United States securities and exchange commission logo
November 21, 2023
Jonathan Solomon
Chief Executive Officer
BiomX Inc.
22 Einstein St., Floor 4
Ness Ziona, Israel 7414003
Re: BiomX Inc.
Schedule TO-I Filed
November 9, 2023
File No. 005-90744
Dear Jonathan Solomon:
We have reviewed your
filing and have the following comments.
Please respond to these comments by providing the requested
information or advise us as
soon as possible when you will respond. If you do not believe our
comments apply to your facts
and circumstances, please tell us why in your response.
After reviewing your response to these comments, we may have
additional comments.
All defined terms used here have the same meaning as in your tender
offer materials.
Schedule TO-I Filed November 9, 2023
General
1. We note that in the
chart setting forth applicable exchange ratios for outstanding eligible
options, the ratios of
option shares outstanding to new stock options do not seem to match
the stated exchange
ratios. Please provide an explanation of these discrepancies or update
the disclosure
accordingly.
2. In your response
letter, explain why you do not believe pro forma financial information is
material in the context
of this exchange offer, or revise to provide such information in the
amended disclosure
document. See Item 1010(b) of Regulation M-A and Item 10 of
Schedule TO.
Procedures for electing to exchange options, page 16
3. On page 16, you state:
Due to certain requirements under U.S. securities laws, an
exception to this rule
is that if we have not accepted your properly tendered options by
11:59 p.m., Israel
Time, on December 11, 2023 (which is the 20th U.S. business day
Jonathan Solomon
FirstName
BiomX Inc.LastNameJonathan Solomon
Comapany 21,
November NameBiomX
2023 Inc.
November
Page 2 21, 2023 Page 2
FirstName LastName
following the commencement of the Offer), you may withdraw your
options at any time
thereafter but prior to our acceptance. While you may provide more
generous
withdrawal rights in this Offer, Rule 13e-4(f)(2) mandates that
tendered shares not yet
accepted for payment by the 40th business day after commencement of an
issuer tender
offer may be withdrawn by the tendering holder. Please revise or
advise.
Conditions of the Offer, page 19
4. We note the following disclosure on page 20: "The conditions to this
Offer are for our
benefit. We may assert them in our discretion regardless of the
circumstances giving rise
to them before the expiration date (emphasis added)." Please revise
the highlighted
language to avoid the implication that actions or inaction by the
Company can "trigger" an
Offer conditions. All conditions must be objective and outside the
control of the Company
to avoid creating an illusory offer. See Question 101.02 of the
Division of Corporation
Finance's "Tender Offer Rules and Schedules" Compliance and Disclosure
Interpretations.
5. You have included a condition that will be triggered by any general
suspension of trading
in, or limitation on prices for, our securities on any national
securities exchange or in an
over the-counter market in the United States. Please revise to
explain what would be
considered a limitation on prices for securities on any national
securities exchange or in
the over-the-counter market, or delete this language.
6. Please see the last paragraph under this section. If a Condition is
triggered while the
Offer is pending, in our view, the Company must promptly inform option
holders whether
it will assert the condition and terminate the Offer, or waive it and
continue. Reserving the
right to waive a condition at any time and from time to time is
inconsistent with your
obligation in this regard. Please revise your disclosure, consistent
with the views
expressed here.
Israeli Tax Section, page 27
7. Disclose when you expect to obtain the requested tax ruling and state
how you will inform
option holders.
Miscellaneous, page 29
8. While the Company need not disseminate offer materials in
jurisdictions where it may not
legally do so, it must accept tenders from all eligible option holders
who tender into the
offer. See Rule 13e-4(f)(8)(i). Please revise the language here
accordingly.
Financial Statements, page 29
9. We note that the Company filed the most recent 10-Q on November 14,
2023, after it filed
this TO-I. Please disclose the book value per share of common stock as
of the date of the
most recent balance sheet presented. See Item 1010(a)(4) of Regulation
M-A and Item 10
of Schedule TO.
Jonathan Solomon
BiomX Inc.
November 21, 2023
Page 3
We remind you that the filing persons are responsible for the accuracy
and adequacy of
their disclosures, notwithstanding any review, comments, action or absence of
action by the staff.
Please direct any questions to Christina Chalk at 202-551-3263, Laura
McKenzie at 202-
551-4568, or Eddie Kim at 202-679-6943.
FirstName LastNameJonathan Solomon Sincerely,
Comapany NameBiomX Inc.
Division of
Corporation Finance
November 21, 2023 Page 3 Office of Mergers &
Acquisitions
FirstName LastName