | 6,490,500 | 0 | 0 | % | |||||||||||||||||||||||||||||||
AIGH Investment Partners, LP(20) | 3,249,000 | 3,249,000 | 0 | 6,498 | 6,498 | 0 | 0 | % | 2,177,664 | 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 | % | 558,659 | 2,500,500 | 0 | 0 | % | |||||||||||||||||||||||||||||||
WVP Emerging Manager Onshore Fund, LLC – Optimized Equity Series(22) | 244,500 | 244,500 | 0 | 489 | 489 | 0 | 0 | % | 163,878 | 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) | 1.3 | % | |||||||||||||||||||||||||||||
Ikarian Healthcare Master Fund, LP(25) | 3,970,500 | 3,970,500 | 0 | 7,941 | 7,941 | 0 | 0 | % | 2,900,201 | 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 | % | 2,900,201 | 3,808,500 | 0 | 0 | % | |||||||||||||||||||||||||||||||
Boothbay Diversified Alpha Master Fund LP(27) | 600,500 | 600,500 | 0 | 1,201 | 1,201 | 0 | 0 | % | 1,801,500 | 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 | % | 3,311,917 | 14,028,000 | 0 | 0 | % | |||||||||||||||||||||||||||||||
Nantahala Capital Partners Limited Partnership(32) | 1,565,000 | 1,565,000 | 0 | 3,130 | 3,130 | 0 | 0 | % | 1,108,458 | 4,695,000 | 0 | 0 | % | |||||||||||||||||||||||||||||||
Pinehurst Partners, L.P. (33) | 1,081,500 | 1,081,500 | 0 | 2,163 | 2,163 | 0 | 0 | % | 766,005 | 3,244,500 | 0 | 0 | % | |||||||||||||||||||||||||||||||
NCP RFM LP(34) | 1,330,500 | 1,330,500 | 0 | 2,661 | 2,661 | 0 | 0 | % | 942,367 | 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) | 1.8 | % | |||||||||||||||||||||||||||||
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) underlying the Series X Preferred Stock 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)-(iii) 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 shares 3,115,000 shares of common stock underlying the Series X Preferred Stock and 1,557,500 shares of common stock underlying the Warrants. 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 1,211,000 shares of common stock underlying the Series X Preferred Stock and 605,500 shares of common stock underlying the Warrants. 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 currently owned, 53,840,000 shares of common stock underlying the Series X Preferred Stock and 20,897,175 shares of common stock underlying the 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 currently owned, 53,840,000 shares of common stock underlying the Series X Preferred Stock and 20,897,175 shares of common stock underlying the 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 currently owned, 10,906,000 shares of common stock underlying the Series X Preferred Stock and 3,901,521 shares of common stock underlying the 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 currently owned, 31,431,000 shares of common stock underlying the Series X Preferred Stock and 11,244,126 shares of common stock underlying the 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 underlying the Series X Preferred Stock and 1,298,000 shares of common stock underlying the Warrants. 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 4,327,000 shares of common stock underlying the Series X Preferred Stock and 2,163,500 shares of common stock underlying the Warrants. 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 21,635,000 shares of common stock underlying the Series X Preferred Stock and 10,817,500 shares of common stock underlying the Warrants. |
(16) | Registered shares consist of 8,654,000 shares of common stock underlying the Series X Preferred Stock and 4,327,000 shares of common stock underlying the Warrants. 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 underlying the Series X Preferred Stock and 4,327,000 shares of common stock underlying the Warrants. |
(18) | Registered shares consist of 432,000 shares of common stock underlying the Series X Preferred Stock and 216,000 shares of common stock underlying the Warrants. Abraham Sofaer has sole voting and investment power over these securities. |
(19) | Registered shares consist of 4,327,000 shares of common stock underlying the Series X Preferred Stock and 2,163,500 shares of common stock underlying the Warrants. Daniel Pawel Schneeberger has sole voting and investment power over these securities. |
(20) | Registered shares consist of 6,498,000 shares of common stock underlying the Series X Preferred Stock and 3,249,000 shares of common stock underlying the Warrants. Orin Hirschman has sole voting and investment power over these securities. |
(21) | Registered shares consist of 1,667,000 shares of common stock underlying the Series X Preferred Stock and 833,500 shares of common stock underlying the Warrants. Orin Hirschman has sole voting and investment power over these securities. |
(22) | Registered shares consist of 489,000 shares of common stock underlying the Series X Preferred Stock and 244,500 shares of common stock underlying the Warrants. Orin Hirschman has sole voting and investment power over these securities. |
(23) | Registered shares consist of 4,327,000 shares of common stock underlying the Series X Preferred Stock and 2,163,500 shares of common stock underlying the Warrants. David Modest has sole voting and investment power over these securities. |
(24) | Registered shares consist of 649,000 shares of common stock underlying the Series X Preferred Stock and 324,500 shares of common stock underlying the Warrants. Hendrik Brulleman has sole voting and investment power over these securities. |
(25) | Registered shares consist of 7,941,000 shares of common stock underlying the Series X Preferred Stock and 3,970,500 shares of common stock underlying the Warrants. Neil Shahrestani has sole voting and investment power over these securities. |
(26) | Registered shares consist of 2,539,000 shares of common stock underlying the Series X Preferred Stock and 1,269,500 shares of common stock underlying the Warrants. |
(27) | Registered shares consist of 1,201,000 shares of common stock underlying the Series X Preferred Stock and 600,500 shares of common stock underlying the Warrants. |
(28) | Registered shares consist of 1,406,000 shares of common stock underlying the Series X Preferred Stock and 703,000 shares of common stock underlying the Warrants. Richard Abbe has sole voting and investment power over these securities. |
(29) | Registered shares consist of 757,000 shares of common stock underlying the Series X Preferred Stock and 378,500 shares of common stock underlying the Warrants. Kim Page has sole voting and investment power over these securities. |
(30) | Registered shares consist of 1,298,000 shares of common stock underlying the Series X Preferred Stock and 649,000 shares of common stock underlying the Warrants. 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 underlying the Series X Preferred Stock and 4,676,000 shares of common stock underlying the Warrants. 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 underlying the Series X Preferred Stock and 1,565,000 shares of common stock underlying the Warrants. 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 underlying the Series X Preferred Stock and 1,081,500 shares of common stock underlying the Warrants. 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 underlying the Series X Preferred Stock and 1,330,500 shares of common stock underlying the Warrants. 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 underlying the Series X Preferred Stock and 108,000 shares of common stock underlying the Warrants. Norm Gitis has sole voting and investment power over these securities. |
(36) | Registered shares consist of 1,298,000 shares of common stock underlying the Series X Preferred Stock and 649,000 shares of common stock underlying the Warrants. Chaim Davis has sole voting and investment power over these securities. |
(37) | Registered shares consist of 4,327,000 shares of common stock underlying the Series X Preferred Stock and 2,163,500 shares of common stock underlying the Warrants. Laurence Lytton has sole voting and investment power over these securities. |
(38) | Registered shares consist of 6,666,667 shares of common stock underlying the Warrants. 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 the Warrants. Laidlaw & Co. (UK) Ltd., a registered broker-dealer, acted as placement agent for the PIPE. |
(40) | Consists of Placement Agent Warrants. 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 3,876,250 shares of common stock, 9,280,408 shares of common stock underlying pre-funded warrants and 375,000 shares of common stock underlying other warrants, in each case owned prior to the Merger. |
(43) | Consists of 4,552,315 shares of common stock and 4,778,265 shares of common stock underlying other warrants 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 Warrants. Alexandria Venture Investments, LLC, a Delaware limited liability company, is an affiliate of the Landlord. |
(48) | Consists of warrants 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. |
We are registering a total of (i) Warrants to purchase up to 120,148,806 shares of Common Stock, (ii) up to 256,887 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 offerings,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 securities:methods when selling Offered Securities:
● |
● |
● |
● |
● | 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 |
● | 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 |
● |
The total initialSelling 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 if such short sale takes place after the date that this Registration Statement is declared effective by the Commission, the Selling Securityholders 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 issue in these offerings will not exceed $150,000,000.be entitled to contribution.
7
DESCRIPTION OF CAPITAL STOCKSECURITIES TO BE REGISTERED
The following summary is a description of our Common Stock, Series X Preferred Stock and Warrants summarizes the material terms and provisions of our share capital. We encourage youCommon Stock, Series X Preferred Stock, Merger Warrants, Private Placement Warrants and Placement Agent Warrants. The following description does not purport to read our Amendedbe complete and Restatedis subject to, and qualified in its entirety by, BiomX’s Certificate of Incorporation, as amended, or ourBylaws, and Certificate of Incorporation,Designation, each as may be amended, which are incorporated by reference to Exhibits 3.1, 3.2 and Amended and Restated By-laws, or our Bylaws, which have been3.3, respectively, of BiomX’s Annual Report on Form 10-K for the year ended December 31, 2023, as filed with the SEC as well ason 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 [_____] [__], 2024 with the SEC, and by applicable provisionslaw. The terms of the General Corporation Law of the State ofBiomX’s Common Stock, Series X Preferred Stock and Warrants may also be affected by Delaware or the DGCL, for more information.law.
As of November 30, 2020, ourOur authorized capital stock consists of 60,000,000[ ] shares of common stock, of which there were 23,173,378 shares outstanding as of September 30, 2020,Common Stock, and 1,000,000 shares of preferred stock, none of which 256,888 shares are outstanding. The following statements set forth the material terms of our capital stock; however, reference is made to the more detailed provisions of, and these statements are qualified in their entirety by reference to, our Certificate of Incorporation and Bylaws, copies of which are referenceddesignated as exhibits herein, and the provisions of the DGCL. Series X Preferred Stock.
Common Stock
Our holdersHolders of record of our common stockCommon Stock are entitled to one vote for each share held on all matters to be voted on by stockholders. Our stockholdersThe 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.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 therefortherefor.
We have not paid any cash dividends on our common stockCommon 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
There are no shares of preferred stock outstanding. 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.Common Stock. In addition, the preferred stock could be utilized as a method of discouraging, delaying or preventing a change in control of us. Although
Series X Preferred Stock
We have 256,887 shares of Series X Non-Voting Convertible Preferred Stock outstanding, convertible into an aggregate of 256,887,000 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 will automatically convert into 1,000 shares of Common Stock on [_______], 2024, 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 currently intend to issuelist the Series X Preferred Stock on any shares of preferred stock, we reserve the right to do so in the future. No shares of preferred stock are being issuednational securities exchange or registered hereunder.
Transfer Agent
nationally recognized trading system. The transfer agent and registrar for our shares of common stockSeries X Preferred Stock is Continental Stock Transfer & Trust Company, 17 Battery Place,Company. The transfer agent and registrar’s address is 1 State Street, 30th Floor, New York, New York 10004.NY 10004-1561.
Merger Warrants
The 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 Warrants
The Landlord Warrants are 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 Warrants are identical to those of the Merger Warrants. There is no established public trading market for the Landlord Warrants and we do not intend to list the Landlord Warrants on any national securities exchange or nationally recognized trading system.
Private Placement Warrants
The 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 [_______] [__], 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 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 |
● | 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 |
● | 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 Directorsdirectors 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.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 90th day nor earlier than the opening of business on the 120th 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.
9
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we may include in any applicable prospectus supplement, summarizes the material terms and provisions of the debt securities we may offer under this prospectus. While the terms summarized below will apply generally to any debt securities that we may offer, we will describe the particular terms of any series of debt securities in more detail in the applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of any debt securities offered under that prospectus supplement may differ from the terms we describe below.
We may issue debt securities either separately, or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Debt securities may be our senior, senior subordinated or subordinated obligations and, unless otherwise specified in a supplement to this prospectus, the debt securities will be our direct, unsecured obligations and may be issued in one or more series.
The debt securities will be issued under an indenture between us and a trustee to be named in the applicable indenture, or the indenture. We have summarized select portions of the indenture below. The summary is not complete. The form of the indenture has been filed as an exhibit to the registration statement of which this prospectus forms a part and you should read the indenture for provisions that may be important to you. Capitalized terms used in the summary and not defined herein have the meanings specified in the indenture.
As of November 30, 2020, we have no outstanding debt securities.
As used in this section only, “BiomX,” “we,” “our” or “us” refer to BiomX Inc., excluding our subsidiaries, unless expressly stated or the context otherwise requires.
General
The terms of each series of debt securities will be established by or pursuant to a resolution of our Board of Directors and set forth or determined in the manner provided in a resolution of our Board of Directors, by a supplemental indenture or an Officer’s Certificate. The particular terms of each series of debt securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet).
We can issue an unlimited amount of debt securities under the indenture that may be in one or more series with the same or various maturities, at par, at a premium, or at a discount. We will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series of debt securities being offered, the aggregate principal amount and the following terms of such debt securities, if applicable:
We may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate the purchase price of any debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and any premium and interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will provide you with information on the restrictions, elections, general tax considerations, specific terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
Transfer and Exchange
Each debt security will be represented by either one or more global securities registered in the name of The Depository Trust Company, or the Depositary, or a nominee of the Depositary (we will refer to any debt security represented by a global debt security as a “book-entry debt security”), or a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated security as a “certificated debt security”) as set forth in the applicable prospectus supplement. Except as set forth under the heading “Global Debt Securities” below, book-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities. You may transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms of the indenture. No service charge will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
You may effect the transfer of certificated debt securities and the right to receive the principal of, premium and interest on certificated debt securities only by surrendering the certificate representing those certificated debt securities and either reissuance by us or the trustee of the certificate to the new holder or the issuance by us or the trustee of a new certificate to the new holder.
Global Debt Securities and Book-Entry System. Each global debt security representing book-entry debt securities will be deposited with, or on behalf of, the Depositary, and registered in the name of the Depositary or a nominee of the Depositary. Please see “Global Debt Securities.”
Covenants
We will set forth in the applicable prospectus supplement any restrictive covenants applicable to any issue of debt securities.
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions which may afford holders of the debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in control) which could adversely affect holders of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of our properties and assets to any person (a “successor person”) unless:
Notwithstanding the above, any of our subsidiaries may consolidate with, merge into or transfer all or part of its properties to us.
Events of Default
“Event of Default” means with respect to any series of debt securities, any of the following:
No Event of Default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) will necessarily constitute an Event of Default with respect to any other series of debt securities. The occurrence of certain Events of Default or an acceleration under the indenture may constitute an event of default under certain indebtedness of ours or our subsidiaries outstanding from time to time.
We will provide the trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what action we are taking or propose to take in respect thereof.
If an Event of Default with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than a majority in principal amount of the outstanding debt securities of that series may, by a notice in writing to us (and to the trustee if given by the holders), declare to be due and payable immediately the principal of (or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) and accrued and unpaid interest, if any, on all debt securities of that series. In the case of an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder of outstanding debt securities. At any time after a declaration of acceleration with respect to debt securities of any series has been made, but before a judgment or decree for payment of the money due has been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt securities of that series may rescind and annul the acceleration if all Events of Default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities of that series, have been cured or waived as provided in the indenture. We refer you to the prospectus supplement relating to any series of debt securities that are discount securities for the particular provisions relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an Event of Default.
The indenture provides that the trustee may refuse to perform any duty or exercise any of its rights or powers under the indenture unless the trustee receives indemnity satisfactory to it against any cost, liability or expense which might be incurred by it in performing such duty or exercising such right or power. Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of that series.
No holder of any debt security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
Notwithstanding any other provision in the indenture, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, premium and any interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment.
The indenture requires us, within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. If a Default or Event of Default occurs and is continuing with respect to the securities of any series and if it is known to a responsible officer of the trustee, the trustee shall mail to each Securityholder of the securities of that series notice of a Default or Event of Default within 90 days after it occurs or, if later, after a responsible officer of the trustee has knowledge of such Default or Event of Default. The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any Default or Event of Default (except in payment on any debt securities of that series) with respect to debt securities of that series if the trustee determines in good faith that withholding notice is in the interest of the holders of those debt securities.
Modification and Waiver
We and the trustee may modify, amend or supplement the indenture or the debt securities of any series without the consent of any holder of any debt security:
We may also modify and amend the indenture with the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series affected by the modifications or amendments. We may not make any modification or amendment without the consent of the holders of each affected debt security then outstanding if that amendment will:
Except for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities of that series waive our compliance with provisions of the indenture. The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all the debt securities of such series waive any past default under the indenture with respect to that series and its consequences, except a default in the payment of the principal of, premium or any interest on any debt security of that series; provided, however, that the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, we may be discharged from any and all obligations in respect of the debt securities of any series (subject to certain exceptions). We will be so discharged upon the irrevocable deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money or U.S. government obligations in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred.
Defeasance of Certain Covenants. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, upon compliance with certain conditions:
The conditions include:
No Personal Liability of Directors, Officers, Employees or Securityholders
None of our past, present or future Directors, officers, employees or securityholders, as such, will have any liability for any of our obligations under the debt securities or the indenture or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a debt security, each holder waives and releases all such liability. This waiver and release is part of the consideration for the issue of the debt securities. However, this waiver and release may not be effective to waive liabilities under U.S. federal securities laws, and it is the view of the SEC that such a waiver is against public policy.
Global Debt Securities
We may issue the debt securities of a series in whole or in part in the form of one or more registered global securities that we will deposit with a depositary or with an nominee for a depositary identified in the applicable prospectus supplement and registered in the name of such depositary or nominee. In such case, we will issue one or more registered global securities denominated in an amount equal to the aggregate principal amount of all of the debt securities of the series to be issued and represented by such registered global security or securities.
Unless and until it is exchanged in whole or in part for debt securities in definitive registered form, a registered global security may not be transferred except as a whole:
The prospectus supplement relating to a series of debt securities will describe the specific terms of the depositary arrangement with respect to any portion of such series represented by a registered global security. We currently anticipate that the following provisions will apply to all depositary arrangements for debt securities:
The laws of some states may require that certain purchasers of securities take physical delivery of the securities in definitive form. These laws may limit the ability of those persons to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary for a registered global security, or its nominee, is the registered owner of the registered global security, the depositary, or the nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by the registered global security for all purposes under the applicable indenture. Except as set forth below, owners of beneficial interests in a registered global security:
Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary or the registered global security and, if the person is not a participant, on the procedures of a participant through which the person owns its interest, to exercise any rights of a holder under the applicable indenture.
We understand that under currently existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under an indenture, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take the action, and those participants would authorize beneficial owners owning through those participants to give or take the action or would otherwise act upon the instructions of beneficial owners holding through them.
We will make payments of principal of and premium, if any, and interest, if any, on debt securities represented by a registered global security registered in the name of a depositary or its nominee to the depositary or its nominee, as the case may be, as the registered owners of the registered global security. Neither we nor any trustee or any other agent of us or a trustee will be responsible or liable for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
We expect that the depositary for any debt securities represented by a registered global security, upon receipt of any payments of principal and premium, if any, and interest, if any, in respect of the registered global security, will immediately credit participants' accounts with payments in amounts proportionate to their respective beneficial interests in the registered global security as shown on the records of the depositary. We also expect that standing customer instructions and customary practices will govern payments by participants to owners of beneficial interests in the registered global security held through the participants, as is now the case with the securities held for the accounts of customers in bearer form or registered in "street name." We also expect that any of these payments will be the responsibility of the participants.
No registered global security may be exchanged in whole or in part for debt securities registered, and no transfer of a registered global security in whole or in part may be registered, in the name of any person other than the depositary for such registered global security, unless (1) such depositary notifies us that it is unwilling or unable to continue as depositary for such registered global security or has ceased to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, or the Exchange Act, and we fail to appoint an eligible successor depositary within 90 days, (2) an event of default shall have occurred and be continuing with respect to such debt securities, or (3) circumstances, if any, exist in addition to or in lieu of the foregoing as have been specified for that purpose in an applicable prospectus supplement. In any such case, the affected registered global security may be exchanged in whole or in part for debt securities in definitive form and the applicable trustee will register any such debt securities in such name or names as such depositary directs.
We currently anticipate that certain registered global securities will be deposited with, or on behalf of, The Depository Trust Company, New York, New York, or DTC, and will be registered in the name of Cede & Co., as the nominee of DTC. DTC has advised us that DTC is a limited-purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code and a "clearing agency" registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities that its participants, or direct participants, deposit with DTC. DTC also facilitates the post-trade settlement among direct participants of sales and other securities transactions in deposited securities, through electronic computerized book-entry transfers and pledges between direct participants' accounts. This eliminates the need for physical movement of securities certificates. Direct participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. DTC is a wholly owned subsidiary of The Depository Trust & Clearing Corporation, or DTCC. DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly.
The rules applicable to DTC and its direct participants are on file with the SEC. The information in this paragraph concerning DTC and DTC's book-entry system has been obtained from sources that we believe to be reliable, but we take no responsibility for the accuracy thereof. In the event registered global securities are deposited with, or on behalf of, a depositary other than DTC, we will describe additional or differing terms of the depositary arrangements in the applicable prospectus supplement relating to that particular series of debt securities.
We may also issue bearer debt securities of a series in the form of one or more global securities, referred to as "bearer global securities." We currently anticipate that we will deposit these bearer global securities with a common depositary for Euroclear Bank S.A./N.V. and Clearstream Banking, société anonyme, or with a nominee for the depositary identified in the prospectus supplement relating to that series. The prospectus supplement relating to a series of debt securities represented by a bearer global security will describe the specific terms and procedures, including the specific terms of the depositary arrangement and any specific procedures for the issuance of debt securities in definitive form in exchange for a bearer global security, with respect to the portion of the series represented by a bearer global security.
Neither we nor any trustee assumes any responsibility for the performance by DTC or any other depositary or its participants of their respective obligations, including obligations that they have under the rules and procedures that govern their operations.
Governing Law
The indenture and the debt securities, including any claim or controversy arising out of or relating to the indenture or the securities, will be governed by the laws of the State of New York.
The indenture will provide that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the indenture, the debt securities or the transactions contemplated thereby.
The indenture will provide that any legal suit, action or proceeding arising out of or based upon the indenture or the transactions contemplated thereby may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York, and we, the trustee and the holder of the debt securities (by their acceptance of the debt securities) irrevocably submit to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The indenture will further provide that service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth in the indenture will be effective service of process for any suit, action or other proceeding brought in any such court. The indenture will further provide that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the courts specified above and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum.
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The following description, together with the additional information we may include in any applicable prospectus supplement, summarizes the material terms and provisions of the warrants that we may offer under this prospectus and the related warrant agreements and warrant certificates. While the terms summarized below will apply generally to any warrants that we may offer, we will describe the particular terms of any series of warrants (and any securities issuable upon exercise of such warrants) in more detail in the applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of any warrants offered under that prospectus supplement may differ from the terms we describe below. Specific warrant agreements will contain additional important terms and provisions and will be incorporated by reference as an exhibit to the registration statement.
General
We may issue warrants for the purchase of common stock in one or more series. We may issue warrants independently or together with common stock, and the warrants may be attached to or separate from the common stock. As of November 30, 2020, we have an aggregate of 10,501,971 warrants outstanding to purchase an aggregate of up to 7,001,971 shares of common stock with a weighted average exercise price of $10.84, certain of which are included in our outstanding units, certain of which were issued in private placements and certain of which are traded on the NYSE American under the symbol “PHGE.WS,” or the Outstanding Warrants. However, unless set forth in the applicable prospectus supplement, any warrants offered pursuant to this prospectus will be of a separate class and have different terms from the Outstanding Warrants.
We will evidence each series of warrants by warrant certificates that we will issue under a separate agreement or by warrant agreements that we will enter into directly with the purchasers of the warrants. If we evidence warrants by warrant certificates, we will enter into a warrant agreement with a warrant agent. We will indicate the name and address of the warrant agent, if any, in the applicable prospectus supplement relating to a particular series of warrants.
We will describe in the applicable prospectus supplement the terms of the series of warrants, including:
Before exercising their warrants, holders of warrants will not have any of the rights of holders of the common stock purchasable upon such exercise, including the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
Exercise of Warrants
Each warrant will entitle the holder to purchase the number of shares of common stock that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to 5:00 P.M., Eastern U.S. time, on the expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering to the warrant agent or us the warrant certificate or warrant agreement representing the warrants to be exercised together with specified information, and by paying the required amount to the warrant agent or us in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate or in the warrant agreement and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver to the warrant agent or us in connection with such exercise.
Upon receipt of the required payment and the warrant certificate or the warrant agreement, as applicable, properly completed and duly executed at the corporate trust office of the warrant agent, if any, at our offices or at any other office indicated in the applicable prospectus supplement, we will issue and deliver the common stock or other securities purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate or warrant agreement are exercised, then we will issue a new warrant certificate or warrant agreement for the remaining amount of warrants.
Enforceability of Rights by Holders of Warrants
If we appoint a warrant agent, any warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
No prospectus supplement will be delivered in connection with the issuance of these shares of common stock pursuant to the exercise of such warrants.
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We may issue, in one or more series, units consisting of common stock, preferred stock, debt securities and/or warrants for the purchase of common stock and/or preferred stock, in any combination. While the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below. As of November 30, 2020, we are authorized to issue 7,000,000 units, of which 6,019 units are outstanding, each consisting of one share of common stock and one Outstanding Warrant, or the Outstanding Units. However, unless set forth in the applicable prospectus supplement, any units offered pursuant to this prospectus will be of a separate class and have different terms from the Outstanding Units.
We will file as exhibits to a prospectus supplement, or will incorporate by reference from reports that we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplement related to the particular series of units that we may offer under this prospectus and the complete unit agreement and any supplemental agreements that contain the terms of the units.
Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable prospectus supplement the terms of the series of units, including:
The provisions described in this section, as well as those described under “Description of Capital Stock”, “Description of Debt Securities” and “Description of Warrants” will apply to each unit and to any common stock, preferred stock, debt security or warrant included in each unit, respectively.
We may issue units in such amounts and in such distinct series as we determine.
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We may sell the securities being offered hereby in one or more of the following ways from time to time:
The securities that we distribute by any of these methods may be sold, in one or more transactions, at:
The accompanying prospectus supplement will describe the terms of the offering of our securities, including:
If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of the sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all the securities offered by the prospectus supplement. We may change from time to time the public offering price and any discounts or concessions allowed or reallowed or paid to dealers.
If we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. The names of the dealers and the terms of the transaction will be specified in a prospectus supplement.
We may sell the securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, any agent will act on a best-efforts basis for the period of its appointment.
We may also sell securities pursuant to an “equity line of credit”. In such event, we will enter into a common stock purchase agreement with the purchaser to be named therein, which will be described in a Current Report on Form 8-K that we will file with the SEC. In that Form 8-K, we will describe the total amount of securities that we may require the purchaser to purchase under the purchase agreement and the other terms of purchase, and any rights that the purchaser is granted to purchase securities from us. In addition to our issuance of shares of common stock to the equity line purchaser pursuant to the purchase agreement, this prospectus (and the applicable prospectus supplement or post-effective amendment) also covers the resale of those shares from time to time by the equity line purchaser to the public. The equity line purchaser will be considered an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act. Its resales may be effected through a number of methods, including without limitation, ordinary brokerage transactions and transactions in which the broker solicits purchasers and block trades in which the broker or dealer so engaged will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction. The equity line purchaser will be bound by various anti-manipulation rules of the SEC and may not, for example, engage in any stabilization activity in connection with its resales of our securities and may not bid for or purchase any of our securities or attempt to induce any person to purchase any of our securities other than as permitted under the Exchange Act.
We may sell our securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of our common stock, and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We may provide underwriters and agents with indemnification against civil liabilities related to offerings pursuant to this prospectus, including liabilities under the Securities Act, or contribution with respect to payments that the underwriters or agents may make with respect to these liabilities. Underwriters and agents may engage in transactions with, or perform services for, us in the ordinary course of business. We will describe such relationships in the prospectus supplement naming the underwriter or agent and the nature of any such relationship.
Rules of the SEC may limit the ability of any underwriters to bid for or purchase securities before the distribution of the shares of common stock is completed. However, underwriters may engage in the following activities in accordance with the rules:
Similar to other purchase transactions, an underwriter’s purchases to cover the syndicate short sales or to stabilize the market price of our common stock may have the effect of raising or maintaining the market price of our common stock or preventing or mitigating a decline in the market price of our common stock. As a result, the price of the shares of our common stock may be higher than the price that might otherwise exist in the open market. The imposition of a penalty bid might also have an effect on the price of shares if it discourages resales of the shares.
If commenced, the underwriters may discontinue any of these activities at any time.
Our common stock is traded on NYSE American and on TASE. One or more underwriters may make a market in our common stock, but the underwriters will not be obligated to do so and may discontinue market making at any time without notice. We cannot give any assurance as to liquidity of the trading market for our common stock.
Any underwriters who are qualified market makers on NYSE American may engage in passive market making transactions in that market in the common stock in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the common stock. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
Sullivan & WorcesterHaynes and Boone, LLP, Boston, Massachusetts, passedNew York, New York, will pass upon the validity of the securities offered hereby. Additional legal matters may be passed upon for any underwriters, dealers or agents by counsel that we will name in the applicable prospectus supplement.
The financial statements incorporated in this prospectusProspectus by reference from ourto the Annual Report on Form 10-K for the year ended December 31, 20192023 have been audited by Brightman Almagor Zoharso 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 & Co.Kesselman, Certified Public Accountants (Isr.), a Firm in the Deloitte Global Network,member firm of PricewaterhouseCoopers International Limited, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such financial statements have been so incorporated in reliancegiven upon the reportauthority of suchsaid firm given upon their authority as experts in accountingauditing and auditing.accounting.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-3 under the Securities Act with the SEC with respect to the shares of our common stock, preferred stock, debt securities, warrants and units offered through this prospectus. This prospectus is filed as a part of that registration statement and does not contain all of the information contained in the registration statement and exhibits. We refer you to our registration statement and each exhibit attached to it for a more complete description of matters involving us, and the statements we have made in this prospectus are qualified in their entirety by reference to these additional materials.
We are subject to the reporting and information requirements of the Exchange Act and as a result file periodic reports and other information with the SEC. You can review our SEC filings and the registration statement by accessing the SEC’s internet site at www.sec.gov. We maintain a corporate website at www.biomx.com. Information contained on, or that can be accessed through, our website does not constitute a part of this prospectus. We have included our website address in this prospectus solely as an inactive textual reference.
INCORPORATION OF DOCUMENTSCERTAIN 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.
We have filed or may file the following documents with the SEC. These documents are incorporated herein by reference as of their respective dates of filing:
● | Our Annual Report on Form 10-K for the year ended December 31, |
● | Our |
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All documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (1) after the date of the filing of the registration statement of which this prospectus forms a part and prior to its effectiveness and (2) 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 7 Pinhas Sapir22 Einstein St., Floor 2,4, Ness Ziona, 7414003, Israel, Attention: Ms. Marina Wolfson,Mr. Jonathan Solomon, or +972 723942377, respectively.(972) 72-394-2377.
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The information contained in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Up to $50,000,000
Common Stock
We have entered into an Open Market Sale AgreementSM, or sales agreement, with Jefferies LLC, or Jefferies, dated December 4, 2020, relating to the sale of shares of our common stock offered by this prospectus and the accompanying prospectus. In accordance with the terms of the sales agreement, we may offer and sell shares of our common stock having an aggregate offering price of up to $50 million from time to time through Jefferies acting as sales agent, at our discretion.
Our common stock is listed on the NYSE American Stock Market, NYSE American, under the symbol “PHGE” and on the Tel Aviv Stock Exchange, TASE, under the symbol “PHGE.” On November 30, 2020, the last reported sale price of our common stock on the NYSE American was $6.20 per share.
Sales of our common stock, if any, under this prospectus will be made by any method permitted that is deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, or the Securities Act. Jefferies is not required to sell any specific number or dollar amount of securities but will act as a sales agent using commercially reasonable efforts consistent with its normal trading and sales practices, on mutually agreed terms between Jefferies and us. Our common stock to which this prospectus relates will be sold through Jefferies on any given day. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
Jefferies will be entitled to compensation at a commission rate equal to 3.0% of the gross proceeds of any shares of common stock sold under the sales agreement. In connection with the sale of the common stock on our behalf, Jefferies will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of Jefferies will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to Jefferies with respect to certain liabilities, including liabilities under the Securities Act. See “Plan of Distribution” beginning on page 14 regarding the compensation to be paid to Jefferies.
Investing in our securities involves significant risks. Please read the information contained in or incorporated by reference under the heading “Risk Factors” beginning on page 10 of this prospectus, and under similar headings in other documents filed with the Securities and Exchange Commission and incorporated by reference into this prospectus and the accompanying prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus or the accompanying prospectus. Any representation to the contrary is a criminal offense.
Jefferies
The date of this prospectus is , 2020
TABLE OF CONTENTS
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This prospectus relates to the offering of our common stock. Before buying any of the common stock that we are offering, we urge you to carefully read this prospectus, together with the accompanying base prospectus and the information incorporated by reference as described under the headings “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” in this prospectus, and any free writing prospectus, if eligible, or prospectus that we have authorized for use in connection with this offering. These documents contain important information that you should consider when making your investment decision.
This prospectus describes the terms of this offering of common stock and also adds to and updates information contained in the documents incorporated by reference into this prospectus. To the extent there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in any document incorporated by reference into this prospectus that was filed with the Securities and Exchange Commission, or SEC, before the date of this prospectus, on the other hand, you should rely on the information in this prospectus. If any statement in one of these documents is inconsistent with a statement in another document having a later date — for example, a document incorporated by reference into this prospectus — the statement in the document having the later date modifies or supersedes the earlier statement.
You should rely only on the information contained in or incorporated by reference into this prospectus and the accompanying prospectus. We have not, and Jefferies has not, authorized anyone to provide you with information that is different. This prospectus is not an offer to sell or solicitation of an offer to buy our securities in any circumstances under which the offer or solicitation is unlawful. We are offering to sell, and seeking offers to buy, our securities only in jurisdictions where offers and sales are permitted. You should not assume that the information we have included in this prospectus or the accompanying prospectus is accurate as of any date other than the date of this prospectus or the accompanying prospectus, respectively, or that any information we have incorporated by reference is accurate as of any date other than the date of the document incorporated by reference, regardless of the time of delivery of this prospectus or of any of our securities. Our business, financial condition, results of operations and prospects may have changed since those dates.
In this prospectus and the accompanying prospectus, unless otherwise indicated, the terms “BiomX,” “we,” “us” and “our” mean BiomX Inc. and its wholly-owned Israeli subsidiary, BiomX Ltd. and RondinX Ltd., an Israeli company and wholly-owned subsidiary of BiomX Ltd.
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WHERE YOU CAN FIND MOREADDITIONAL 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 referencereferences 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 and the accompanying prospectus omitomits 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 and the accompanying 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.
INCORPORATION OF CERTAIN DOCUMENTS 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.
We have filed or may file the following documents with the SEC. These documents are incorporated herein by reference as of their respective dates of filing:
All documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (1) after the date of the filing of the registration statement of which this prospectus forms a part and prior to its effectiveness and (2) 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 7 Pinhas Sapir St., Floor 2, Ness Ziona, 7414002, Israel, Attention: Ms. Marina Wolfson, or +972 723942377, respectively.
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Cautionary Statement REGARDING FORWARD-LOOKING INFORMATION
The statements contained in this prospectus, the accompanying 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 forward-looking statements include, among other statements, statements regarding the following:
The factors discussed herein, including those risks described under the heading “Risk Factors” herein, in the accompanying prospectus 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, the accompanying 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.
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere or incorporated by reference into this prospectus and the accompanying prospectus. This summary does not contain all of the information that you should consider before investing in our securities. You should carefully read the entire prospectus and the accompanying prospectus, including the “Risk Factors” sections, starting on page 10 of this prospectus, page 3 of the accompanying prospectus, and in our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, our Quarterly Report on Form 10-Q for the quarter ended September 30, 2020 and our Current Report on Form 8-K filed on December 4, 2020, as well as the financial statements and the other information incorporated by reference herein, before making an investment decision.
Our Company
We are a clinical company developing products using both natural and engineered phage technologies designed to target and destroy bacteria that affect the appearance of skin, as well as harmful bacteria in chronic diseases, such as inflammatory bowel disease, or IBD, primary sclerosing cholangitis, cystic fibrosis, or CF, atopic dermatitis and colorectal cancer. Bacteriophage or phage are viruses that target bacteria and are considered inert to mammalian cells. By developing proprietary combinations of naturally occurring phage and by creating novel phage using synthetic biology, we develop phage-based therapies intended to address large-market and orphan diseases.
Since inception in 2015, we have devoted substantially all our resources to organizing and staffing the company, raising capital, acquiring rights to or discovering product candidates, developing our technology platforms, securing related intellectual property rights, and conducting discovery, research and development activities for our product candidates. We do not have any products approved for sale, our products are still in the preclinical and clinical development stages, and we have not generated any revenue from product sales. As we move our product candidates from preclinical to clinical stage and continue with clinical trials, we expect our expenses to increase.
On November 12, 2020, we announced our new BOLT (“BacteriOphage Lead to Treatment”) research and development platform. The BOLT platform enables us to rapidly develop, manufacture and formulate phage therapy candidates targeting particular pathogenic bacteria and incorporates our experience over the past five years with process refinement and implementation of technological advancements. The BOLT platform is unique, employing cutting edge capabilities across disciplines including computational biology, microbiology, phage synthetic engineering, unique assay development, manufacturing and formulation, to allow agile and efficient development of phage therapies. For a given indication, the platform will allow for the completion of a clinical proof of concept study in patients, meaning Phase 2 results, within approximately 12-18 months from project initiation (in certain indications the length of clinical proof of concept may be longer depending on the indication, identity of target bacteria, recruitment rate, cohort size and other factors). The ability to move quickly into clinical development is also driven by the strong safety profile of naturally-occurring phage, as corroborated by regulatory guidance we received from the FDA relating to our IBD program, allowing us to bypass preclinical safety studies and studies in healthy volunteers and to proceed directly to patient studies. The platform allows generation of personalized phage treatments, tailored to target specific bacterial strains in a given patient, allowing us to conduct an initial clinical proof of concept study in patients (Phase 2 results) within approximately 12-18 months of project initiation for many indications, and, in parallel, also the development of an optimized phage therapy candidate with a fixed composition optimized for the treatment of a specific indication for the overall patient population. We are initially utilizing the BOLT platform in our cystic fibrosis and atopic dermatitis programs.
BiomX’s approach is driven by the convergence of several factors: rapidly increasing understanding of phage, including the links between phage behaviors and their genomes; growing evidence that harmful bacteria are present and involved in chronic diseases, such as IBD, that could, in principle, be treated with phage; as well as by a growing number of anecdotal reports from different academic centers of successful compassionate use administration of phages to seriously ill patients who were unresponsive to other therapies. BiomX believes its phage therapeutic product candidates have the ability to treat conditions and diseases by precisely targeting pathogenic bacteria without disrupting other bacteria or the healthy microbiota.
BiomX’s goal is to develop multiple products based on the ability of phage to precisely target components of the microbiome and on BiomX’s ability to screen, identify and combine different phage, both naturally occurring and created using synthetic engineering, to develop these treatments.
Clinical Developments
On November 12, 2020, we announced initiation of a new phage therapy program in CF addressing chronic respiratory infections caused by Pseudomonas aeruginosa, a main contributor to morbidity and mortality in these patients. Subject to our preparation and submission of an investigational new drug application, or IND, that must take effect, Phase 2 results of a proof of concept clinical study evaluating safety and efficacy in patients are expected in the fourth quarter of 2021.
On November 12, 2020, we also announced the initiation of a new program for development of a topically administered phage-based product targeting Staphylococcus aureus, a bacterium linked to the development and exacerbation of inflammation in atopic dermatitis. Subject to our preparation and submission of an IND that must take effect, Phase 2 results of a proof of concept clinical study evaluating safety and efficacy in patients are expected in the first half of 2022.
Corporate Information
We were incorporated as a Delaware corporation in 2017. We have a wholly owned subsidiary in Israel called BiomX Ltd. Our executive offices are located at 7 Pinhas Sapir St., Floor 2, Ness Ziona, Israel, our telephone number is 972 723 942 377 and our website address is www.biomx.com. This reference to our website is an inactive textual reference only and is not a hyperlink. The information on our website is not incorporated by reference in this prospectus and should not be considered to be part of this prospectus. You should not consider the contents of our website in making an investment decision with respect to the securities.
Risk Factor Summary
The summary below provides an overview of many of the risks we face, and a more detailed discussion of risks is set forth in Part I, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2019, in Part II, Item 1A of our Quarterly Report on Form 10-Q for the quarter ended September 30, 2020, our Current Report on Form 8-K, filed on December 4, 2020 and under the caption “Risk Factors” in this prospectus, or collectively, the Risk Factors Discussion. Additional risks, beyond those summarized below or discussed in the Risk Factors Discussion or elsewhere in this prospectus and the documents incorporated by reference herein, may also materially and adversely impact our business operations or financial results. Consistent with the foregoing, the risks we face include, but are not limited to, the following:
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The number of shares of common stock that will be outstanding after this offering as shown above is based on 23,247,052 shares of common stock outstanding as of November 30, 2020 and assumes no exercise of outstanding options or warrants to purchase additional shares and excludes as of such date:
Unless otherwise indicated, all information in this prospectus assumes no exercise of the outstanding options or warrants described above.
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An investment in our common stock involves significant risks. You should carefully consider the risk factors described below and the risk factors incorporated by reference to our most recent Annual Report on Form 10-K, our most recent Quarterly Report on Form 10-Q, or Current Report on Form 8-K filed on December 4, 2020 and any subsequent Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q or Current Reports on Form 8-K we file after the date of this prospectus, and all other information contained or incorporated by reference into this prospectus, as updated by our subsequent filings under the Exchange Act, before acquiring any of such securities. Our business, prospects, financial condition and results of operations may be materially and adversely affected as a result of any of such risks. Some of our statements in sections entitled “Risk Factors” are forward-looking statements. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business, prospects, financial condition and results of operations.
Risks Related to this Offering
Sales of our common stock in this offering, or the perception that such sales may occur, could cause a drop in the market price of our common stock.
We may issue and sell shares of our common stock for aggregate gross proceeds of up to $50 million from time to time in connection with this offering. The issuance and sale from time to time of these new shares of common stock, or our ability to issue these new shares of common stock in this offering could have the effect of depressing the market price of our common stock.
Our management will have broad discretion over the use of the net proceeds from this offering, you may not agree with how we use the proceeds, and the proceeds may not be invested successfully.
Our management will have broad discretion as to the use of the net proceeds from any offering by us and could use them for purposes other than those contemplated at the time of this offering. Accordingly, you will be relying on the judgment of our management with regard to the use of these net proceeds, and you will not have the opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately. It is possible that the proceeds will be invested in a way that does not yield a favorable, or any, return for us.
You may experience immediate and substantial dilution in the book value per share of the common stock you purchase in the offering.
The offering price per share in this offering may exceed the pro forma net tangible book value per share of our common stock outstanding prior to this offering. Assuming that an aggregate of 8,064,516 shares of our common stock are sold at a price of $6.20 per share, the last reported sale price of our common stock on the NYSE American on November 30, 2020, for aggregate gross proceeds of up to approximately $50 million, and after deducting commissions and estimated aggregate offering expenses payable by us, you will experience immediate dilution of $2.63 per share, representing the difference between our pro forma as adjusted net tangible book value per share as of September 30, 2020 after giving effect to this offering and the assumed offering price. The exercise of outstanding stock options and warrants will result in further dilution of your investment. See the section below entitled “Dilution” for a more detailed illustration of the dilution you would incur if you participate in this offering.
We may sell additional shares of our common stock to fund our operations, which sales may occur during or immediately after sales pursuant to this offering are commenced, which would result in dilution to our stockholders.
In order to raise additional funds to support our operations, we may sell additional shares of our common stock, which would result in dilution to all of our stockholders that may adversely impact our business. See “Dilution.” In particular, at any time, including during the pendency of this offering, we may sell additional shares of our common stock, other than pursuant to this offering, in amounts that may be material to us, which may be in amounts that are equal to or greater than the size of this offering, including, without limitation, through underwritten public offerings, privately negotiated transactions, block trades, or any combination of the above, subject, in certain circumstances, to the consent of Jefferies. We cannot assure you that we will be able to sell shares or other securities in any other offering at a price per share that is equal to or greater than the price per share paid by investors in this offering, and investors purchasing shares or other securities in the future could have rights superior to existing stockholders. The price per share at which we sell additional shares of our common stock or other securities convertible into or exchangeable for our common stock in future transactions may be higher or lower than the price per share in this offering.
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We intend to use the net proceeds from this offering, if any, for research and product development activities, clinical trial activities, manufacturing for clinical trials and for preparing our product candidates for commercialization, marketing and business development, investment in capital equipment and infrastructure and for working capital and other general corporate purposes.
Pending the application of the net proceeds, we intend to invest the net proceeds in money market funds and investment securities consisting of U.S. Treasury notes, or high quality, marketable debt instruments of corporations and government sponsored enterprises, subject to any investment policies our investment committee may determine from time to time. We have not yet determined the amount of net proceeds to be used specifically for any of the foregoing purposes. Accordingly, our management will have significant discretion and flexibility in applying the net proceeds from this offering.
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We have never declared or paid any cash dividends on our common stock. We intend to retain any future earnings to finance the growth and development of our business and do not anticipate paying any cash dividends in the foreseeable future. Any dividends paid will be solely at the discretion of our board of directors.
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If you purchase shares of our common stock in this offering, your interest will be diluted to the extent of the difference between the public offering price per share and the net tangible book value per share of our common stock after this offering. Our net tangible book value as of September 30, 2020, was approximately $63.2 million, or approximately $2.73 per share. Net tangible book value per share is equal to total tangible assets minus the sum of total tangible liabilities divided by the total number of shares outstanding.
After giving effect to the sale of our common stock during the term of the sales agreement with Jefferies in the aggregate amount of $50,000,000 at an assumed offering price of $6.20 per share, the last reported sale price of our common stock on the NYSE American on November 30, 2020, and after deducting commissions and estimated aggregate offering expenses payable by us, our net tangible book value as of September 30, 2020 would have been $111.6 million, or $3.57 per share of our common stock. This amount represents an immediate increase in net tangible book value to existing stockholders of $0.84 per share and an immediate dilution in net tangible book value of $2.63 per share to purchasers of our shares of common stock in this offering, as illustrated in the following table:
Assumed public offering price per share | $ | 6.20 | ||||||
Net tangible book value per share as of September 30, 2020 | $ | 2.73 | ||||||
Increase in net tangible book value per share after giving effect to this offering | $ | 0.84 | ||||||
Pro forma net tangible book value per share as of September 30, 2020 | $ | 3.57 | ||||||
Dilution in net tangible book value per share to new investors | $ | 2.63 |
The table above assumes for illustrative purposes that an aggregate of 8,064,516 shares of our common stock are sold during the term of the sales agreement with Jefferies at a price of $6.20 per share, the last reported sale price of our common stock on the NYSE American on November 30, 2020, for aggregate gross proceeds of $50,000,000. In fact, the shares subject to the sales agreement with Jefferies will be sold, if at all, from time to time at prices that may vary. An increase of $1.00 per share in the price at which the shares are sold from the assumed offering price of $6.20 per share shown in the table above, assuming all of our common stock in the aggregate amount of $50,000,000 during the term of the sales agreement with Jefferies is sold at that price, would increase our adjusted net tangible book value per share after the offering to $3.71 per share and would increase the dilution in net tangible book value per share to new investors in this offering to $3.49 per share, after deducting commissions and estimated aggregate offering expenses payable by us. A decrease of $1.00 per share in the price at which the shares are sold from the assumed offering price of $6.20 per share shown in the table above, assuming all of our common stock in the aggregate amount of $50,000,000 during the term of the sales agreement with Jefferies is sold at that price, would decrease our adjusted net tangible book value per share after the offering to $3.40 per share and would decrease the dilution in net tangible book value per share to new investors in this offering to $1.80 per share, after deducting commissions and estimated aggregate offering expenses payable by us. This information is supplied for illustrative purposes only.
The number of shares of common stock that will be outstanding after this offering as shown above is based on 23,247,052 shares of common stock outstanding as of November 30, 2020 and assumes no exercise of outstanding options or warrants to purchase additional shares and excludes as of such date:
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The table above assumes no exercise of outstanding options or warrants prior to this offering or issued but unvested restricted stock units. To the extent that options or warrants are exercised, there will be further dilution to new investors.
To the extent that outstanding options or warrants outstanding as of September 30, 2020 have been or may be exercised or unvested restricted stock units have been or may be issued, investors purchasing our common stock in this offering may experience further dilution. In addition, we may choose to raise additional capital due to market conditions or strategic considerations even if we believe we have sufficient funds for our current or future operating plans. To the extent that we raise additional capital through the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.
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We have entered into an Open Market Sale AgreementSM with Jefferies, under which we may offer and sell up to $50 million of our shares of common stock from time to time through Jefferies acting as agent. Sales of our shares of common stock, if any, under this prospectus and the accompanying base prospectus will be made by any method that is deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act.
Each time we wish to issue and sell our shares of common stock under the sales agreement, we will notify Jefferies of the number of shares to be issued, the dates on which such sales are anticipated to be made, any limitation on the number of shares to be sold in any one day and any minimum price below which sales may not be made. Once we have so instructed Jefferies, unless Jefferies declines to accept the terms of such notice, Jefferies has agreed to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such shares up to the amount specified on such terms. The obligations of Jefferies under the sales agreement to sell our shares of common stock are subject to a number of conditions that we must meet.
The settlement of sales of shares between us and Jefferies is generally anticipated to occur on the second trading day following the date on which the sale was made. Sales of our shares of common stock as contemplated in this prospectus will be settled through the facilities of The Depository Trust Company or by such other means as we and Jefferies may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
We will pay Jefferies a commission equal to 3.0% of the aggregate gross proceeds we receive from each sale of our shares of common stock. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. In addition, we have agreed to reimburse Jefferies for the fees and disbursements of its counsel, payable upon execution of the sales agreement, in an amount not to exceed $75,000, in addition to certain ongoing disbursements of its legal counsel, unless we and Jefferies otherwise agree. We estimate that the total expenses for the offering, excluding any commissions or expense reimbursement payable to Jefferies under the terms of the sales agreement, will be approximately $130,000. The remaining sale proceeds, after deducting any other transaction fees, will equal our net proceeds from the sale of such shares.
Jefferies will provide written confirmation to us before the open on the NYSE American on the day following each day on which shares of common stock are sold under the sales agreement. Each confirmation will include the number of shares sold on that day, the aggregate gross proceeds of such sales and the proceeds to us.
In connection with the sale of the shares of common stock on our behalf, Jefferies will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of Jefferies will be deemed to be underwriting commissions or discounts. We have agreed to indemnify Jefferies against certain civil liabilities, including liabilities under the Securities Act. We have also agreed to contribute to payments Jefferies may be required to make in respect of such liabilities.
The offering of our shares of common stock pursuant to the sales agreement will terminate upon the earlier of (i) the sale of all shares of common stock subject to the sales agreement and (ii) the termination of the sales agreement as permitted therein.
This summary of the material provisions of the sales agreement does not purport to be a complete statement of its terms and conditions. A copy of the sales agreement is filed as an exhibit to the registration statement of which this prospectus forms a part.
Jefferies and its affiliates may in the future provide various investment banking, commercial banking, financial advisory and other financial services for us and our affiliates, for which services they may in the future receive customary fees. In the course of its business, Jefferies may actively trade our securities for its own account or for the accounts of customers, and, accordingly, Jefferies may at any time hold long or short positions in such securities.
A prospectus in electronic format may be made available on a website maintained by Jefferies, and Jefferies may distribute the prospectus electronically.
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The validity of the securities offered hereby will be passed upon for us by Sullivan & Worcester LLP, Boston, Massachusetts, and certain legal matters with respect to Israeli law will be passed upon for us by Zysman Aharoni Gayer & Co., Tel-Aviv, Israel. Jefferies LLC is being represented in connection with this offering by Cooley LLP, New York, New York, with respect to U.S. law and by Gornitzky & Co., Tel-Aviv, Israel, with respect to Israeli law.
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The financial statements incorporated in this prospectus by reference from our Annual Report on Form 10-K for the year ended December 31, 2019 have been audited by Brightman Almagor Zohar & Co., a Firm in the Deloitte Global Network, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
Warrants to Purchase up to 120,148,806 shares of Common Stock
256,887 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 256,887,000 Shares of Common Stock Issuable Upon Conversion of the Series X Preferred Stock
Up to 9,164,968 Shares of Common Stock Currently Outstanding
Offered by the Selling Securityholders Named Herein
PROSPECTUS
Dated , 2024
Up to $50,000,000
Common Stock
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Jefferies
, 2020
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses to be incurred by BiomX Inc., or we, us or our, in connection with the registration of the securities being registered hereby, all of which will be (or have been) borne by the registrant.us. All amounts shown are estimates except the Securities and Exchange CommissionSEC registration fee and FINRA filing fee.
Amount | ||||
SEC registration fee | $ | 16,365 | ||
FINRA filing fee | $ | 23,000 | ||
Legal fees and expenses | $ | * | ||
Accountant’s fees and expenses | $ | * | ||
Miscellaneous, printing and transfer agent fees and expenses | $ | * | ||
Total | $ | * |
SEC registration fee | $ | 23,809.18 | ||
Legal fees and expenses | 50,000 | |||
Accounting fees and expenses | 24,000 | |||
Miscellaneous | 2,190.82 | |||
Total expenses | $ | 100,000 |
Item 15.Indemnification of Directors and Officers.
Our Amended and Restated Certificatecertificate of Incorporation, as amended, or our Certificate of Incorporation,incorporation provides that all our Directors,directors, officers, employees and agents shall be entitled to be indemnified by us to the fullest extent permitted by Section 145 of the Delaware General Corporation Law, or the DGCL.Law.
Section 145 of the Delaware General Corporation Law concerning indemnification of officers, directors, employees and agents is set forth below.
“Section 145. Indemnification of officers, directors, employees and agents; insurance.
(a) | A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful. |
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(b) | A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. |
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(c) | (1) To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith. For indemnification with respect to any act or omission occurring after December 31, 2020, references to “officer” for purposes of paragraphs (c)(1) and (2) of this section shall mean only a person who at the time of such act or omission is deemed to have consented to service by the delivery of process to the registered agent of the corporation pursuant to § 3114(b) of Title 10 (for purposes of this sentence only, treating residents of this State as if they were nonresidents to apply § 3114(b) of Title 10 to this sentence). (2) The corporation may indemnify any other person who is not a present or former director or officer of the corporation against expenses (including attorneys’ fees) actually and reasonably incurred by such person to the extent he or she has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein. |
(d) | Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders. |
(e) | Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’ fees) incurred by former officers and directors or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems appropriate. |
(f) | The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office. A right to indemnification or to advancement of expenses arising under a provision of the certificate of incorporation or a bylaw shall not be eliminated or impaired by an amendment to such provision after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred. |
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(g) | A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under this section. For purposes of this subsection, insurance shall include any insurance provided directly or indirectly (including pursuant to any fronting or reinsurance arrangement) by or through a captive insurance company organized and licensed in compliance with the laws of any jurisdiction, including any captive insurance company licensed under Chapter 69 of Title 18, provided that the terms of any such captive insurance shall: (1) Exclude from coverage thereunder, and provide that the insurer shall not make any payment for, loss in connection with any claim made against any person arising out of, based upon or attributable to any (i) personal profit or other financial advantage to which such person was not legally entitled or (ii) deliberate criminal or deliberate fraudulent act of such person, or a knowing violation of law by such person, if (in the case of the foregoing paragraph (g)(1)(i) or (ii) of this section) established by a final, nonappealable adjudication in the underlying proceeding in respect of such claim (which shall not include an action or proceeding initiated by the insurer or the insured to determine coverage under the policy), unless and only to the extent such person is entitled to be indemnified therefor under this section; (2) Require that any determination to make a payment under such insurance in respect of a claim against a current director or officer (as defined in paragraph (c)(1) of this section) of the corporation shall be made by an independent claims administrator or in accordance with the provisions of paragraphs (d)(1) through (4) of this section; and (3) Require that, prior to any payment under such insurance in connection with any dismissal or compromise of any action, suit or proceeding brought by or in the right of a corporation as to which notice is required to be given to stockholders, such corporation shall include in such notice that a payment is proposed to be made under such insurance in connection with such dismissal or compromise. For purposes of paragraph (g)(1) of this section, the conduct of an insured person shall not be imputed to any other insured person. A corporation that establishes or maintains a captive insurance company that provides insurance pursuant to this section shall not, solely by virtue thereof, be subject to the provisions of Title 18. |
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(h) | For purposes of this section, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. |
(i) | For purposes of this section, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this section. |
(j) | The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. |
(k) | The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification brought under this section or under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of Chancery may summarily determine a corporation’s obligation to advance expenses (including attorneys’ fees).” |
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our Directors,directors, officers, and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment of expenses incurred or paid by a director, officer or controlling person in a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to the court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
In accordance with Section 102(b)(7) of the DGCL, our Certificatecertificate of Incorporationincorporation provides that no director shall be personally liable to usit or any of ourits stockholders for monetary damages resulting from breaches of their fiduciary duty as directors, except to the extent such limitation on or exemption from liability is not permitted under the DGCL, unless they violated their duty of loyalty to us or our stockholders, acted in bad faith, knowingly or intentionally violated the law, authorized unlawful payments of dividends, unlawful stock purchases or unlawful redemptions, or derived improper personal benefit from their actions as directors. The effect of this provision of our certificate of incorporation is to eliminate our rights and those of our stockholders (through stockholders’ derivative suits on its behalf) to recover monetary damages against a director for breach of the fiduciary duty of care as a director, including breaches resulting from negligent or grossly negligent behavior, except, as restricted by Section 102(b)(7) of the DGCL. However, this provision does not limit or eliminate our rights or the rights of any stockholder to seek non-monetary relief, such as an injunction or rescission, in the event of a breach of a director’s duty of care.
If the DGCL is amended to authorize corporate action further eliminating or limiting the liability of directors, then, in accordance with our Certificatecertificate of Incorporation,incorporation, the liability of our Directorsdirectors to us or our stockholders will be eliminated or limited to the fullest extent authorized by the DGCL, as so amended. Any repeal or amendment of provisions of the our Certificateregistrant’s certificate of Incorporationincorporation limiting or eliminating the liability of Directors,directors, whether by our stockholders or by changes in law, or the adoption of any other provisions inconsistent therewith, will (unless otherwise required by law) be prospective only, except to the extent such amendment or change in law permits us to further limit or eliminate the liability of directors on a retroactive basis.
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Our Certificatecertificate of Incorporationincorporation also provides that we will, to the fullest extent authorized or permitted by applicable law, indemnify our current and former officers and Directors,directors, as well as those persons who, while Directorsdirectors or officers of our corporation, are or were serving as directors, officers, employees or agents of another entity, trust or other enterprise, including service with respect to an employee benefit plan, in connection with any threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, against all expense, liability and loss (including, without limitation, attorney’s fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred or suffered by any such person in connection with any such proceeding. Notwithstanding the foregoing, a person eligible for indemnification pursuant to our Certificatecertificate of Incorporationincorporation will be indemnified by us in connection with a proceeding initiated by such person only if such proceeding was authorized by our Boardboard of Directors,directors, except for proceedings to enforce rights to indemnification.
The right to indemnification conferred by our Certificatecertificate of Incorporationincorporation is a contract right that includes the right to be paid by us the expenses incurred in defending or otherwise participating in any proceeding referenced above in advance of its final disposition, provided, however, that if the DGCL requires, an advancement of expenses incurred by our officer or director (solely in the capacity as our officer or director) will be made only upon delivery to us of an undertaking, by or on behalf of such officer or director, to repay all amounts so advanced if it is ultimately determined that such person is not entitled to be indemnified for such expenses under our certificate of incorporation or otherwise.
The rights to indemnification and advancement of expenses will not be deemed exclusive of any other rights which any person covered by our certificate of incorporation may have or hereafter acquire under law, our Certificatecertificate of Incorporation,incorporation, our Amended and Restated Bylaws, or our Bylaws,bylaws, an agreement, vote of stockholders or disinterested Directors,directors, or otherwise.
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Any repeal or amendment of provisions of our Certificatecertificate of Incorporationincorporation affecting indemnification rights, whether by our stockholders or by changes in law, or the adoption of any other provisions inconsistent therewith, will (unless otherwise required by law) be prospective only, except to the extent such amendment or change in law permits us to provide broader indemnification rights on a retroactive basis, and will not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision with respect to any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision. Our Certificatecertificate of Incorporationincorporation will also permit us, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other that those specifically covered by our certificate of incorporation.
Our Bylawsbylaws include the provisions relating to advancement of expenses and indemnification rights consistent with those set forth in our certificate of incorporation. In addition, our Bylawsbylaws provide for a right of indemnity to bring a suit in the event a claim for indemnification or advancement of expenses is not paid in full by us within a specified period of time. Our Bylawsbylaws also permit us to purchase and maintain insurance, at our expense, to protect ourselves and/or any of our director, officer, employee or agent or another entity, trust or other enterprise against any expense, liability or loss, whether or not we would have the power to indemnify such person against such expense, liability or loss under the DGCL.
Any repeal or amendment of provisions of our Bylawsbylaws affecting indemnification rights, whether by our Boardboard of Directors,directors, stockholders or by changes in applicable law, or the adoption of any other provisions inconsistent therewith, will (unless otherwise required by law) be prospective only, except to the extent such amendment or change in law permits us to provide broader indemnification rights on a retroactive basis, and will not in any way diminish or adversely affect any right or protection existing thereunder with respect to any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.
In addition, we are party to indemnification agreements with each of our Directorsdirectors and executive officers. These agreements require us to indemnify these individuals to the fullest extent permitted by the DGCL against liabilities that may arise by reason of their service to us, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. We maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss arising from claims made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such directors and officersofficers.
Item 16.Exhibits
The following exhibits are filed as part of this registration statement:
* | Filed herewith. |
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Item 16. Exhibits and Financial Statement Schedules.
The exhibits to this Registration Statement are listed in the Exhibit Index following the signature page of this Registration Statement.
Item 17.Undertakings.Undertakings
(a) | The undersigned registrant hereby undertakes: |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) | to include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
(ii) | to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” table in the effective registration statement; |
(iii) | to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. |
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post- effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and (ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange 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 registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(5) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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(6) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(h) 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 foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(j) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Trust Indenture Act.
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EXHIBIT INDEX
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to |
(c) | 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 foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the 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, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Ness Ziona, Israel, on this 4th29th day of December, 2020.April, 2024.
BIOMX INC. | ||
By | /s/ Jonathan Solomon | |
Jonathan Solomon | ||
Chief Executive Officer |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints each of Jonathan Solomon and Marina Wolfson and each of them acting singly, as his or her true and lawful attorney-in-fact and agent, each with full power of substitution, for the undersigned in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments or any abbreviated registration statement and any amendments thereto filed pursuant to Rule 462(b) increasing the number of securities for which registration is sought), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-factattorney-in-fact and agents,agent, with full power of each to act alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-factattorney-in-fact and agents, or either of them,agent, or his or their substitute, or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ | ||||
(Principal Executive Officer) and Director | ||||
/s/ | Interim Chief | |||
(Principal Financial Officer and Principal Accounting Officer) | ||||
/s/ | Director | |||
/s/ | Director | |||
/s/ | ||||
Dr. | ||||
/s/ | Director | |||
/s/ | Director | |||
/s/ Alan Moses | Director | April 29, 2024 | ||
Dr. Alan Moses | ||||
/s/ Eddie Williams | Director | April 29, 2024 | ||
Eddie Williams | ||||
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