As filed with the Securities and Exchange Commission on December 7,
2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BIOMX INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware |
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82-3364020 |
(State or other jurisdiction of |
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(I.R.S. Employer |
incorporation or organization) |
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Identification No.) |
22 Einstein St., Floor 4
Ness Ziona, Israel
Telephone: (+972) 72-394-2377
(address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Avraham Gabay
BiomX Inc.
22 Einstein St., Floor 4
Ness Ziona, Israel
Telephone: (+972) 72-394-2377
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Howard E. Berkenblit
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 338-2800
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement, as determined by market and other conditions.
If the only securities being registered on this Form 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 Form 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 Form 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,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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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. ☒
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 Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This registration statement contains:
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A base prospectus, which covers the offering, issuance and sales by us of up to $150,000,000 in the aggregate of the securities identified above from time to time in one or more offerings; and |
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A offering agreement prospectus covering the offering, issuance and sale by us of up to a maximum aggregate offering price of up to $7,500,000 of our common stock that may be issued and sold from time to time under an at the market offering agreement, or the offering agreement, with H.C. Wainwright & Co., or Wainwright. |
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 offering agreement prospectus immediately follows the base prospectus.
The $7,500,000 of common stock that may be offered, issued and sold under the offering 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 offering agreement, any portion
of the $7,500,000 included in the offering agreement prospectus that is not sold pursuant to the offering agreement will be available
for sale in other offerings pursuant to the base prospectus, and if no shares are sold under the offering agreement, the full $7,500,000
of securities may be sold in other offerings pursuant to the base prospectus.
The information in this prospectus is
not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
PROSPECTUS |
Subject
to completion, December 7, 2023 |
$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 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. You should carefully read this prospectus and any accompanying supplements
before you decide to invest in any of these securities.
We may, from time to time, offer to sell the securities, through public
or private transactions, directly or through underwriters, agents or dealers, on or off the NYSE American Stock Market, or the NYSE American,
at prevailing market prices or at privately negotiated prices. If any underwriters, agents or dealers are involved in the sale of any
of these securities, the applicable prospectus supplement will set forth the names of the underwriter, agent or dealer and any applicable
fees, commissions or discounts.
Our common stock is traded on the NYSE American, under the symbol “PHGE”.
On December 5, 2023, the last reported sale price of our common stock on NYSE American was $0.28 per share.
As of December 5, 2023, the aggregate market value worldwide of our
outstanding voting and non-voting common equity held by non-affiliates, as calculated pursuant to the rules of the Securities and Exchange
Commission, was approximately $28,155,047, based on 45,929,930 shares of common stock outstanding held by non-affiliates at a per share
of common stock price of $0.61 based on the closing sale price of our common stock on the NYSE American on November 24, 2023. As of the
date hereof, we have sold or offered 200 shares of common stock for a total of approximately $124 pursuant to General Instruction I.B.6
of Form S-3 during the prior 12 calendar month period that ends on and includes the date hereof. Pursuant to General Instruction I.B.6
of Form S-3, in no event will we sell securities registered on this registration statement of which any prospectus supplement forms a
part in a public primary offering with a value exceeding one-third of our outstanding voting and nonvoting common equity held by non-affiliates
(the “public float”) in any 12-month period so long as our public float remains below $75 million.
Investing in our securities involves risks. See “Risk Factors”
on page 2 of this prospectus. Additional risks will be described in the related prospectus supplements under the heading “Risk Factors”.
You should review that section of the related prospectus supplements for a discussion of matters that investors in our securities should
consider.
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 adequacy or accuracy of this prospectus.
Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2023.
TABLE OF CONTENTS
You should rely only on the information contained in this prospectus,
any prospectus supplement and the documents incorporated by reference herein or therein, or to which we 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 do not constitute an offer to sell, or a solicitation of an offer to purchase,
the 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 such offer or solicitation of an offer in such jurisdiction. You should not assume that the information contained
in this prospectus, any prospectus supplement or any document incorporated by reference is accurate as of any date other than the date
indicated in the applicable document.
Neither the delivery of this prospectus nor any 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, references in this prospectus to “BiomX,” “we,”
“us,” and “our” refer to BiomX Inc. and its wholly-owned Israeli subsidiary, BiomX Ltd., and RondinX Ltd., an
Israeli company and wholly-owned subsidiary of BiomX Ltd.
ABOUT THIS PROSPECTUS
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 securities may be offered by this prospectus. Each time we sell securities
(other than in connection with the exercise of certain outstanding warrants), we will provide a prospectus 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 the 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 - for example, a document incorporated by reference in this prospectus
or any prospectus supplement - the statement in the document having the later date modifies or supersedes the earlier statement.
OUR COMPANY
We are a clinical stage product discovery company developing products
using both natural and engineered phage technologies designed to target and kill specific harmful bacteria associated with chronic diseases,
such as cystic fibrosis, or CF. 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 utilizing 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.
In our therapeutic programs, we focus on using phage therapy to target
specific strains of pathogenic bacteria that are associated with diseases. Our phage-based product candidates are developed utilizing
our proprietary research and development platform named BOLT. The BOLT platform is unique, employing cutting edge methodologies and capabilities
across disciplines including computational biology, microbiology, synthetic engineering of phage and their production bacterial hosts,
bioanalytical assay development, manufacturing and formulation, to allow agile and efficient development of natural or engineered phage
combinations, or cocktails. The cocktail contains phage with complementary features and is optimized for multiple characteristics such
as broad target host range, ability to prevent resistance, biofilm penetration, stability and ease of manufacturing.
Our goal is to develop multiple products based on the ability of phage
to precisely target harmful bacteria and on our ability to screen, identify and combine different phage, both naturally occurring and
created using synthetic engineering, to develop these treatments.
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 22 Einstein St., Floor 4,
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 FACTORS
An investment in our securities involves significant risks. You should
carefully consider the risk factors below as well as risk factors contained 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, 2022, and our quarterly report on Form 10-Q for the quarter
ended September 30, 2023, as well as all of the information contained in this prospectus, any prospectus supplement and the other documents
incorporated by reference herein or therein, before you decide to invest in our securities. Our business, prospects, financial condition
and results 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 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.
We conduct our operations in Israel. Conditions in Israel,
including the recent attack by Hamas and other terrorist organizations and Israel’s war against them, may affect our operations.
Our headquarters and principal offices and most of our operations are
located in the State of Israel. In addition, all of our key employees and officers are residents of Israel. Accordingly, political, economic
and military conditions in Israel and the surrounding region may directly affect our business.
Any hostilities involving Israel or the interruption or curtailment
of trade between Israel and its present trading partners, or a significant downturn in the economic or financial condition of Israel,
could affect adversely our operations. Ongoing and revived hostilities or other Israeli political or economic factors could harm our operations,
product development and results of operations.
On October 7, 2023, an unprecedented attack was launched against Israel
by terrorists from the Hamas terrorist organization that infiltrated Israel’s southern border from the Gaza Strip and in other
areas within the state of Israel attacking civilians and military targets while simultaneously launching extensive rocket attacks on the
Israeli population. These attacks resulted in extensive deaths, injuries and kidnapping of civilians and soldiers. In response, the Security
Cabinet of the State of Israel declared war against Hamas and a military campaign against these terrorist organizations commenced in parallel
to their continued rocket and terror attacks. To date, the State of Israel continues to be at war with Hamas.
Since the war broke out on October 7, 2023, our operations have not
been adversely affected by this situation. However, at this time, it is not possible to predict the intensity or duration of the war,
nor can we predict how this war will ultimately affect Israel’s economy in general and we continue to monitor the situation closely and
examine the potential disruptions that could adversely affect our operations.
In connection with the Israeli security cabinet’s declaration
of war against Hamas and possible hostilities with other organizations, several hundred thousand Israeli military reservists were drafted
to perform immediate military service. While none of our material employees in Israel have been called to active military duty, we rely
on service providers located in Israel and have entered into certain agreements with Israeli counterparties. Employees of such service
providers or contractual counterparties may be called for service in the current or future wars or other armed conflicts with Hamas and
such persons may be absent from their positions for a period of time. As of December 5, 2023, we have not been impacted by any absences
of personnel at our service providers or counterparties located in Israel. However, military service call ups that result in absences
of personnel from us, our service providers or contractual counterparties in Israel may disrupt our operations and absences for an extended
period of time may materially and adversely affect our business, prospects, financial condition and results of operations.
Following the attack by Hamas on Israel’s southern border, Hezbollah,
a terrorist organization in Lebanon has also launched missile, rocket, and shooting attacks against Israeli military sites, troops, and
Israeli towns in northern Israel. In response to these attacks, the Israeli army has carried out a number of targeted strikes on sites
belonging to Hezbollah in southern Lebanon. It is possible that other terrorist organizations, including Palestinian military organizations
in the West Bank, as well as other hostile countries, such as Iran, will join the hostilities. Such hostilities may include terror and
missile attacks. Any hostilities involving Israel or the interruption or curtailment of trade between Israel and its trading partners
could adversely affect our operations and results of operations. Our insurance policies do not cover losses that may occur as a result
of events associated with war and terrorism. Although the Israeli government currently covers the reinstatement value of direct damages
that are caused by terrorist attacks or acts of war, we cannot assure you that this government coverage will be maintained or that it
will sufficiently cover our potential damages. Any losses or damages incurred by us could have a material adverse effect on our business.
Any armed conflicts or political instability in the region would likely negatively affect business conditions and could harm our results
of operations.
Several countries, principally in the Middle East, still restrict doing
business with Israel and Israeli companies, and additional countries may impose restrictions on doing business with Israel and Israeli
companies, whether as a result of hostilities in the region or otherwise. In addition, there have been increased efforts by activists
to cause companies, research institutions and consumers to boycott Israeli goods and cooperation with Israeli-related entities based on
Israeli government policies. Such actions, particularly if they become more widespread, may adversely impact our ability to cooperate
with research institutions and collaborate with other third parties. Any hostilities involving Israel, any interruption or curtailment
of trade or scientific cooperation between Israel and its present partners, or a significant downturn in the economic or financial condition
of Israel could adversely affect our business, financial condition and results of operations. We may also be targeted by cyber terrorists
specifically because we are an Israeli-related company.
Prior to the Hamas attack in October 2023, the Israeli government pursued
extensive changes to Israel’s judicial system. In response to the foregoing developments, individuals, organizations and institutions,
both within and outside of Israel, have voiced concerns that the proposed changes may negatively impact the business environment in Israel
including due to reluctance of foreign investors to invest or transact business in Israel as well as to increased currency fluctuations,
downgrades in credit rating, increased interest rates, increased volatility in securities markets, and other changes in macroeconomic
conditions. The risk of such negative developments has increased in light of the recent Hamas attacks and the war against Hamas declared
by Israel, regardless of the proposed changes to the judicial system and the related debate. To the extent that any of these negative
developments do occur, they may have an adverse effect on our business, our results of operations and our ability to raise additional
funds, if deemed necessary by our management and board of directors.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
INFORMATION
This prospectus, any prospectus supplement and the documents we incorporate
by reference herein or therein include “forward-looking statements” within the meaning of the Private Securities Litigation
Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange
Act of 1934, as amended, or the Exchange Act, and other securities laws. The statements contained herein that are not purely historical,
are forward-looking statements. Forward-looking statements include statements about our expectations, beliefs, plans, objectives, intentions,
assumptions and other statements that are not historical facts. Words or phrases such as “anticipate,” “believe,”
“continue,” “estimate,” “expect,” “intend,” “may,” “ongoing,”
“plan,” “potential,” “predict,” “project,” “will” or similar words or phrases,
or the negatives of those words or phrases, may identify forward-looking statements, but the absence of these words does not necessarily
mean that a statement is not forward-looking. For example, we are making forward-looking statements when we discuss our business strategy
and plans, our clinical and pre-clinical development program, including timing, milestones and the design thereof, including acceptance
of regulatory agencies of such design, the potential opportunities for and benefits of the BacteriOphage Lead to Treatment, or BOLT, platform,
the potential of our product candidates and the sufficiency of financial resources and financial needs and ability to continue as a going
concern. However, you should understand that these statements are not guarantees of performance or results, and there are a number of
risks, uncertainties and other important factors that could cause our actual results to differ materially from those expressed in the
forward-looking statements, including, among others:
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the ability to generate revenues, and raise sufficient financing to meet working capital requirements; |
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our ability to continue as a going concern absent access to sources of liquidity; |
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the unpredictable timing and cost associated with our approach to developing product candidates using phage technology; |
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military, political and economic instability in the state of Israel, and in particular, the war situation in Israel that was declared by the security cabinet of the state of Israel; |
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political and economic instability, including, without limitation, due to natural disasters or other catastrophic events, such as the Russian invasion of Ukraine and world sanctions on Russia, Belarus, and related parties, terrorist attacks, hurricanes, fire, floods, pollution and earthquakes; |
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obtaining U.S. Food Drug Administration, or FDA, acceptance of any non-U.S. clinical trials of product candidates; |
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our ability to enroll patients in clinical trials and achieve anticipated development milestones when expected; |
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the ability to pursue and effectively develop new product opportunities and acquisitions and to obtain value from such product opportunities and acquisitions; |
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penalties and market withdrawal associated with any unanticipated problems with product candidates and failure to comply with labeling and other restrictions; |
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expenses associated with compliance with ongoing regulatory obligations and successful continuing regulatory review; |
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market acceptance of our product candidates and ability to identify or discover additional product candidates; |
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our ability to obtain high titers for specific phage cocktails necessary for preclinical and clinical testing; |
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the ability of our product candidates to demonstrate requisite safety and efficacy for drug products, or safety, purity and potency for biologics without causing adverse effects; |
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expected benefits from FDA fast track designation for our BX004 product candidate; |
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the success of expected future advanced clinical trials of our product candidates; |
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our ability to obtain required regulatory approvals; |
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delays in developing manufacturing processes for our product candidates; |
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the continued impact of 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; |
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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; |
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the impact of unfavorable pricing regulations, third-party reimbursement practices or healthcare reform initiatives on our ability to sell product candidates or therapies profitably; |
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protection of our intellectual property rights and compliance with the terms and conditions of current and future licenses with third parties; |
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infringement on the intellectual property rights of third parties and claims for remuneration or royalties for assigned service invention rights; |
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our ability to acquire, in-license or use proprietary rights held by third parties necessary to our product candidates or future development candidates; |
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ethical, legal and social concerns about synthetic biology and genetic engineering that may adversely affect market acceptance of our product candidates; |
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reliance on third-party collaborators; |
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our ability to attract and retain key employees or to enforce the terms of noncompetition agreements with employees; |
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the failure to comply with applicable laws and regulations other than drug manufacturing compliance; |
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potential security breaches, including cybersecurity incidents; |
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other factors described in the documents incorporated by reference in this prospectus and any prospectus supplement. |
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 in 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.
USE OF PROCEEDS
Unless we otherwise indicate in an applicable prospectus supplement,
we currently intend to use the net proceeds from the sale of the securities 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, repayment of our debt (including under our Loan and Security Agreement,
dated August 16, 2021, with Hercules Capital, Inc., the terms of which are described in the documents incorporated herein by reference)
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 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.
THE SECURITIES WE MAY OFFER
The descriptions of the securities contained in this prospectus, together
with any applicable prospectus supplement, summarize the material terms and provisions of the various types of securities that we may
offer. We will describe in any applicable prospectus supplement relating to any securities the particular terms of the securities offered
by that prospectus supplement. If we so indicate in any applicable prospectus supplement, the terms of the securities may differ 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 to the securities, and the securities exchange or market, if any, on which the securities will
be listed.
We may sell from time to time, in one or more offerings, one or more
of the following securities:
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warrants to purchase common stock; and |
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units of two or more of the securities mentioned above. |
The total initial offering price of all securities that we may issue
in these offerings will not exceed $150,000,000.
DESCRIPTION OF CAPITAL STOCK
The following summary is a description of the material terms
of our share capital. We encourage you to read our Amended and Restated Certificate of Incorporation, as amended, or our Certificate of
Incorporation, and Amended and Restated By-laws, or our Bylaws, which have been filed with the SEC, as well as the applicable provisions
of the General Corporation Law of the State of Delaware, or the DGCL, for more information.
As of December 5, 2023, our authorized capital stock consists of 120,000,000
shares of common stock, of which there were 45,979,930 shares outstanding as of December 5, 2023, and 1,000,000 shares of preferred stock,
none of which 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 referenced as exhibits herein, and the provisions of the DGCL.
Common Stock
Our holders of record of our common stock are entitled to one vote
for each share held on all matters to be voted on by stockholders. Our stockholders have no conversion, preemptive or other subscription
rights and there are no sinking fund or redemption provisions applicable to the shares of common stock. There is no cumulative voting
with respect to the election of directors. Our stockholders are entitled to receive ratable dividends when, as and if declared by our
Board of Directors out of funds legally available therefor.
We have not paid any cash dividends on our common stock to date and
do not intend to pay cash dividends in the foreseeable future. The payment of cash dividends in the future will be dependent upon our
revenues and earnings, if any, capital requirements and general financial condition. The payment of any cash dividends will be within
the discretion of our Board of Directors at such time.
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. In addition, the preferred stock could be utilized as a method of discouraging, delaying
or preventing a change in control of us. Although we do not currently intend to issue any shares of preferred stock, we reserve the right
to do so in the future. No shares of preferred stock are being issued or registered hereunder.
Transfer Agent
The transfer agent for our shares of common stock is Continental Stock
Transfer & Trust Company, 1 State Street 30th Floor New York, NY 10004-156117.
Certain Anti-Takeover Provisions of Delaware Law and our Certificate
of Incorporation and Bylaws
The provisions of DGCL, our Certificate of Incorporation and Bylaws
described below may have the effect of delaying, deferring or discouraging another party from acquiring control of us.
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:
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a stockholder who owns 10% or more of our outstanding voting stock (otherwise known as an “interested stockholder”); |
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an affiliate of an interested stockholder; or |
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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:
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our Board of Directors approves the transaction that made the stockholder an “interested stockholder,” prior to the date of the transaction; |
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after the completion of the transaction that resulted in the stockholder becoming an interested stockholder, that stockholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, other than statutorily excluded shares of common stock; or |
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on or subsequent to the date of the transaction, the business combination is approved by our Board of Directors and authorized at a meeting of our stockholders, and not by written consent, by an affirmative vote of at least two-thirds of the outstanding voting stock not owned by the interested stockholder. |
Special meeting of stockholders
Our Bylaws provide that special meetings of our stockholders may be
called only by a majority vote of our Board of Directors, or by our chief executive officer.
Classified Board of Directors
Our Board of Directors is divided into three classes, each of which
will generally serve for a term of three years with only one class of directors being elected in each year. This system of electing Directors
may tend to discourage a third party from making a tender offer or otherwise attempting to obtain control of us, because it generally
makes it more difficult for stockholders to replace a majority of the Directors.
Advance notice requirements for stockholder proposals and director
nominations
Our Bylaws provide that stockholders seeking to bring business before
our annual meeting of stockholders, or to nominate candidates for election as directors at our annual meeting of stockholders must provide
timely notice of their intent in writing. To be timely, a stockholder’s notice to bring matters before our annual meeting of stockholders
needs to be delivered to our principal executive offices not later than the close of business on the 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.
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 December 5, 2023, we have no outstanding registered 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:
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the title and ranking of the debt securities of such series (including the terms of any subordination provisions); |
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the price or prices (expressed as a percentage of the principal amount) at which we will issue the debt securities of such series; |
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any limit on the aggregate principal amount of the debt securities of such series; |
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the date or dates on which the principal of the debt securities of such series is payable; |
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the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities of such series will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the interest payable on any interest payment date; |
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the place or places where principal of, and interest, if any, on the debt securities of such series will be payable (and the method of such payment), where the debt securities of such series may be surrendered for registration of transfer or exchange, and where notices and demands to us in respect of the debt securities of such series may be delivered; |
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the period or periods within which, the price or prices at which and the terms and conditions upon which we may redeem, in whole or in part, the debt securities of such series; |
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any obligation we have to redeem or purchase the debt securities of such series pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities and the period or periods within which, the price or prices at which and in the terms and conditions upon which the debt securities of such series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
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the dates on which and the price or prices at which we will repurchase debt securities of such series at the option of the holders of such debt securities and other detailed terms and provisions of these repurchase obligations; |
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the denominations in which the debt securities of such series will be issued, if other than denominations of $1,000 and any integral multiple thereof; |
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whether the debt securities of such series will be issued in the form of certificated debt securities or global debt securities; |
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the portion of principal amount of the debt securities of such series payable upon declaration of acceleration of the maturity date, if other than the principal amount; |
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the currency of denomination of the debt securities of such series, which may be Dollars or any Foreign Currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency; |
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the designation of the currency, currencies or currency units in which payment of principal of, premium and interest on the debt securities of such series will be made; |
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if payments of principal of, premium or interest on the debt securities of such series will be made in one or more currencies or currency units other than that or those in which such debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined; |
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the manner in which the amounts of payment of principal of, premium, if any, or interest on the debt securities of such series will be determined, if these amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index; |
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any provisions relating to any security provided for the debt securities of such series; |
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any addition to, deletion of or change in the Events of Default described in this prospectus or in the indenture with respect to the debt securities of such series and any change in the acceleration provisions described in this prospectus or in the indenture with respect to such debt securities; |
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any addition to, deletion of or change in the covenants described in this prospectus or in the indenture with respect to the debt securities of such series; |
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities of such series; |
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the provisions, if any, relating to conversion or exchange of any debt securities of such series, including if applicable, the conversion or exchange price and period, provisions as to whether conversion or exchange will be mandatory, at the option of holders or at our option, the events requiring an adjustment of the conversion or exchange price and provisions affecting conversion or exchange; |
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any other terms of the debt securities of such series, which may supplement, modify or delete any provision of the indenture as it applies to that series, including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of such debt securities; and |
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whether any of our direct or indirect subsidiaries will guarantee the debt securities of that series, including the terms of subordination, if any, of such guarantees. |
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:
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we are the surviving corporation or the successor person (if other than BiomX) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture; and |
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immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing. |
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:
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default in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; |
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default in the payment of principal or premium, if any, of any debt security of that series at its maturity; |
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default in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues uncured for a period of 60 days after we receive written notice from the trustee or we and the trustee receive written notice from the holders of not less than a majority in principal amount of the outstanding debt securities of that series as provided in the indenture; |
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certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of us; and |
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any other Event of Default provided with respect to debt securities of that series that is described in the applicable prospectus supplement. |
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:
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that holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of that series; and |
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the holders of not less than a majority in principal amount of the outstanding debt securities of that series have made written request, and offered indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as trustee, and the trustee has not received from the holders of not less than a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days. |
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:
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to cure any ambiguity, defect or inconsistency; |
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to comply with covenants in the indenture described above under the heading “Consolidation, Merger and Sale of Assets”; |
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to provide for uncertificated securities in addition to or in place of certificated securities; |
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to add guarantees with respect to debt securities of any series or secure debt securities of any series; |
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to surrender any of our rights or powers under the indenture; |
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to add covenants or events of default for the benefit of the holders of debt securities of any series; |
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to comply with the applicable procedures of the applicable depositary; |
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to make any change that does not adversely affect the rights of any holder of debt securities; |
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to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the indenture; |
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to effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of the provisions of the indenture to provide for or facilitate administration by more than one trustee; or |
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to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act. |
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:
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reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
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reduce the rate of or extend the time for payment of interest (including default interest) on any debt security; |
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reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities; |
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reduce the principal amount of discount securities payable upon acceleration of maturity; |
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waive a default in the payment of the principal of, premium or interest on any debt security (except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted from such acceleration); |
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make the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security; |
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make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive payment of the principal of, premium and interest on those debt securities and to institute suit for the enforcement of any such payment and to waivers or amendments; or |
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waive a redemption payment with respect to any debt security. |
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:
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we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants which may be set forth in the applicable prospectus supplement; and |
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any omission to comply with those covenants will not constitute a Default or an Event of Default with respect to the debt securities of that series (“covenant defeasance”). |
The conditions include:
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depositing with the trustee 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 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 of, 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; and |
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delivering to the trustee an opinion of counsel to the effect 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 and related covenant defeasance 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 and related covenant defeasance had not occurred. |
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:
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by the depositary for such registered global security to its nominee; |
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by a nominee of the depositary to the depositary or another nominee of the depositary; or |
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by the depositary or its nominee to a successor of the depositary or a nominee of the successor. |
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:
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ownership of beneficial interests in a registered global security will be limited to persons that have accounts with the depositary for the registered global security, those persons being referred to as “participants,” or persons that may hold interests through participants; |
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upon the issuance of a registered global security, the depositary for the registered global security will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal amounts of the debt securities represented by the registered global security beneficially owned by the participants; |
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any dealers, underwriters or agents participating in the distribution of the debt securities will designate the accounts to be credited; and |
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ownership of any beneficial interest in the registered global security will be shown on, and the transfer of any ownership interest will be effected only through, records maintained by the depositary for the registered global security (with respect to interests of participants) and on the records of participants (with respect to interests of persons holding through participants). |
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:
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will not be entitled to have the debt securities represented by a registered global security registered in their names; |
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will not receive or be entitled to receive physical delivery of the debt securities in the definitive form; and |
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will not be considered the owners or holders of the debt securities under the applicable indenture. |
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.
DESCRIPTION OF WARRANTS
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 December 5, 2023, we have an aggregate of 13,652,974 warrants outstanding to purchase an aggregate of up to 9,215,475 shares
of common stock with a weighted average exercise price of $9.51, 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 over-the-counter market under the symbol “PHGEW,”
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:
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the offering price and aggregate number of warrants offered; |
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the currency for which the warrants may be purchased or exercised; |
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if applicable, the terms of the common stock with which the warrants are issued and the number of warrants issued with such common stock; |
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if applicable, the date on and after which the warrants and the related common stock will be separately transferable; |
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the number of shares of common stock or other securities purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise; |
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the manner in which the warrants may be exercised, which may include by cashless exercise; |
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants; |
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the terms of any rights to redeem or call the warrants; |
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any provisions for changes to or adjustments in the exercise price or number of shares of common stock issuable upon exercise of the warrants; |
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the dates on which the right to exercise the warrants will commence and expire; |
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the manner in which the warrant agreement and warrants may be modified; |
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the material United States federal income tax consequences of holding or exercising the warrants; |
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the terms of the common stock issuable upon exercise of the warrants; and |
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
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.
Outstanding Warrants
The shares of common stock registered under the registration statement
of which this prospectus is a part include up to 2,812,501 shares of common stock issuable upon exercise of warrants that were issued
under our registration statement on Form S-3 declared effective on December 11, 2020 (Registration No. 333-235151). Such warrants were
issued on July 28, 2021, have an exercise price of $5.00 per share and expire on January 28, 2027.
No prospectus supplement will be delivered in connection with the issuance
of these shares of common stock pursuant to the exercise of such warrants.
DESCRIPTION OF UNITS
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 December 5, 2023, 221,081 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:
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the designation and terms of the units, including whether and under what circumstances the securities comprising the units may be held or transferred separately; and |
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or the securities comprising the units. |
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.
PLAN OF DISTRIBUTION
We may sell the securities being offered hereby in one or more of the
following ways from time to time:
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through agents to the public or to investors; |
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to one or more underwriters or distributors for resale to the public or to investors; |
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in “at the market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act; |
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directly to investors in privately negotiated transactions; |
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directly to a purchaser pursuant to what is known as an “equity line of credit” as described below; |
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through a combination of these methods of sale; or |
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upon exercise of outstanding warrants. |
The securities that we distribute by any of these methods may be sold,
in one or more transactions, at:
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a fixed price or prices, which may be changed; |
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market prices prevailing at the time of sale; |
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prices related to prevailing market prices; or |
The accompanying prospectus supplement will describe the terms of the
offering of our securities, including:
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the name or names of any agents or underwriters; |
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any securities exchange or market on which the common stock may be listed; |
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the purchase price and commission, if any, to be paid in connection with the sale of the securities being offered and the proceeds we will receive from the sale; |
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any over-allotment options pursuant to which underwriters may purchase additional securities from us; |
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any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; |
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any public offering price; and |
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any discounts or concessions allowed or reallowed or paid to dealers. |
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.
To the extent that we make sales to or through one or more underwriters
or agents in at-the-market offerings, we will do so pursuant to the terms of a distribution agreement between us and the underwriters
or agents. If we engage in at-the-market sales pursuant to a distribution agreement, we will sell any of our listed securities to or through
one or more underwriters or agents, which may act on an agency basis or on a principal basis. During the term of any such agreement, we
may sell any of our listed securities on a daily basis in exchange transactions or otherwise as we agree with the underwriters or agents.
The distribution agreement will provide that any of our listed securities which are sold will be sold at prices related to the then prevailing
market prices for our listed securities. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot
be determined at this time and will be described in a prospectus supplement. Pursuant to the terms of the distribution agreement, we also
may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase, blocks of our listed securities. The
terms of each such distribution agreement will be set forth in more detail in a prospectus supplement to this prospectus.
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 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:
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Stabilizing transactions — Underwriters may make bids or purchases for the purpose of pegging, fixing or maintaining the price of the shares, so long as stabilizing bids do not exceed a specified maximum. |
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Options to purchase additional stock and syndicate covering transactions — Underwriters may sell more shares of our common stock than the number of shares that they have committed to purchase in any underwritten offering. This creates a short position for the underwriters. This short position may involve either “covered” short sales or “naked” short sales. Covered short sales are short sales made in an amount not greater than the underwriters’ option to purchase additional shares in any underwritten offering. The underwriters may close out any covered short position either by exercising their option or by purchasing shares in the open market. To determine how they will close the covered short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market, as compared to the price at which they may purchase shares through their option. Naked short sales are short sales in excess of the option. The underwriters must close out any naked position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that, in the open market after pricing, there may be downward pressure on the price of the shares that could adversely affect investors who purchase shares in the offering. |
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Penalty bids — If underwriters purchase shares in the open market in a stabilizing transaction or syndicate covering transaction, they may reclaim a selling concession from other underwriters and selling group members who sold those shares as part of the offering. |
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. 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.
LEGAL MATTERS
Sullivan & Worcester LLP, Boston, Massachusetts, passed 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.
EXPERTS
The financial statements incorporated in this prospectus by
reference to the Current Report on Form 8-K dated December 7, 2023 have been so incorporated in reliance on the report (which
contains an explanatory paragraph relating to the Company’s ability to continue as a going concern as described in Note 1c to
the financial statements) of Kesselman & Kesselman, Certified Public Accountants (Isr.), a member firm of PricewaterhouseCoopers
International Limited (PwC), an independent registered public accounting firm, given on the authority of said firm as experts in
auditing and 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 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:
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Our Annual Report on Form 10-K for the year ended December 31, 2022 filed with the SEC on March 29, 2023; |
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Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023 and
September 30, 2023, as filed with the SEC on May 15, 2023, August 9, 2023 and November 14, 2023, respectively; |
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Our Current Reports on Form 8-K filed with the SEC on January
6, 2023, February 22, 2023
(other than Item 7.01 and Exhibit 99.1 furnished therewith), February
27, 2023, March 29, 2023 (Item
5.08 only), April 25, 2023,
May 5, 2023, May
15, 2023 (Item 5.02 only), June
8, 2023, June 20, 2023, August
29, 2023, October 18, 2023,
October 31, 2023, November
29, 2023 (other than Item 7.01 and Exhibit 99.1 furnished therewith) and December 7, 2023; |
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The information identified as incorporated by references under Items 10, 11, 12, 13 and 14 of Part III
of our Annual Report on Form 10-K for the year ended December 31, 2022 from our definitive Proxy Statement for our 2023 Annual
Meeting of Shareholders dated July 28, 2023; and |
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The description of our common stock, warrants and units contained in the Registration Statement on Form 8-A filed on December 13, 2018, under the Exchange Act, including any amendment or report filed or to be filed for the purpose of
updating such description. |
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 22 Einstein St., Floor 4, Ness Ziona, Israel, Attention: Mr. Avraham Gabay, Interim Chief Financial Officer, or +972 723942377,
respectively.
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.
PROSPECTUS |
Subject to Completion, dated December 7,
2023 |
Up to $7,500,000
Common Stock
We have entered into an At the Market Offering
Agreement, or offering agreement, with H.C. Wainwright & Co., LLC, or Wainwright, dated December 7, 2023, 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 offering agreement,
we may offer and sell shares of our common stock having an aggregate offering price of up to $7,500,000 from time to time through Wainwright
acting as sales agent, at our discretion.
As of December 5, 2023, the aggregate market value
worldwide of our outstanding voting and non-voting common equity held by non-affiliates, as calculated pursuant to the rules of the Securities
and Exchange Commission, was approximately $28,155,047, based on 45,929,930 shares of common stock outstanding held by non-affiliates
at a per share of common stock price of $0.61 based on the closing sale price of our common stock on the NYSE American on November 24,
2023. As of the date hereof, we have sold or offered 200 shares of common stock for a total of approximately $124 pursuant to General
Instruction I.B.5 of Form S-3 during the prior 12 calendar month period that ends on and includes the date hereof. Pursuant to General
Instruction I.B.6 of Form S-3, in no event will we sell securities registered on this registration statement of which any prospectus supplement
forms a part in a public primary offering with a value exceeding one-third of our outstanding voting and nonvoting common equity held
by non-affiliates (the “public float”) in any 12-month period so long as our public float remains below $75 million.. As a
result of these limitations and the current public float of our common stock, and in accordance with the terms of the offering agreement,
we currently plan to offer and sell common stock having an aggregate offering price of up to $7,500,000 from time to time through Wainwright
under the offering agreement. If our public float increases such that we may sell additional amounts under the offering agreement and
the registration statement of which this prospectus is a part, we will file a prospectus supplement prior to making additional sales.
Our common stock is listed on the NYSE American
Stock Market, NYSE American, under the symbol “PHGE”. On December 5, 2023, the last reported sale price of our common stock
on the NYSE American was $0.28 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, including sales made directly on or through NYSE American, or any
other existing trading market in the United States for our common stock, sales made to or through a market maker other than on an exchange
or otherwise, directly to Wainwright as principal, in negotiated transactions at market prices prevailing at the time of sale or at prices
related to such prevailing market prices and/or in any other method permitted by law. If we and Wainwright agree on any method of distribution
other than sales of shares of our common stock on or through the NYSE American or another existing trading market in the United States
at market prices, we will file a further prospectus supplement providing all information about such offering as required by Rule 424(b)
under the Securities Act. Wainwright 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 Wainwright
and us. Our common stock to which this prospectus relates will be sold through Wainwright on any given day. There is no arrangement for
funds to be received in any escrow, trust or similar arrangement.
Wainwright will be entitled to compensation at
a commission rate equal to 3.0% of the gross sales price of any shares of common stock sold under the offering agreement. In connection
with the sale of the common stock on our behalf, Wainwright will be deemed to be an “underwriter” within the meaning of the
Securities Act, and the compensation of Wainwright may be deemed to be underwriting commissions or discounts. We have also agreed to provide
indemnification and contribution to Wainwright with respect to certain liabilities, including liabilities under the Securities Act. See
“Plan of Distribution” beginning on page 12 regarding the compensation to be paid to Wainwright.
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 7 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.
H.C. Wainwright & Co.
The date of this prospectus is ,
2023.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
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.
We further note that the representations, warranties
and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference herein were made
solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties
to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties
or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied
on as accurately representing the current state of our affairs.
You should rely only on the information contained
in or incorporated by reference into this prospectus and the accompanying prospectus. We have not, and Wainwright has not, authorized
anyone to provide you with information that is different than or inconsistent with the information contained in or incorporated by reference
into this prospectus or in any free writing prospectus that we have authorized for use in connection with this offering. 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.
WHERE YOU CAN FIND MORE 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 reference 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 omit 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:
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Our Annual Report on Form 10-K for the year ended December 31, 2022 filed with the SEC on March 29, 2023; |
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Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023 and
September 30, 2023, as filed with the SEC on May 15, 2023, August 9, 2023 and November 14, 2023, respectively; |
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The information identified as incorporated by references under Items 10, 11, 12, 13 and 14 of Part III
of our Annual Report on Form 10-K for the year ended December 31, 2022 from our definitive Proxy Statement for our 2023 Annual
Meeting of Shareholders dated July 28, 2023; |
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Our Current Reports on Form 8-K filed with the SEC on January
6, 2023, February 22, 2023
(other than Item 7.01 and Exhibit 99.1 furnished therewith), February
27, 2023, March 29, 2023 (Item
5.08 only), April 25, 2023,
May 5, 2023, May
15, 2023 (Item 5.02 only), June
8, 2023, June 20, 2023, August
29, 2023, October 18, 2023,
October 31, 2023, November
29, 2023 (other than Item 7.01 and Exhibit 99.1 furnished therewith) and December 7, 2023; and |
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The descriptions of our common stock, warrants and units contained in the Registration Statement on Form 8-A filed on December 13, 2018, under the Exchange Act, including any amendment or report filed or to be filed for the purpose of
updating such descriptions. |
All documents filed by us pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act (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 22 Einstein St., Floor 4, Ness Ziona, Israel, Attention: Mr. Avraham Gabay, Interim Chief Financial Officer, or +972
723942377, respectively.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING INFORMATION
This prospectus, the accompanying base 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, Section 27A of the Securities Act of 1933, as amended, or
the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and other securities laws.
The statements contained herein that are not purely historical, are forward-looking statements. Forward-looking statements include statements
about our expectations, beliefs, plans, objectives, intentions, assumptions and other statements that are not historical facts. Words
or phrases such as “anticipate,” “believe,” “continue,” “estimate,” “expect,”
“intend,” “may,” “ongoing,” “plan,” “potential,” “predict,” “project,”
“will” or similar words or phrases, or the negatives of those words or phrases, may identify forward-looking statements, but
the absence of these words does not necessarily mean that a statement is not forward-looking. For example, we are making forward-looking
statements when we discuss our business strategy and plans, our clinical and pre-clinical development program, including timing, milestones
and the design thereof, including acceptance of regulatory agencies of such design, the potential opportunities for and benefits of the
BacteriOphage Lead to Treatment, or BOLT, platform, the potential of our product candidates and the sufficiency of financial resources
and financial needs and ability to continue as a going concern. However, you should understand that these statements are not guarantees
of performance or results, and there are a number of risks, uncertainties and other important factors that could cause our actual results
to differ materially from those expressed in the forward-looking statements, including, among others:
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the ability to generate revenues, and raise sufficient financing to meet working capital requirements; |
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our ability to continue as a going concern absent access to sources of liquidity; |
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the unpredictable timing and cost associated with our approach to developing product candidates using phage technology; |
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military, political and economic instability in the state of Israel, and in particular, the war situation in Israel that was declared by the security cabinet of the state of Israel; |
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political and economic instability, including, without limitation, due to natural disasters or other catastrophic events, such as the Russian invasion of Ukraine and world sanctions on Russia, Belarus, and related parties, terrorist attacks, hurricanes, fire, floods, pollution and earthquakes; |
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obtaining U.S. Food Drug Administration, or FDA, acceptance of any non-U.S. clinical trials of product candidates; |
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our ability to enroll patients in clinical trials and achieve anticipated development milestones when expected; |
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the ability to pursue and effectively develop new product opportunities and acquisitions and to obtain value from such product opportunities and acquisitions; |
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penalties and market withdrawal associated with any unanticipated problems with product candidates and failure to comply with labeling and other restrictions; |
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expenses associated with compliance with ongoing regulatory obligations and successful continuing regulatory review; |
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market acceptance of our product candidates and ability to identify or discover additional product candidates; |
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our ability to obtain high titers for specific phage cocktails necessary for preclinical and clinical testing; |
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the ability of our product candidates to demonstrate safety and efficacy for drug products, or safety, purity and potency for biologics without causing adverse effects; |
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expected benefits from FDA fast track designation for our BX004 product candidate; |
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the success of expected future advanced clinical trials of our product candidates; |
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our ability to obtain required regulatory approvals; |
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delays in developing manufacturing processes for our product candidates; |
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the continued impact of 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; |
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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; |
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the impact of unfavorable pricing regulations, third-party reimbursement practices or healthcare reform initiatives on our ability to sell product candidates or therapies profitably; |
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protection of our intellectual property rights and compliance with the terms and conditions of current and future licenses with third parties; |
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infringement on the intellectual property rights of third parties and claims for remuneration or royalties for assigned service invention rights; |
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our ability to acquire, in-license or use proprietary rights held by third parties necessary to our product candidates or future development candidates; |
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ethical, legal and social concerns about synthetic biology and genetic engineering that may adversely affect market acceptance of our product candidates; |
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reliance on third-party collaborators; |
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our ability to attract and retain key employees or to enforce the terms of noncompetition agreements with employees; |
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the failure to comply with applicable laws and regulations other than drug manufacturing compliance; |
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potential security breaches, including cybersecurity incidents; |
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other factors described in the documents incorporated by reference in this prospectus and any prospectus supplement. |
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 in 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 7 of this prospectus, page 2 of the accompanying prospectus,
and in our Annual Report on Form 10-K
for the fiscal year ended December 31, 2022 and our Quarterly Report on Form
10-Q for the quarter ended September 30, 2023, 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 stage product discovery company
developing products using both natural and engineered phage technologies designed to target and kill specific harmful bacteria associated
with chronic diseases, such as cystic fibrosis, or CF. 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 utilizing 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.
In our therapeutic programs, we focus on using
phage therapy to target specific strains of pathogenic bacteria that are associated with diseases. Our phage-based product candidates
are developed utilizing our proprietary research and development platform named BOLT. The BOLT platform is unique, employing cutting edge
methodologies and capabilities across disciplines including computational biology, microbiology, synthetic engineering of phage and their
production bacterial hosts, bioanalytical assay development, manufacturing and formulation, to allow agile and efficient development of
natural or engineered phage combinations, or cocktails. The cocktail contains phage with complementary features and is optimized for multiple
characteristics such as broad target host range, ability to prevent resistance, biofilm penetration, stability and ease of manufacturing.
Our goal is to develop multiple products based
on the ability of phage to precisely target harmful bacteria and on our ability to screen, identify and combine different phage, both
naturally occurring and created using synthetic engineering, to develop these treatments.
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 22 Einstein St., Floor 4,
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.
THE OFFERING
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Common stock to be offered by us |
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Shares of common stock, par value $0.0001 per share, having an aggregate offering price of up to $7,500,000. |
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Common stock to be outstanding after this offering |
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Up to 26,501,767 shares, assuming sales at a price of $0.28 per share, which was the closing price of our common stock on the NYSE American on December 5, 2023. The actual number of shares issued will vary depending on the sales price under this offering. |
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Manner of offering |
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“At the market offering” as defined in Rule 415(a)(4) under the Securities Act, that may
be made from time to time on the NYSE American, the existing trading market for our common stock, through Wainwright, as agent or principal.
See “Plan of Distribution” on page 12 of this prospectus. |
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Use of Proceeds |
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We expect to use the net proceeds of 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, repayment of our debt and for working capital and other
general corporate purposes. See “Use of Proceeds” on page 10. |
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Risk Factors |
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Investing in our common stock involves significant risks. See “Risk Factors” beginning on
page 7 of this prospectus and page 2 of the accompanying prospectus and under similar headings in other documents filed after the
date hereof and incorporated by reference into this prospectus and the accompanying prospectus for a discussion of the risks you
should carefully consider before deciding to invest in our securities. |
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NYSE American and TASE symbols |
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“PHGE” |
The number of shares of common
stock that will be outstanding after this offering as shown above is based on 45,979,730 shares of common stock outstanding as of September
30, 2023 and assumes no exercise of outstanding options or warrants to purchase additional shares and excludes as of such date:
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5,910,336 shares of common stock issuable upon the exercise of outstanding
stock options as of September 30, 2023 at a weighted-average exercise price of $2.22 per share; |
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1,145,044 shares of common stock reserved for future issuances under
our stock option plans; |
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9,215,475 shares of common stock issuable upon the exercise of outstanding
warrants as of September 30, 2023 at a weighted-average exercise price of $9.51, per share with exercise prices ranging from zero to $11.50; |
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up to an aggregate 4,000,000 shares of common stock issuable in 2024 and 2026 to certain of our stockholders who were stockholders when we entered into a business combination in 2017 if certain conditions with respect to the price of our common stock are met; and |
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14,610,714 shares of common stock issuable upon the exercise of outstanding pre-funded warrants as of September 30, 2023 at an exercise price of $0.001 per share. |
Unless otherwise indicated, all
information in this prospectus assumes no exercise of the outstanding options or warrants described above.
RISK FACTORS
An investment in our 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 and our most recent Quarterly Report on Form
10-Q 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 $7,500,000 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. If we do not invest or apply the net
proceeds from this offering in ways that enhance shareholder value, we may fail to achieve expected financial results, which could cause
our stock price to decline. In addition, our failure to effectively apply the net proceeds from this offering could have a material adverse
effect on our business, results of operations, financial condition and prospects.
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 26,501,767 shares of our common stock are sold at a price of $0.28 per share, the last reported sale price of our common stock on the
NYSE American on December 5, 2023, for aggregate gross proceeds of up to approximately $7,500,000, and after deducting commissions and
estimated aggregate offering expenses payable by us, you will experience immediate dilution of $0.07 per share, representing the difference
between our pro forma as adjusted net tangible book value per share as of September 30, 2023 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 Wainwright.
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.
The shares of common stock offered hereby will be sold in “at-the-market”
offerings, and investors who buy shares at different times will likely pay different prices.
Investors who purchase shares of common stock under
this prospectus supplement at different times will likely pay different prices, and so may experience different outcomes in their investment
results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares of common stock sold, and
there is no minimum or maximum sales price. Investors may experience a decline in the value of their shares of common stock as a result
of sales made at prices lower than the prices they paid.
The actual number of shares of common stock we will issue under
the offering agreement in this offering, at any one time or in total, is uncertain and the resulting gross proceeds is uncertain.
Subject to certain limitations in the offering
agreement and compliance with applicable law, we have the discretion to deliver a sales notice to Wainwright at any time throughout the
term of the offering under this prospectus. The number of shares of common stock that are sold by Wainwright after the delivery of a sales
notice will fluctuate based on the market price of the shares of common stock during the sales period and limits we set with Wainwright.
Because the price per share of each share of common stock sold will fluctuate based on the market price of our shares during the sales
period, it is not possible at this stage to predict the number of shares of common stock that will be ultimately issued or the gross proceeds
to be raised in connection with those issuances.
We conduct our operations in Israel. Conditions in Israel,
including the recent attack by Hamas and other terrorist organizations and Israel’s war against them, may affect our operations.
Our headquarters and principal offices and most
of our operations are located in the State of Israel. In addition, all of our key employees and officers are residents of Israel. Accordingly,
political, economic and military conditions in Israel and the surrounding region may directly affect our business.
Any hostilities involving Israel or the interruption
or curtailment of trade between Israel and its present trading partners, or a significant downturn in the economic or financial condition
of Israel, could affect adversely our operations. Ongoing and revived hostilities or other Israeli political or economic factors could
harm our operations, product development and results of operations.
On October 7, 2023, an unprecedented attack was
launched against Israel by terrorists from the Hamas terrorist organization that infiltrated Israel’s southern border from
the Gaza Strip and in other areas within the state of Israel attacking civilians and military targets while simultaneously launching extensive
rocket attacks on the Israeli population. These attacks resulted in extensive deaths, injuries and kidnapping of civilians and soldiers.
In response, the Security Cabinet of the State of Israel declared war against Hamas and a military campaign against these terrorist organizations
commenced in parallel to their continued rocket and terror attacks. To date, the State of Israel continues to be at war with Hamas.
Since the war broke out on October 7, 2023, our
operations have not been adversely affected by this situation and we are not expecting this situation to have a material impact on our
ability to continue our business, including preclinical and clinical trials, and our ability to raise additional capital. However, at
this time, it is not possible to predict the intensity or duration of the war, nor can we predict how this war will ultimately affect
Israel’s economy in general and we continue to monitor the situation closely and examine the potential disruptions that could adversely
affect our operations.
In connection with the Israeli security cabinet’s
declaration of war against Hamas and possible hostilities with other organizations, several hundred thousand Israeli military reservists
were drafted to perform immediate military service. While none of our material employees or consultants in Israel have been called to
active military duty, we rely on service providers located in Israel and have entered into certain agreements with Israeli counterparties,
including a collaboration agreement related to research and development activities. Employees of such service providers or contractual
counterparties may be called for service in the current or future wars or other armed conflicts with Hamas and such persons may be absent
from their positions for a period of time. As of December 5, 2023, we have not been impacted by any absences of personnel at our service
providers or counterparties located in Israel. However, military service call ups that result in absences of personnel from us, our service
providers or contractual counterparties in Israel may disrupt our operations and absences for an extended period of time may materially
and adversely affect our business, prospects, financial condition and results of operations.
Following the attack by Hamas on Israel’s
southern border, Hezbollah in Lebanon has also launched missile, rocket, and shooting attacks against Israeli military sites, troops,
and Israeli towns in northern Israel. In response to these attacks, the Israeli army has carried out a number of targeted strikes on sites
belonging to Hezbollah in southern Lebanon. It is possible that other terrorist organizations, including Palestinian military organizations
in the West Bank, as well as other hostile countries, such as Iran, will join the hostilities. Such hostilities may include terror and
missile attacks. Any hostilities involving Israel or the interruption or curtailment of trade between Israel and its trading partners
could adversely affect our operations and results of operations. Our insurance policies do not cover losses that may occur as a result
of events associated with war and terrorism. Although the Israeli government currently covers the reinstatement value of direct damages
that are caused by terrorist attacks or acts of war, we cannot assure you that this government coverage will be maintained or that it
will sufficiently cover our potential damages. Any losses or damages incurred by us could have a material adverse effect on our business.
Any armed conflicts or political instability in the region would likely negatively affect business conditions and could harm our results
of operations.
Several countries, principally in the Middle East,
still restrict doing business with Israel and Israeli companies, and additional countries may impose restrictions on doing business with
Israel and Israeli companies, whether as a result of hostilities in the region or otherwise. In addition, there have been increased efforts
by activists to cause companies, research institutions and consumers to boycott Israeli goods and cooperation with Israeli-related entities
based on Israeli government policies. Such actions, particularly if they become more widespread, may adversely impact our ability to cooperate
with research institutions and collaborate with other third parties. Any hostilities involving Israel, any interruption or curtailment
of trade or scientific cooperation between Israel and its present partners, or a significant downturn in the economic or financial condition
of Israel could adversely affect our business, financial condition and results of operations. We may also be targeted by cyber terrorists
specifically because we are an Israeli-related company.
Prior to the Hamas attack in October 2023, the
Israeli government pursued extensive changes to Israel’s judicial system. In response to the foregoing developments, individuals,
organizations and institutions, both within and outside of Israel, have voiced concerns that the proposed changes may negatively impact
the business environment in Israel including due to reluctance of foreign investors to invest or transact business in Israel as well as
to increased currency fluctuations, downgrades in credit rating, increased interest rates, increased volatility in securities markets,
and other changes in macroeconomic conditions. The risk of such negative developments has increased in light of the recent Hamas attacks
and the war against Hamas declared by Israel, regardless of the proposed changes to the judicial system and the related debate. To the
extent that any of these negative developments do occur, they may have an adverse effect on our business, our results of operations and
our ability to raise additional funds, if deemed necessary by our management and board of directors.
USE OF PROCEEDS
We currently 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,
repayment of our debt (including under our Loan and Security Agreement, dated August 16, 2021, with Hercules Capital, Inc., the terms
of which are described in the documents incorporated herein by reference) 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.
DIVIDEND POLICY
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.
DILUTION
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, 2023 was approximately $8.2
million, or approximately $0.18 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 offering agreement with Wainwright in the aggregate amount of $7,500,000 at an assumed offering price of $0.28
per share, the last reported sale price of our common stock on the NYSE American on December 5, 2023, and after deducting commissions
and estimated aggregate offering expenses payable by us, our net tangible book value as of September 30, 2023 would have been $15.3 million,
or $0.21 per share of our common stock. This amount represents an immediate increase in net tangible book value to existing stockholders
of $0.03 per share and an immediate dilution in net tangible book value of $0.07 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 |
|
|
|
|
|
$ |
0.28 |
|
Net tangible book value per share as of September 30, 2023 |
|
$ |
0.18 |
|
|
|
|
|
Increase in net tangible book value per share after giving effect to this offering |
|
$ |
0.03 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro forma net tangible book value per share as of September 30, 2023 |
|
|
|
|
|
$ |
0.21 |
|
|
|
|
|
|
|
|
|
|
Dilution in net tangible book value per share to new investors |
|
|
|
|
|
$ |
0.07 |
|
The table above assumes for illustrative purposes
that an aggregate of 26,501,767 shares of our common stock are sold during the term of the offering agreement with Wainwright at a price
of $0.28 per share, the last reported sale price of our common stock on the NYSE American on December 5, 2023, for aggregate gross proceeds
of $7,500,000. In fact, the shares subject to the offering agreement with Wainwright will be sold, if at all, from time to time at prices
that may vary. An increase of $0.10 per share in the price at which the shares are sold from the assumed offering price of $0.28 per share
shown in the table above, assuming all of our common stock in the aggregate amount of $7,500,000 during the term of the offering agreement
with Wainwright is sold at that price, would increase our adjusted net tangible book value per share after the offering to $0.23 per share
and would increase the dilution in net tangible book value per share to new investors in this offering to $0.15 per share, after deducting
commissions and estimated aggregate offering expenses payable by us. A decrease of $0.10 per share in the price at which the shares are
sold from the assumed offering price of $0.28 per share shown in the table above, assuming all of our common stock in the aggregate amount
of $7,500,000 during the term of the offering agreement with Wainwright is sold at that price, would decrease our adjusted net tangible
book value per share after the offering to $0.18 per share and would decrease the dilution in net tangible book value per share to new
investors in this offering to $0.01 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 45,979,730 shares of common stock outstanding as of September 30, 2023 and
assumes no exercise of outstanding options or warrants to purchase additional shares and excludes as of such date:
|
● |
5,910,336 shares of common stock issuable upon the exercise of outstanding
stock options as of September 30, 2023 at a weighted-average exercise price of $2.22 per share; |
|
● |
1,145,044 shares of common stock reserved for future issuances under
our stock option plans; |
|
● |
9,215,475 shares of common stock issuable upon the exercise of outstanding
warrants as of September 30, 2023 at a weighted-average exercise price of $9.51, per share with exercise prices ranging from zero to $11.50; |
|
● |
up to an aggregate 4,000,000 shares of common stock issuable in 2024 and 2026 to certain of our stockholders who were stockholders when we entered into a business combination in 2017 if certain conditions with respect to the price of our common stock are met; and |
|
|
|
|
● |
14,610,714 shares of common stock issuable upon the exercise of outstanding pre-funded warrants as of September 30, 2023 at an average exercise price of $0.001 per share. |
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, 2023 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.
PLAN OF DISTRIBUTION
We have entered into an offering agreement with
Wainwright, under which we may issue and sell, from time to time shares of our common stock having an aggregate offering price of up to
$7,500,000 from time to time through Wainwright acting as agent. Sales of our shares of common stock, if any, under this prospectus will
be made by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 promulgated under the
Securities Act. If we and Wainwright agree on any method of distribution other than sales of shares on or through the NYSE American or
another existing trading market in the United States at market prices, we will file a prospectus supplement providing all information
about such offering as required by Rule 424(b) under the Securities Act.
Wainwright will offer shares of our common stock
at prevailing market prices subject to the terms and conditions of the offering agreement as agreed upon by us and Wainwright. We will
designate the number of shares which we desire to sell, the time period during which sales are requested to be made, any limitation on
the number of shares that may be sold in one day and any minimum price below which sales may not be made. Subject to the terms and conditions
of the offering agreement, Wainwright will use its commercially reasonable efforts consistent with its normal trading and sales practices
to sell on our behalf all of the shares requested to be sold by us. We or Wainwright may suspend the offering of the shares of common
stock being made through Wainwright under the offering agreement upon proper notice to the other party.
Settlement for sales of common stock will occur
on the second trading day or such shorter settlement cycle as may be in effect under Exchange Act from time to time, following the date
on which any sales are made, or on some other date that is agreed upon by us and Wainwright in connection with a particular transaction,
in return for payment of the net proceeds to us. Sales of our shares of our 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 Wainwright may agree upon. There is no arrangement
for funds to be received in an escrow, trust or similar arrangement.
We will pay Wainwright in cash, upon each sale
of shares of our common stock pursuant to the sales shares, a commission of 3.0% of the gross proceeds from each sale of shares. Because
there is no minimum offering amount required as a condition to this offering, the actual total public offering amount, commissions and
proceeds to us, if any, are not determinable at this time. Pursuant to the terms of the offering agreement, we agreed to reimburse Wainwright
for the documented fees and costs of its legal counsel reasonably incurred in connection with entering into the transactions contemplated
by the offering agreement in an amount not to exceed $50,000 in the aggregate. In addition, we have agreed to reimburse Wainwright for
the fees and disbursements of its legal counsel in connection with Wainwright’s ongoing diligence, drafting and other filing requirements
arising from this offering in an amount not to exceed $2,500 in the aggregate per calendar quarter. We estimate that the total expenses
for the offering, excluding compensation and reimbursements payable to Wainwright under the terms of the offering agreement, will be approximately
$170,000.
We will report at least quarterly the number of
shares of our common stock sold through Wainwright under the offering agreement, the net proceeds to us and the compensation paid by us
to Wainwright in connection with the sales of shares of our common stock.
In connection with the sales of shares of our common
stock on our behalf, Wainwright will be deemed an “underwriter” within the meaning of the Securities Act, and the compensation
paid to Wainwright constitutes underwriting commissions or discounts. We have agreed in the offering agreement to provide indemnification
and contribution to Wainwright against certain liabilities, including liabilities under the Securities Act.
The offering of our shares of our common stock
pursuant to the offering agreement will terminate upon the earlier of the sale of all of the shares of our common stock provided for in
this prospectus or termination of the offering agreement as permitted therein.
To the extent required by Regulation M, Wainwright
will not engage in any market making activities involving our common stock while the offering is ongoing under this prospectus
From time to time, Wainwright may provide in the
future various advisory, investment and commercial banking and other services to us in the ordinary course of business, for which they
may receive customary fees and commissions. However, we have no present arrangements with Wainwright for any further services. In addition,
in the ordinary course of its various business activities, Wainwright and its affiliates may make or hold a broad array of investments
and actively trade debt and equity securities (or related derivative securities) and financial instruments (which may include bank loans)
for their own account and for the accounts of their customers. Such investments and securities activities may involve securities and/or
instruments of ours or our affiliates. Wainwright or its affiliates may also make investment recommendations and/or publish or express
independent research views in respect of such securities or financial instruments and may hold, or recommend to clients that they acquire,
long and/or short positions in such securities and instruments.
This summary of the material provisions of the
offering agreement does not purport to be a complete statement of its terms and conditions. We filed a copy of the offering agreement
with the SEC on a Current Report on Form 8-K on December 7, 2023.
This prospectus in electronic format may be made
available on a website maintained by Wainwright and Wainwright may distribute this prospectus electronically.
LEGAL MATTERS
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 Gornitzky & Co., Tel Aviv, Israel. H.C. Wainwright & Co., LLC is being represented in connection with
this offering by Greenberg Traurig, P.A., Tel Aviv, Israel with respect to U.S. law.
EXPERTS
The financial statements incorporated in this
prospectus by reference to the Current Report on Form 8-K dated December 7, 2023 have been so incorporated in reliance on the report
(which contains an explanatory paragraph relating to the Company’s ability to continue as a going concern as described in Note
1c to the financial statements) of Kesselman & Kesselman, Certified Public Accountants (Isr.), a member firm of
PricewaterhouseCoopers International (PwC), an independent registered public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
Up to $7,500,000
Common Stock
H.C. Wainwright & Co.
, 2023
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 borne
by the registrant. All amounts shown are estimates except the Securities and Exchange Commission registration fee and FINRA filing fee.
| |
Amount | |
SEC registration fee | |
$ | 22,140 | |
FINRA filing fee | |
$ | 23,000 | |
Legal fees and expenses | |
$ | 75,000 | |
Accountant’s fees and expenses | |
$ | 42,000 | |
Miscellaneous, printing and transfer agent fees and expenses | |
$ | 7,860 | |
Total | |
$ | 170,000 | |
* |
These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time. |
Item 15. Indemnification of Directors and Officers.
Our Amended and Restated Certificate of Incorporation,
or our Certificate of Incorporation, provides that all our 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.
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. |
|
(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. |
|
(c) |
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. |
|
(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. |
|
(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. |
|
(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).” |
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to our Directors, officers, and controlling persons pursuant to the foregoing provisions, or
otherwise, we have been 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 Certificate of Incorporation provides that no director shall be personally liable to us or any of our 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 Certificate of Incorporation, the liability of
our Directors 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 Certificate of Incorporation limiting or eliminating the liability of 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.
Our Certificate of Incorporation also provides
that we will, to the fullest extent authorized or permitted by applicable law, indemnify our current and former officers and Directors,
as well as those persons who, while Directors 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 Certificate of Incorporation will be indemnified by us in connection with a proceeding
initiated by such person only if such proceeding was authorized by our Board of Directors, except for proceedings to enforce rights to
indemnification.
The right to indemnification conferred by our Certificate
of Incorporation 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 Certificate of Incorporation, our Amended and Restated Bylaws, or our Bylaws, an agreement, vote of stockholders
or disinterested Directors, or otherwise.
Any repeal or amendment of provisions of our Certificate
of Incorporation 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 Certificate of Incorporation
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 Bylaws include the provisions relating to advancement
of expenses and indemnification rights consistent with those set forth in our certificate of incorporation. In addition, our Bylaws 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 Bylaws 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 Bylaws
affecting indemnification rights, whether by our Board of 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 Directors 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 officers.
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.
|
(a) |
The undersigned registrant hereby undertakes: |
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 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.
(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.
EXHIBIT INDEX
1.1** |
|
Form of Underwriting Agreement in connection with the offering of any securities |
|
|
|
1.2* |
|
At the Market Offering Agreement, dated December 7, 2023, between the Company and H.C. Wainwright & Co., LLC |
|
|
|
4.1 |
|
Composite Copy of Amended and Restated Certificate of Incorporation of the Company, effective on December 11, 2018, as amended to date (Incorporated by reference to Exhibit 3.1 to the registrant’s Periodic Report on Form 10-Q filed by the registrant on November 9, 2022) |
|
|
|
4.2 |
|
Amended and Restated Bylaws of BiomX Inc. (incorporated by reference to Exhibit 3.3 of BiomX Inc.’s Current Report on Form 8-K filed with the SEC on November 1, 2019). |
|
|
|
4.3 |
|
Specimen Common Stock Certificate (Incorporated by reference to Exhibit 4.2 to BiomX Inc.’s Registration Statement on Form S-1/A filed with the SEC on December 4, 2018) |
|
|
|
4.4** |
|
Specimen Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock |
|
|
|
4.5 |
|
Form of Indenture. (incorporated by reference to Exhibit 4.5 to BiomX’s Inc.’s Registration Statement on Form S-3 filed with the SEC on December 4, 2020) |
|
|
|
4.6** |
|
Form of Note |
|
|
|
4.7** |
|
Form of Warrant Agreement, including form of Warrant |
|
|
|
4.8** |
|
Form of Unit Agreement |
|
|
|
5.1* |
|
Opinion of Sullivan & Worcester LLP |
|
|
|
23.1* |
|
Consent of Kesselman & Kesselman, Certified Public Accountants (Isr.), a member firm of PricewaterhouseCoopers International Limited |
|
|
|
23.2* |
|
Consent of Sullivan & Worcester LLP (contained in Exhibit 5.1) |
|
|
|
24.1* |
|
Powers of Attorney (included in the signature pages hereto) |
|
|
|
25.1*** |
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Debt Trustee (to be filed prior to any issuance of Debt Securities) |
|
|
|
107* |
|
Filing Fee Table |
** |
To be filed by amendment or incorporated by reference in connection with the offering of any securities, as appropriate. |
*** |
To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939. |
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 statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Ness Ziona, Israel,
on this 7th day of December, 2023.
|
BIOMX INC. |
|
|
|
|
By |
/s/ Jonathan Solomon |
|
|
Jonathan Solomon |
|
|
Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person
whose signature appears below hereby constitutes and appoints each of Jonathan Solomon, Marina Wolfson and Avraham Gabay 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-fact and agents, 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-fact and agents, or either
of them, 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/ Russell Greig |
|
Chairman of the Board of Directors |
|
December 7, 2023 |
Dr. Russell Greig |
|
|
|
|
|
|
|
|
|
/s/ Jonathan Solomon |
|
Chief Executive Officer |
|
December 7, 2023 |
Jonathan Solomon |
|
(Principal Executive Officer) and Director |
|
|
|
|
|
|
|
/s/ Avraham Gabay |
|
Interim Chief Financial Officer |
|
December 7, 2023 |
Avraham Gabay |
|
|
|
|
|
|
|
|
|
/s/ Michael E. Dambach |
|
Director |
|
December 7, 2023 |
Michael E. Dambach |
|
|
|
|
|
|
|
|
|
/s/ Jason M. Marks |
|
Director |
|
December 7, 2023 |
Jason M. Marks |
|
|
|
|
|
|
|
|
|
/s/ Alan C. Moses |
|
Director |
|
December 7, 2023 |
Dr. Alan C. Moses |
|
|
|
|
|
|
|
|
|
/s/ Lynne Sullivan |
|
Director |
|
December 7, 2023 |
Lynne Sullivan |
|
|
|
|
|
|
|
|
|
/s/ Eddie Williams |
|
Director |
|
December 7, 2023 |
Eddie Williams |
|
|
|
|
II-9
Exhibit 1.2
AT THE MARKET OFFERING AGREEMENT
December 7,
2023
H.C. Wainwright & Co., LLC
430 Park Avenue
New York, New York 10022
Ladies and
Gentlemen:
BiomX Inc.,
a corporation organized under the laws of Delaware (the “Company”), confirms its agreement (this “Agreement”)
with H.C. Wainwright & Co., LLC (the “Manager”) as follows:
1.
Definitions. The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.
“Accountants” shall
have the meaning ascribed to such term in Section 4(m).
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Action”
shall have the meaning ascribed to such term in Section 3(p).
“Affiliate”
shall have the meaning ascribed to such term in Section 3(o).
“Applicable
Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant Terms
Agreement.
“Base Prospectus”
shall mean the base prospectus contained in the Registration Statement at the Effective Time.
“Board”
shall have the meaning ascribed to such term in Section 2(b)(iii).
“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).
“Business
Day” shall mean any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are
authorized or required by law to remain closed; provided, however, that, for purposes of clarity, commercial banks
shall not be deemed to be authorized or required by law to remain closed due to “stay at home”,
“shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of
any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems
(including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.
“Commission”
shall mean the United States Securities and Exchange Commission.
“Common
Stock” shall have the meaning ascribed to such term in Section 2.
“Common
Stock Equivalents” shall have the meaning ascribed to such term in Section 3(g).
“Company
Counsel” shall have the meaning ascribed to such term in Section 4(l).
“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).
“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto became
or becomes effective.
“Effective
Time” shall mean the first date and time that the Registration Statement becomes effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Free Writing
Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“GAAP”
shall have the meaning ascribed to such term in Section 3(m).
“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or prior to the Effective Date that are
incorporated by reference in the Registration Statement or the Prospectus and any documents or portions thereof filed with the Commission
after the Effective Date that are deemed to be incorporated by reference in the Registration Statement or the Prospectus.
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3(v).
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Losses”
shall have the meaning ascribed to such term in Section 7(d).
“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).
“Net Proceeds”
shall have the meaning ascribed to such term in Section 2(b)(v).
“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).
“Placement”
shall have the meaning ascribed to such term in Section 2(c).
“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).
“Prospectus”
shall mean the Base Prospectus, as supplemented by the Prospectus Supplement in the Registration Statement at the Effective Time and any
subsequently filed Prospectus Supplement (if any).
“Prospectus Supplement”
shall mean the prospectus supplement (which may be in the form of a standalone prospectus) relating to the Shares contained in the Registration
Statement at the Effective Time and any other prospectus supplement relating to the Shares prepared and filed pursuant to Rule 424(b)
from time to time.
“Registration
Statement” shall mean the shelf registration statement on Form S-3 registering $150,000,000 of securities of the Company
to be filed on or immediately following the Execution Time, including exhibits and financial statements and any prospectus supplement
relating to the Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant
to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective, shall also
mean such registration statement as so amended.
“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).
“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).
“Rule 158”,
“Rule 164”, “Rule 172”, “Rule 173”, “Rule 405”,
“Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433”
refer to such rules under the Act.
“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).
“SEC Reports”
shall have the meaning ascribed to such term in Section 3(m).
“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).
“Subsidiary”
shall have the meaning ascribed to such term in Section 3(a).
“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).
“Time of
Delivery” shall have the meaning ascribed to such term in Section 2(c).
“Trading
Day” means a day on which the Trading Market is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the shares of Company’s common stock are listed or quoted for trading on
the date in question: the NYSE American LLC, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the
New York Stock Exchange (or any successors to any of the foregoing).
2.
Sale and Delivery of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal,
from time to time during the term of this Agreement and on the terms set forth herein, up to the lesser of such number of shares (the
“Shares”) of the Company’s common stock, $0.0001 par value per share (“Common Stock”),
that does not exceed (a) the number or dollar amount of shares of Common Stock registered on the Registration Statement, pursuant to which
the offering is being made, (b) the number of authorized but unissued shares of Common Stock (less the number of shares of Common Stock
issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s
authorized capital stock), (c) the number or dollar amount of shares of Common Stock that would cause the Company or the offering of the
Shares to not satisfy the eligibility and transaction requirements for use of Form S-3, including, if applicable, General Instruction
I.B.6 of Registration Statement on Form S-3 or (d) the number or dollar amount of shares of Common Stock for which the Company has filed
a Prospectus Supplement (the lesser of (a), (b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the
contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 2 on the number and
aggregate sales price of Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Manager
shall have no obligation in connection with such compliance.
(a)
Appointment of Manager as Selling Agent; Terms Agreement. For purposes of selling the Shares through the Manager, the Company
hereby appoints the Manager as exclusive agent of the Company for the purpose of selling the Shares of the Company pursuant to this Agreement
and the Manager agrees to use its commercially reasonable efforts to sell the Shares on the terms and subject to the conditions stated
herein. The Company agrees that, whenever it determines to sell the Shares directly to the Manager as principal, it will enter into a
separate agreement (each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such
sale in accordance with Section 2 of this Agreement.
(b)
Agent Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth,
following the effectiveness of the Registration Statement, the Company will issue and agrees to sell Shares from time to time through
the Manager, acting as sales agent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the
Company, on the following terms:
(i)
The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Manager on any day that (A) is
a Trading Day, (B) the Company has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales
(“Sales Notice”) and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will
designate the maximum amount of the Shares to be sold by the Manager daily (subject to the limitations set forth in Section 2(d)) and
the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Manager shall use its commercially
reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price
of the Shares sold under this Section 2(b) shall be the market price for the shares of Common Stock sold by the Manager under this
Section 2(b) on the Trading Market at the time of sale of such Shares.
(ii)
The Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the
Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell the
Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading
and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager
shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed
by the Manager and the Company pursuant to a Terms Agreement.
(iii) The
Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable
efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s
Board of Directors (the “Board”), or a duly authorized committee thereof, or such duly authorized officers of the
Company, and notified to the Manager in writing. The Company or the Manager may, upon notice to the other party hereto by telephone
(confirmed promptly by electronic mail), suspend the offering of the Shares for any reason and at any time; provided, however,
that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares
sold hereunder prior to the giving of such notice.
(iv)
The Manager may sell Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415
under the Act, including without limitation sales made directly on the Trading Market, on any other existing trading market for the Common
Stock or to or through a market maker. The Manager may also sell Shares in privately negotiated transactions, provided that the Manager
receives the Company’s prior written approval for any sales in privately negotiated transactions and if so provided in the “Plan
of Distribution” section of the Prospectus Supplement or a supplement to the Prospectus Supplement or a new Prospectus Supplement
disclosing the terms of such privately negotiated transaction.
(v)
The compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of 3.0% of the gross sales
price of the Shares sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate of compensation shall not
apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon
at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the Broker Fee and deduction
of any transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory organization in respect of
such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(vi)
The Manager shall provide written confirmation (which may be by electronic mail) to the Company following the close of trading
on the Trading Market each day in which the Shares are sold under this Section 2(b) setting forth the number of the Shares sold on such
day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company to the Manager
with respect to such sales.
(vii) Unless
otherwise agreed between the Company and the Manager, settlement for sales of the Shares will occur at 10:00 a.m. (New York City
time) on the second (2nd) Trading Day (and on and after May 28, 2024, on the first (1st) Trading Day, or
any such shorter settlement cycle as may be in effect under Exchange Act Rule 15c6-1 from time to time) following the date on
which such sales are made (each, a “Settlement Date”). On or before the Trading Day prior to each Settlement
Date, the Company will, or will cause its transfer agent to, electronically transfer the Shares being sold by crediting the
Manager’s or its designee’s account (provided that the Manager shall have given the Company written notice of such
designee at least one Trading Day prior to the Settlement Date) at The Depository Trust Company (“DTC”) through
its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties
hereto which Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each
Settlement Date, the Manager will deliver the related Net Proceeds in same day funds to an account designated by the Company. The
Company agrees that, if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized
Shares on a Settlement Date, in addition to and in no way limiting the rights and obligations set forth in Section 7 hereto, the
Company will (i) hold the Manager harmless against any loss, claim, damage, or reasonable, documented expense (including reasonable
and documented legal fees and expenses), as incurred, arising out of or in connection with such default by the Company, and (ii) pay
to the Manager any commission, discount or other compensation to which the Manager would otherwise have been entitled absent such
default.
(viii)
At each Applicable Time, Settlement Date, and Representation Date, the Company shall be deemed to have affirmed each representation
and warranty contained in this Agreement as if such representation and warranty were made as of such date, modified as necessary to relate
to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable
efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties
of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional
conditions specified in Section 6 of this Agreement.
(ix)
Notwithstanding any other provision of this Agreement, during any period in which the Company is in possession of material non-public
information, the Company and the Manager agree that (i) no sales of Shares will take place, (ii) the Company shall not request the sale
of any Shares, and (iii) the Manager shall not be obligated to sell or offer to sell any Shares.
(x) If the
Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of
shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or
other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of
arrangement or other similar transaction) (a “Distribution” and the record date for the determination of
stockholders entitled to receive the Distribution, the “Record Date”), the Company hereby covenants that, in
connection with any sales of Shares pursuant to a Sales Notice on the Record Date, the Company shall issue and deliver such Shares
to the Manager on the Record Date and the Record Date shall be the Settlement Date and the Company shall cover any additional costs
of the Manager in connection with the delivery of Shares on the Record Date.
(c)
Term Sales. If the Company wishes to sell the Shares pursuant to this Agreement in a manner other than as set forth in Section
2(b) of this Agreement (each, a “Placement”), the Company will notify the Manager of the proposed terms of such Placement.
If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion)
or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement
setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager
unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement.
In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will
control. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment
of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares,
any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and
the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery
of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters
and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(d) Maximum
Number of Shares. Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving
effect to the sale of such Shares, the aggregate amount of Shares sold pursuant to this Agreement would exceed the lesser of (A)
together with all sales of Shares under this Agreement, the Maximum Amount, (B) the amount available for offer and sale under the
currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this
Agreement by the Board, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Manager in
writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a
price lower than the minimum price authorized from time to time by the Board, a duly authorized committee thereof or a duly
authorized executive officer, and notified to the Manager in writing. Further, under no circumstances shall the Company cause or
permit the aggregate offering amount of Shares sold pursuant to this Agreement to exceed the Maximum Amount.
(e)
Regulation M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange
Act are satisfied with respect to the Shares, the Company shall give the Manager at least one (1) Business Day’s prior notice of
its intent to sell any Shares in order to allow the Manager time to comply with Regulation M.
3.
Representations and Warranties. The Company represents and warrants to, and agrees with, the Manager at the Execution Time
and the Effective Time and on each such time that the following representations and warranties are repeated or deemed to be made pursuant
to this Agreement, as set forth below, except as set forth in the Registration Statement, the Prospectus or the Incorporated Documents.
(a)
Subsidiaries. All of the direct and indirect subsidiaries (individually, a “Subsidiary”) of the Company
are set forth on Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K filed with the Commission, other than RondinX
Ltd. The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of
any “Liens” (which for purposes of this Agreement shall mean a lien, charge, security interest, encumbrance, right
of first refusal, preemptive right or other restriction), and all of the issued and outstanding shares of capital stock of each Subsidiary
are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and
authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation nor in default of any of the provisions of its respective certificate or articles of incorporation,
bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business
and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the
case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or
enforceability of this Agreement, (ii) a material adverse effect on the results of operations, assets, business, prospects or
condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, from that set forth in the Registration
Statement, the Base Prospectus, any Prospectus Supplement, the Prospectus or the Incorporated Documents, or (iii) a material adverse
effect on the Company’s ability to perform in any material respect on a timely basis its obligations under this Agreement (any
of (i), (ii) or (iii), a “Material Adverse Effect”) and no “Proceeding” (which for purposes of
this Agreement shall mean any action, claim, suit, investigation or proceeding (including, without limitation, an informal
investigation or partial proceeding, such as a deposition), whether commenced or threatened) has been instituted in any such
jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(c)
Authorization and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the Company, the Board or the Company’s stockholders in connection
herewith other than in connection with the Required Approvals. This Agreement has been duly executed and delivered by the Company and,
when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited
by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares and the
consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the
Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter
documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a
default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to
others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt
or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the
Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to
which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property
or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could
not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
“Person” (defined as an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture,
limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind, including
the Trading Market) in connection with the execution, delivery and performance by the Company of this Agreement, other than (i) the filings
required by this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the filing of application(s) to and
approval by the Trading Market for the listing of the Shares for trading thereon in the time and manner required thereby, and (iv) such
filings as are required to be made under applicable state securities laws and the rules and regulations of the Financial Industry Regulatory
Authority, Inc. (“FINRA”) (collectively, the “Required Approvals”).
(f)
Issuance of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will
be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved
from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement. On and after
the Effective Time, the issuance by the Company of the Shares has been registered under the Act and all of the Shares are freely transferable
and tradable by the purchasers thereof without restriction (other than any restrictions arising solely from an act or omission of such
a purchaser). The Shares are being issued pursuant to the Registration Statement and, on and after the Effective Time, the issuance of
the Shares has been registered by the Company under the Act. The “Plan of Distribution” section within the Registration
Statement permits the issuance and sale of the Shares as contemplated by this Agreement. Upon receipt of the Shares, the purchasers of
such Shares will have good and marketable title to such Shares and the Shares will be freely tradable on the Trading Market.
(g) Capitalization.
The capitalization of the Company is as set forth in the SEC Reports. The Company has not issued any capital stock since its most
recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the
Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee
stock purchase plan, pursuant to the conversion and/or exercise of securities exercisable, exchangeable or convertible into Common
Stock (“Common Stock Equivalents”) outstanding as of the date of the most recently filed periodic report under
the Exchange Act or the issuance of the Company’s shares of common stock under the Open Market Sale Agreement, dated December
4, 2020, by and between the Company and Jefferies LLC. No Person has any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the transactions contemplated by this Agreement. Except as set forth in the
SEC Reports, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any
Person any right to subscribe for or acquire, any shares of Common Stock or the capital stock of any Subsidiary, or contracts,
commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares
of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of the Shares will not
obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person. There are no outstanding
securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or
reset price of such security or instrument upon an issuance of securities by the Company or any Subsidiary. There are no outstanding
securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no
contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a
security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock”
plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly
authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws,
and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase
securities. No further approval or authorization of any stockholder, the Board or others is required for the issuance and sale of
the Shares. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s
capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s
stockholders.
(h) Registration
Statement. The Company meets the requirements for use of Form S-3 under the Act and will file, on or immediately following
the Execution Time, with the Commission the Registration Statement, including a related Base Prospectus, for registration under the
Act of the offering and sale of the Shares. After the Effective Time, such Registration Statement will be effective and available
for the offer and sale of the Shares as of the date hereof. As filed, the Base Prospectus contains all information required by the
Act and the rules thereunder, and, except to the extent the Manager shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to the Manager prior to the Execution Time or prior to any such time this representation
is repeated or deemed to be made. The Registration Statement, at the Execution Time, each such time this representation is repeated
or deemed to be made, and at all times during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172, 173 or any similar rule) in connection with any offer or sale of the Shares, meets the
requirements set forth in Rule 415(a)(1)(x). The Company meets the transaction requirements as set forth in General Instruction
I.B.1 of Form S-3 or, if applicable, as set forth in General Instruction I.B.6 of Form S-3 with respect to the aggregate market
value of securities being sold pursuant to this offering and during the twelve (12) months prior to this offering.
(i)
Accuracy of Incorporated Documents. The Incorporated Documents, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the rules thereunder, and none of the Incorporated Documents, when they
were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were made not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus, when such documents
are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules thereunder,
as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.
(j)
Ineligible Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Execution
Time and on each such time this representation is repeated or deemed to be made (with such date being used as the determination date for
purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking
account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible
Issuer.
(k) Free
Writing Prospectus. The Company is eligible to use Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus does
not include any information the substance of which conflicts with the information contained in the Registration Statement, including
any Incorporated Documents and any prospectus supplement deemed to be a part thereof that has not been superseded or modified; and
each Issuer Free Writing Prospectus does not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The
foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by the Manager specifically for use therein. Any Issuer Free Writing Prospectus
that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the
requirements of the Act and the rules thereunder. Each Issuer Free Writing Prospectus that the Company has filed, or is required to
file, pursuant to Rule 433(d) or that was prepared by or behalf of or used by the Company complies or will comply in all material
respects with the requirements of the Act and the rules thereunder. The Company will not, without the prior consent of the Manager,
prepare, use or refer to, any Issuer Free Writing Prospectuses.
(l)
Proceedings Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or
examination under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A
of the Act in connection with the offering of the Shares. The Company has not received any notice that the Commission has issued or intends
to issue a stop-order with respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn the effectiveness
of the Registration Statement, either temporarily or permanently, or intends or has threatened in writing to do so.
(m)
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by
the Company under the Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the
date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement,
being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of
such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the
SEC Reports complied in all material respects with the requirements of the Act and the Exchange Act, as applicable, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements
and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have
been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods
involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except
that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial
position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows
for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(n)
[RESERVED]
(o)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements
included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date on which this representation
is being made, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in a
Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and
accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected
in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not
altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to
its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock, (v) the Company
has not issued any equity securities to any officer, director or “Affiliate” (defined as any Person that, directly
or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms
are used in and construed under Rule 144 under the Act), except pursuant to existing Company stock option plans, and (vi) no executive
officer of the Company or member of the Board has resigned from any position with the Company. The Company does not have pending before
the Commission any request for confidential treatment of information. Except for the issuance of the Shares contemplated by this Agreement,
no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist
with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial
condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made
or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made.
(p) Litigation.
Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending
or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective
properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state,
county, local or foreign) (collectively, an “Action”). None of the Actions set forth in the SEC Reports, (i)
adversely affects or challenges the legality, validity or enforceability of this Agreement or the Shares or (ii) could, if there
were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any
Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or
liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of
the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current or
former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Act.
(q)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the
Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that
their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all applicable U.S. federal, state,
local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and
hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(r)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be
expected to result in a Material Adverse Effect.
(s) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to
pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or
subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the
environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments,
licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder
(“Environmental Laws”); (ii) have received all permits licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of
any such permit, license or approval where in each clause (i), (ii) and (iii), the failure to so comply could be reasonably expected
to have, individually or in the aggregate, a Material Adverse Effect.
(t)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the
SEC Reports, except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect
(“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to
the revocation or modification of any Material Permit.
(u)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned
by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which
is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(v) Intellectual
Property. The Company and the Subsidiaries own, or have rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and
similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and
which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property
Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of,
the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned,
within two (2) years from the date of this Agreement, except as would not have a Material Adverse Effect. Neither the Company nor
any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports, a written
notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any
Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company,
all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the
Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(w)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged,
including, but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business without a significant increase in cost.
(x)
Affiliate Transactions. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any
Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or
other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing
for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee
or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is
an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary
or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits,
including stock option agreements under any stock option plan of the Company.
(y) Sarbanes
Oxley Compliance. The Company and the Subsidiaries are in compliance with any and all applicable requirements of the
Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective as of the date hereof. The Company and the Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and
the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for
the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be
disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported,
within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated
the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered
by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company
presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation
Date, there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of
the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control
over financial reporting of the Company and its Subsidiaries.
(z)
Certain Fees. Other than payments to be made to the Manager, no brokerage or finder’s fees or commissions are or will
be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by this Agreement. The Manager shall have no obligation with respect
to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may
be due in connection with the transactions contemplated by this Agreement.
(aa)
No Other Sales Agency Agreement. Except as described in the SEC Reports, the Company has not entered into any other sales
agency agreements or other similar arrangements with any agent or any other representative in respect of at the market offerings of the
Shares.
(bb)
[RESERVED]
(cc) Listing
and Maintenance Requirements. The Common Stock is listed on the Trading Market and the issuance of the Shares as contemplated by
this Agreement does not contravene the rules and regulations of the Trading Market. The Common Stock is registered pursuant to
Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to
have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any
notification that the Commission is contemplating terminating such registration. Except as described in the SEC Reports, the Company
has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has
been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such
Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in
compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer
through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees
to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
(dd)
Application of Takeover Protections. The Company and the Board have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or
other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the
laws of its state of incorporation that is or could become applicable to the Shares.
(ee) Solvency.
Except as set forth in the SEC Reports, based on the consolidated financial condition of the Company as of the date hereof, (i) the
fair saleable value of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the
Company’s existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the
Company’s assets do not constitute unreasonably small capital to carry on its business as now conducted and as proposed to be
conducted including its capital needs taking into account the particular capital requirements of the business conducted by the
Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the
Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all
anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are
required to be paid. Except as set forth in the SEC Reports, the Company does not intend to incur debts beyond its ability to pay
such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt) within one
year from the date hereof. The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for
reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the date hereof.
The SEC Reports set forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary,
or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness”
means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the
ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of
others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto),
except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course
of business; and (z) the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in
accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(ff)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income
and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has
paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns,
reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for
periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for
any such claim.
(gg)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary,
any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt
Practices Act of 1977, as amended.
(hh)
Accountants. The Company’s accounting firm is set forth in the SEC Reports. To the knowledge and belief of the Company,
such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with
respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending December 31, 2023.
(ii)
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases
of, any of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Manager in connection with the Shares.
(jj) FDA.
As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under the Federal
Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured, packaged,
labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a
“Pharmaceutical Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested,
distributed, sold and/or marketed by the Company in compliance with all applicable requirements under FDCA and similar laws, rules
and regulations relating to registration, investigational use, premarket clearance, licensure, or application approval, good
manufacturing practices, good laboratory practices, good clinical practices, product listing, quotas, labeling, advertising, record
keeping and filing of reports, except where the failure to be in compliance would not have a Material Adverse Effect. There is no
pending, completed or, to the Company’s knowledge, threatened, action (including any lawsuit, arbitration, or legal or
administrative or regulatory proceeding, charge, complaint, or investigation) against the Company or any of its Subsidiaries, and
none of the Company or any of its Subsidiaries has received any notice, warning letter or other communication from the FDA or any
other governmental entity, which (i) contests the premarket clearance, licensure, registration, or approval of, the uses of, the
distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and promotion of any Pharmaceutical
Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal of
advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical hold on any clinical
investigation by the Company or any of its Subsidiaries, (iv) enjoins production at any facility of the Company or any of its
Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with the Company or any of its
Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any of its Subsidiaries,
and which, either individually or in the aggregate, would have a Material Adverse Effect. The properties, business and operations of
the Company have been and are being conducted in all material respects in accordance with all applicable laws, rules and regulations
of the FDA. The Company has not been informed by the FDA that the FDA will prohibit the marketing, sale, license or use in the
United States of any product proposed to be developed, produced or marketed by the Company nor has the FDA expressed any concern as
to approving or clearing for marketing any product being developed or proposed to be developed by the Company.
(kk)
Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plans was granted (i)
in accordance with the terms of the Company’s applicable stock option plan and (ii) with an exercise price at least equal to the
fair market value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock
option granted under the Company’s stock option plans has been backdated. The Company has not knowingly granted, and there is no
and has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of
stock options with, the release or other public announcement of material information known at the time of grant regarding the Company
or its Subsidiaries or their financial results or prospects.
(ll)
Cybersecurity. (i)(x) There has been no security breach or other compromise of or relating to any of the Company’s
or any Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its respective
customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively,
“IT Systems and Data”), except as would not individually or in the aggregated have a Material Adverse Effect, and (y)
the Company and the Subsidiaries have not been notified of, and has no knowledge of any event or condition that would reasonably be expected
to result in, any material security breach or other compromise to its IT Systems and Data; (ii) the Company and the Subsidiaries are presently
in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental
or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and
to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, individually
or in the aggregate, have a Material Adverse Effect; (iii) the Company and the Subsidiaries have implemented and maintained commercially
reasonable safeguards to maintain and protect its material confidential information and the integrity, continuous operation, redundancy
and security of all IT Systems and Data; and (iv) the Company and the Subsidiaries have implemented backup and disaster recovery technology
consistent with industry standards and practices.
(mm)
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(nn)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within
the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Manager’s
request.
(oo)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly,
five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total
equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its
Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to
the BHCA and to regulation by the Federal Reserve.
(pp)
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering
Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary,
threatened.
(qq)
FINRA Member Shareholders. There are no affiliations with any FINRA member firm among the Company’s officers, directors
or, to the knowledge of the Company, any five percent (5%) or greater stockholder of the Company, except as set forth in the Registration
Statement, the Base Prospectus, any Prospectus Supplement or the Prospectus.
4.
Agreements. The Company agrees with the Manager that:
(a) Right
to Review Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery of a
prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to
Rule 172, 173 or any similar rule) to be delivered under the Act in connection with the offering or the sale of Shares, the
Company will not file any amendment to the Registration Statement or supplement (including any Prospectus Supplement but other than
any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act) to the Base Prospectus unless the
Company has furnished to the Manager a copy for its review prior to filing and will not file any such proposed amendment or
supplement to which the Manager reasonably objects (provided, however, that the Company will have no obligation to provide the
Manager any advance copy of such filing or to provide the Manager an opportunity to object to such filing if the filing does not
name the Manager and does not relate to the transactions under this Agreement). The Company will cause any supplement to the
Prospectus filed after the Effective Time to be properly completed, in a form approved by the Manager, and will file such supplement
with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed thereby and will
provide evidence reasonably satisfactory to the Manager of such timely filing. The Company will promptly advise the Manager
(i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to
Rule 424(b), (ii) when, during any period when the delivery of a prospectus (whether physically or through compliance with
Rule 172, 173 or any similar rule) is required under the Act in connection with the offering or sale of the Shares, any
amendment to the Registration Statement shall have been filed or become effective (other than any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act), (iii) of any request by the Commission or its staff for any amendment
of the Registration Statement, or for any supplement to the Prospectus or for any additional information, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use
or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the institution or threatening of
any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or
notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection,
including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best
efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b)
Subsequent Events. If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs
as a result of which the Registration Statement or Prospectus would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances
then prevailing not misleading, the Company will (i) notify promptly the Manager so that any use of the Registration Statement or
Prospectus may cease until such are amended or supplemented; (ii) amend or supplement the Registration Statement or Prospectus to
correct such statement or omission; and (iii) supply any such amendment or supplement to the Manager in such quantities as the Manager
may reasonably request.
(c)
Notification of Subsequent Filings. During any period when the delivery of a prospectus relating to the Shares is required
(including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered
under the Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement
the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery
of the Prospectus, the Company promptly will (i) notify the Manager of any such event, (ii) subject to Section 4(a), prepare
and file with the Commission an amendment or supplement or new registration statement which will correct such statement or omission or
effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement
declared effective as soon as practicable in order to avoid any disruption in use of the Prospectus and (iv) supply any supplemented
Prospectus to the Manager in such quantities as the Manager may reasonably request.
(d)
Earnings Statements. As soon as practicable, the Company will make generally available to its security holders and to the
Manager an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158. For the avoidance of doubt, the Company’s compliance with the reporting requirements of the Exchange
Act shall be deemed to satisfy the requirements of this Section 4(d).
(e)
Delivery of Registration Statement. Upon the request of the Manager, the Company will furnish to the Manager and counsel
for the Manager, without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of
a prospectus by the Manager or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant
to Rule 172, 173 or any similar rule), as many copies of the Prospectus and each Issuer Free Writing Prospectus and any supplement
thereto as the Manager may reasonably request. The Company will pay the expenses of printing or other production of all documents relating
to the offering.
(f)
Qualification of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the
laws of such jurisdictions as the Manager may designate and will maintain such qualifications in effect so long as required for the distribution
of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering
or sale of the Shares, in any jurisdiction where it is not now so subject.
(g)
Free Writing Prospectus. The Company agrees that, unless it has or shall have obtained the prior written consent of the
Manager, and the Manager agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent
of the Company, it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company
with the Commission or retained by the Company under Rule 433. Any such free writing prospectus consented to by the Manager or the
Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has
treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it
has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(h) Subsequent
Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously delivered shall not
apply during such three Business Days) for at least three (3) Business Days prior to any date on which the Company or any Subsidiary
offers, sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly, any other shares of
Common Stock or any Common Stock Equivalents (other than the Shares), subject to Manager’s right to waive this obligation,
provided that, without compliance with the foregoing obligation, the Company may issue and sell Common Stock or Common Stock
Equivalents pursuant to any employee equity plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the
Execution Time and the Company may issue Common Stock issuable upon the conversion or exercise of Common Stock Equivalents
outstanding at the Execution Time.
(i)
Market Manipulation. Until the termination of this Agreement, the Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation in violation of the Act, Exchange Act or the rules and regulations thereunder of the price of any security
of the Company to facilitate the sale or resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.
(j)
Notification of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented
from time to time, advise the Manager immediately after it shall have received notice or obtained knowledge thereof, of any information
or fact that would alter or affect any opinion, certificate, letter and other document provided to the Manager pursuant to Section 6
herein.
(k) Certification
of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of
the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30
Trading Days), and each time that (i) the Registration Statement or Prospectus shall be amended or supplemented, other than by means
of Incorporated Documents, (ii) the Company files its Annual Report on Form 10-K under the Exchange Act, (iii) the Company files its
quarterly reports on Form 10-Q under the Exchange Act, (iv) the Company files a Current Report on Form 8-K containing amended
financial information (other than information that is furnished and not filed), if the Manager reasonably determines that the
information in such Form 8-K is material, or (v) the Shares are delivered to the Manager as principal at the Time of Delivery
pursuant to a Terms Agreement (such commencement or recommencement date and each such date referred to in (i), (ii), (iii), (iv) and
(v) above, a “Representation Date”), unless waived by the Manager, the Company shall furnish or cause to be
furnished to the Manager forthwith a certificate dated and delivered on the Representation Date, in form reasonably satisfactory to
the Manager to the effect that the statements contained in the certificate referred to in Section 6 of this Agreement which were
last furnished to the Manager are true and correct at the Representation Date, as though made at and as of such date (except that
such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such date)
or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in said Section 6, modified as
necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the date of delivery of such
certificate. The requirement to provide a certificate under this Section 4(k) shall be waived for any Representation Date occurring
at a time at which no Sales Notice is pending, which waiver shall continue until the earlier to occur of the date the Company
delivers a Sales Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring
Representation Date on which the Company files its Annual Report on Form 10-K. Notwithstanding the foregoing, (x) the Company shall
provide to the Manager with such certificate under this Section 4(k) at the Effective Time and (y) (i) upon the delivery of the
first Sales Notice hereunder and (ii) if the Company subsequently decides to sell Shares following a Representation Date when the
Company relied on such waiver and did not provide the Manager with a certificate under this Section 4(k), then before the Manager
sells any Shares, the Company shall provide the Manager with such a certificate, dated the date of the Sales Notice.
(l) Bring
Down Opinions; Negative Assurance. Within five (5) Trading Days of each Representation Date, unless waived by the Manager, the
Company shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager written opinions of United
States counsel to the Company and Israel counsel to the Company (collectively, “Company Counsel”) addressed to
the Manager and dated and delivered within five (5) Trading Days of such Representation Date, in form and substance reasonably
satisfactory to the Manager, including a negative assurance representation of United States counsel to the Company. The requirement
to furnish or cause to be furnished opinions (but not with respect to a negative assurance representation of United States counsel)
under this Section 4(l) shall be waived for any Representation Date other than a Representation Date on which a material amendment
to the Registration Statement or Prospectus is made or the Company files its Annual Report on Form 10-K or a material amendment
thereto under the Exchange Act, unless the Manager reasonably requests such deliverable required this Section 4(l) in connection
with a Representation Date, upon which request such deliverable shall be deliverable hereunder. The requirement to provide an
opinion or negative assurance representation under this Section 4(l) shall be waived for any Representation Date occurring at a time
at which no Sales Notice is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Sales
Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation
Date on which the Company files its Annual Report on Form 10-K. Notwithstanding the foregoing, (x) the Company shall provide to the
Manager with such opinions and negative assurance under this Section 4(l) at the Effective Time and (y) (i) upon the delivery of the
first Sales Notice hereunder and (ii) if the Company subsequently decides to sell Shares following a Representation Date when the
Company relied on such waiver and did not provide the Manager with opinions and a negative assurance representation under this
Section 4(l), then before the Manager sells any Shares, the Company shall provide the Manager with such opinions and negative
assurance, dated the date of the Sales Notice.
(m)
Auditor Bring Down “Comfort” Letter. Within five (5) Trading Days of each Representation Date, unless waived
by the Manager, the Company shall cause (1) the Company’s auditors (the “Accountants”), or other independent
accountants satisfactory to the Manager forthwith to furnish the Manager a letter, and (2) the Chief Financial Officer of the Company
forthwith to furnish the Manager a certificate, in each case dated within five (5) Trading Days of such Representation Date, in form and
substance satisfactory to the Manager, of the same tenor as the letters and certificate referred to in Section 6 of this Agreement but
modified to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letters and certificate.
The requirement to furnish or cause to be furnished a “comfort” letter under this Section 4(m) shall be waived for any Representation
Date other than a Representation Date on which a material amendment to the Registration Statement or Prospectus is made or the Company
files its Annual Report on Form 10-K or a material amendment thereto under the Exchange Act, unless the Manager reasonably requests the
deliverables required by this Section 4(m) in connection with a Representation Date, upon which request such deliverable shall be deliverable
hereunder. Notwithstanding the foregoing, the requirement to deliver or cause to be delivered one or more letters or certificates under
this Section 4(m) shall, at the request of the Company, be waived for any Representation Date occurring at a time at which no Sales Notice
is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Sales Notice hereunder (which for
such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date on which the Company files
its annual report on Form 10-K. Notwithstanding the foregoing, (x) the Company shall provide the Manager with such letters and certificates
under this Section 4(m) at the Effective Time and (y) (i) upon the delivery of the first Sales Notice hereunder and (ii) if the Company
subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Manager
with a letter or certificate under this Section 4(m), then before the Manager sells any Shares, the Company shall provide the Manager
with such letter and certificate dated the date of the Sales Notice.
(n) Due
Diligence Session. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the
offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30
Trading Days), and at each Representation Date, the Company will conduct a due diligence session, in form and substance, reasonably
satisfactory to the Manager, which shall include representatives of management and Accountants. The Company shall cooperate timely
with any reasonable due diligence request from or review conducted by the Manager or its agents from time to time in connection with
the transactions contemplated by this Agreement, including, without limitation, providing information and available documents and
access to appropriate corporate officers and the Company’s agents during regular business hours, and timely furnishing or
causing to be furnished such certificates, letters and opinions from the Company, its officers and its agents, as the Manager may
reasonably request. The Company shall reimburse the Manager for Manager’s counsel’s fees in each such due diligence
update session, up to a maximum of $2,500 per update, plus any incidental expense incurred by the Manager in connection
therewith.
(o)
Acknowledgment of Trading. The Company consents to the Manager trading in the Common Stock for the Manager’s own account
and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to a Terms Agreement.
(p)
Disclosure of Shares Sold. The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q,
as applicable, the number of Shares sold through the Manager under this Agreement, the Net Proceeds to the Company and the compensation
paid by the Company with respect to sales of Shares pursuant to this Agreement during the relevant quarter; and, if required by any subsequent
change in Commission policy or request, more frequently by means of a Current Report on Form 8-K or a further Prospectus Supplement.
(q)
Rescission Right. If to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied
as of the applicable Settlement Date, the Company will offer to any person who has agreed to purchase Shares from the Company as the result
of an offer to purchase solicited by the Manager the right to refuse to purchase and pay for such Shares.
(r)
Bring Down of Representations and Warranties. Each acceptance by the Company of an offer to purchase the Shares hereunder,
and each execution and delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to the Manager that the representations
and warranties of the Company contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance or
of such Terms Agreement as though made at and as of such date, and an undertaking that such representations and warranties will be true
and correct as of the Settlement Date for the Shares relating to such acceptance or as of the Time of Delivery relating to such sale,
as the case may be, as though made at and as of such date (except that such representations and warranties shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented relating to such Shares).
(s) Reservation
of Shares. The Company shall ensure that there are at all times sufficient shares of Common Stock to provide for the issuance,
free of any preemptive rights, out of its authorized but unissued shares of Common Stock or shares of Common Stock held in treasury,
of the maximum aggregate number of Shares authorized for issuance by the Board pursuant to the terms of this Agreement. The Company
will use its commercially reasonable efforts to cause the Shares to be listed for trading on the Trading Market and to maintain such
listing.
(t) Obligation
Under Exchange Act. During any period when the delivery of a prospectus relating to the Shares is required (including in circumstances
where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act, the Company
will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the
Exchange Act and the regulations thereunder.
(u)
DTC Facility. The Company shall cooperate with the Manager and use its reasonable efforts to permit the Shares to be eligible
for clearance and settlement through the facilities of DTC.
(v)
Use of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus.
(w)
Filing of Prospectus Supplement. If any sales are made pursuant to this Agreement which are not made in “at the market”
offerings as defined in Rule 415, including, without limitation, any Placement pursuant to a Terms Agreement, to the extent required under
the Act, the Company shall file a Prospectus Supplement describing the terms of such transaction, the amount of Shares sold, the price
thereof, the Manager’s compensation, and such other information as may be required pursuant to Rule 424 and Rule 430B, as applicable,
within the time required by Rule 424.
(x)
Additional Registration Statement. To the extent that the Registration Statement is not available for the sales of the Shares
as contemplated by this Agreement, the Company shall file a new registration statement with respect to any additional shares of Common
Stock necessary to complete such sales of the Shares and, upon the filing of such Registration Statement, shall cause such registration
statement to become effective as promptly as practicable. After the effectiveness of any such registration statement, all references to
“Registration Statement” included in this Agreement shall be deemed to include such new registration statement, including
all documents incorporated by reference therein pursuant to Item 12 of Form S-3, and all references to “Base Prospectus”
included in this Agreement shall be deemed to include the final form of prospectus, including all documents incorporated therein by reference,
included in any such registration statement at the time such registration statement became effective.
5. Payment of
Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the preparation,
printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits
thereto), the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such
copies of the Registration Statement, the Prospectus, and each Issuer Free Writing Prospectus, and all amendments or supplements to
any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares;
(iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or
transfer taxes in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Shares; (v) the registration of the Shares under the Exchange Act, if applicable, and the
listing of the Shares on the Trading Market; (vi) any registration or qualification of the Shares for offer and sale under the
securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the
Manager relating to such registration and qualification); (vii) the transportation and other expenses incurred by or on behalf
of Company representatives in connection with presentations to prospective purchasers of the Shares; (viii) the fees and
expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the
Company; (ix) the filing fee under FINRA Rule 5110; (x) the reasonable fees and expenses of the Manager’s counsel, not to
exceed $50,000 (excluding any periodic due diligence fees provided for under Section 4(n)), which shall be paid upon the Execution
Time; and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
6.
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement
shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the
Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the performance
by the Company of its obligations hereunder and (iii) the following additional conditions:
(a)
Effectiveness of the Registration Statement; Filing of Prospectus Supplement. The Registration Statement shall have been
declared effective by the Commission and the Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission
shall have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Prospectus
Supplement shall have been filed in the manner required by Rule 424(b) within the time period required hereunder and under the Act;
any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of the Company, threatened.
(b) Delivery
of Opinion. The Company shall have caused the Company Counsel to furnish to the Manager its opinion and negative assurance
statement, dated as of such date and addressed to the Manager in form and substance acceptable to the Manager.
(c)
Delivery of Officer’s Certificate. The Company shall have furnished or caused to be furnished to the Manager a certificate
of the Company signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company,
dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus,
any Prospectus Supplement and any documents incorporated by reference therein and any supplements or amendments thereto and this Agreement
and that:
(i)
the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect
as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to such date;
(ii)
no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and
no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii)
since the date of the most recent financial statements included in the Registration Statement, the Prospectus and the Incorporated
Documents, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(d)
Delivery of Accountants’ “Comfort” Letter. The Company shall have requested and caused the Accountants
to have furnished to the Manager letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form
and substance satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of
any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement and the
Prospectus and provide customary “comfort” as to such review in form and substance satisfactory to the Manager.
(e) No
Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement, the
Prospectus and the Incorporated Documents, except as otherwise stated therein, there shall not have been (i) any change or
decrease in previously reported results specified in the letter or letters referred to in paragraph (d) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the
Incorporated Documents (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any
amendment thereof), the Incorporated Documents and the Prospectus (exclusive of any amendment or supplement thereto).
(f)
Payment of All Fees. The Company shall have paid the required Commission filing fees relating to the Shares within the time
period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b)
and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with
Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed
pursuant to Rule 424(b).
(g)
No FINRA Objections. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms
and arrangements under this Agreement.
(h)
Shares Listed on Trading Market. The Shares shall have been listed and admitted and authorized for trading on the Trading
Market, and satisfactory evidence of such actions shall have been provided to the Manager.
(i)
Other Assurances. Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to
the Manager such further information, certificates and documents as the Manager may reasonably request.
If any of the conditions specified
in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager,
this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of
Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone and confirmed
in writing by email.
The documents required to
be delivered by this Section 6 shall be delivered to the office of Greenberg Traurig, P.A., counsel for the Manager, at 132 Menachem Begin
Rd., Tel Aviv6701101, email: emmanuelg@gtlaw.com, on each such date as provided in this Agreement.
7.
Indemnification and Contribution.
(a)
Indemnification by Company. The Company agrees to indemnify and hold harmless the Manager, the directors, officers, employees
and agents of the Manager and each person who controls the Manager within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange
Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement for the registration of the Shares as originally filed or in any amendment thereof, or in the Base Prospectus,
any Prospectus Supplement, the Prospectus, any Issuer Free Writing Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading or result from or relate to any breach of any of the representations, warranties, covenants
or agreements made by the Company in this Agreement, and agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance
upon and in conformity with written information furnished to the Company by the Manager specifically for inclusion therein. This indemnity
agreement will be in addition to any liability that the Company may otherwise have.
(b)
Indemnification by Manager. The Manager agrees to indemnify and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to the Manager, but only with reference to written information
relating to the Manager furnished to the Company by the Manager specifically for inclusion in the documents referred to in the foregoing
indemnity; provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee
applicable to the Shares and paid hereunder. This indemnity agreement will be in addition to any liability which the Manager may otherwise
have.
(c) Indemnification
Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified
party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election
to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or proceeding.
(d) Contribution.
In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party for any reason, the Company and the Manager agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or
defending the same) (collectively “Losses”) to which the Company and the Manager may be subject in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Manager on the
other from the offering of the Shares; provided, however, that in no case shall the Manager be responsible for any
amount in excess of the Broker Fee applicable to the Shares and paid hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the Manager severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Manager
on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the Manager shall be deemed to be equal to the Broker Fee applicable to
the Shares and paid hereunder as determined by this Agreement. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or the Manager on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The
Company and the Manager agree that it would not be just and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls the Manager within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of the Manager shall have the same rights to contribution as the Manager, and each person who
controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each
case to the applicable terms and conditions of this paragraph (d).
8.
Termination.
(a)
The Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement
relating to the solicitation of offers to purchase the Shares in its sole discretion at any time upon ten (10) Business Days’ prior
written notice. Any such termination shall be without liability of any party to any other party except that (i) with respect to any
pending sale, through the Manager for the Company, the obligations of the Company, including in respect of compensation of the Manager,
shall remain in full force and effect notwithstanding the termination and (ii) the provisions of Sections 5, 6, 7, 8, 9, 10,
12, 14 and 15 of this Agreement shall remain in full force and effect notwithstanding such termination.
(b)
The Manager shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement
relating to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without
liability of any party to any other party except that the provisions of Sections 5, 6, 7, 8, 9, 10, 12, 14 and 15 of this Agreement
shall remain in full force and effect notwithstanding such termination.
(c)
This Agreement shall remain in full force and effect until such date that this Agreement is terminated pursuant to Sections 8(a)
or (b) above or otherwise by mutual agreement of the parties, provided that any such termination by mutual agreement shall in all
cases be deemed to provide that Sections 5, 6, 7, 8, 9, 10, 12, 14 and 15 of this Agreement shall remain in full force and effect.
(d)
Any termination of this Agreement shall be effective on the date specified in such notice of termination, provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Manager or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares, such sale of the Shares
shall settle in accordance with the provisions of Section 2(b) of this Agreement.
(e)
In the case of any purchase of Shares by the Manager pursuant to a Terms Agreement, the obligations of the Manager pursuant to
such Terms Agreement shall be subject to termination, in the absolute discretion of the Manager, by prompt oral notice given to the Company
prior to the Time of Delivery relating to such Shares, if any, and confirmed promptly by electronic mail, if since the time of execution
of the Terms Agreement and prior to such delivery and payment, (i) trading in the Common Stock shall have been suspended by the Commission
or the Trading Market or trading in securities generally on the Trading Market shall have been suspended or limited or minimum prices
shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of
the Manager, impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Prospectus (exclusive
of any amendment or supplement thereto).
9.
Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Manager set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by the Manager or the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 7, and will survive delivery of and payment for the Shares.
10.
Notices. All communications hereunder will be in writing and effective only on receipt, and will be mailed, delivered, or
e-mailed to the addresses of the Company and the Manager, respectively, set forth on the signature page hereto.
11. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 7, and no other person will have any right or
obligation hereunder.
12.
No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement
is an arm’s-length commercial transaction between the Company, on the one hand, and the Manager and any affiliate through which
it may be acting, on the other, (b) the Manager is acting solely as sales agent and/or principal in connection with the purchase
and sale of the Company’s securities and not as a fiduciary of the Company and (c) the Company’s engagement of the Manager
in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity.
Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective
of whether the Manager has advised or is currently advising the Company on related or other matters). The Company agrees that it will
not claim that the Manager has rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the
Company, in connection with such transaction or the process leading thereto.
13.
Integration. This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or
oral) between the Company and the Manager with respect to the subject matter hereof.
14.
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and the Manager. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default
or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such right.
15. Applicable
Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed within the State of New York. Each of the Company and the Manager: (i)
agrees that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in New
York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, (ii) waives
any objection which it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to
the exclusive jurisdiction of the New York Supreme Court, County of New York, and the United States District Court for the Southern
District of New York in any such suit, action or proceeding. Each of the Company and the Manager further agrees to accept and
acknowledge service of any and all process which may be served in any such suit, action or proceeding in the New York Supreme Court,
County of New York, or in the United States District Court for the Southern District of New York and agrees that service of process
upon the Company mailed by certified mail to the Company’s address shall be deemed in every respect effective service of
process upon the Company, in any such suit, action or proceeding, and service of process upon the Manager mailed by certified mail
to the Manager’s address shall be deemed in every respect effective service process upon the Manager, in any such suit, action
or proceeding. If either party shall commence an action or proceeding to enforce any provision of this Agreement, then the
prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonable attorney’s fees and
other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
16.
Waiver of Jury Trial. The Company hereby irrevocably waives, 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 this Agreement, any Terms Agreement or the transactions
contemplated hereby or thereby.
17.
Counterparts. This Agreement and any Terms Agreement may be signed in one or more counterparts, each of which shall constitute
an original and all of which together shall constitute one and the same agreement, which may be delivered in .pdf file via e-mail.
18.
Headings. The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect
the construction hereof.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company and the Manager.
Very truly yours,
BIOMX INC. |
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By: |
/s/ Jonathan Solomon |
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Name: |
Jonathan Solomon |
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Title: |
CEO |
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Address for Notice:
BiomX Inc.
22 Einstein St., Floor
4
Ness Ziona, Israel 7414003
Attention: Marina
Wolfson, Chief Financial Officer
E-mail: marinaw@biomx.com
With a copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
Attention: Howard E. Berkenblit, Esq.
E-mail: hberkenblit@sullivanlaw.com
The foregoing Agreement is hereby confirmed and accepted
as of the date first written above.
H.C. WAINWRIGHT & CO., LLC |
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By: |
/s/ Mark W. Viklund |
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Name: |
Mark W. Viklund |
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Title: |
Chief Executive Officer |
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Address for Notice:
430 Park Avenue
New York, New York 10022
Attention: Chief Executive Officer
E-mail: notices@hcwco.com
Form of Terms Agreement
ANNEX I
BIOMX INC.
TERMS AGREEMENT
Dear Sirs:
BiomX
Inc. (the “Company”) proposes, subject to the terms and conditions stated herein and in the At The Market Offering
Agreement, dated December 7, 2023 (the “At The Market Offering Agreement”), between the Company and H.C. Wainwright
& Co., LLC (“Manager”), to issue and sell to Manager the securities specified in the Schedule I hereto
(the “Purchased Shares”).
Each
of the provisions of the At The Market Offering Agreement not specifically related to the solicitation by the Manager, as agent of the
Company, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this
Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery, except that
each representation and warranty in Section 3 of the At The Market Offering Agreement which makes reference to the Prospectus (as
therein defined) shall be deemed to be a representation and warranty as of the date of the At The Market Offering Agreement in relation
to the Prospectus, and also a representation and warranty as of the date of this Terms Agreement and the Time of Delivery in relation
to the Prospectus as amended and supplemented to relate to the Purchased Shares.
An
amendment to the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus, as the
case may be, relating to the Purchased Shares, in the form heretofore delivered to the Manager is now proposed to be filed with the Securities
and Exchange Commission.
Subject
to the terms and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference, the
Company agrees to issue and sell to the Manager and the latter agrees to purchase from the Company the number of shares of the Purchased
Shares at the time and place and at the purchase price set forth in the Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement,
including those provisions of the At The Market Offering Agreement incorporated herein by reference, shall constitute a binding agreement
between the Manager and the Company.
BIOMX INC. |
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By: |
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Name: |
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Title: |
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ACCEPTED as of the date first written above.
H.C. WAINWRIGHT & CO., LLC |
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By: |
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Name: |
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Title: |
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38
Exhibit 5.1
December 7, 2023
BiomX Inc.
22 Einstein St. Floor 4
Ness Ziona 7414003, Israel
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is furnished to you in connection
with a Registration Statement on Form S-3 (the “Registration Statement”) being filed by BiomX Inc., a Delaware corporation
(the “Company”), with the Securities and Exchange Commission (the “Commission”) under the Securities
Act of 1933, as amended (the “Securities Act”), for the registration of the sale from time to time of up to $150,000,000
aggregate maximum offering price of: (i) shares of common stock of the Company, $0.0001 par value per share, (the “Shares”)
including up to $7,500,000 of Shares (the “ATM Shares”) pursuant to the At the Market Offering Agreement, dated December
7, 2023 (the “Sale Agreement”) by and between the Company and H.C. Wainwright & Co., LLC, (ii) shares of preferred
stock (the “Preferred Shares”), (iv) debt securities of the Company (the “Debt Securities”), (v)
warrants to purchase Shares (the “Warrants” and, with the Shares, the Preferred Shares, the Debt Securities and the
Warrants, the “Securities”) and (vi) units of two or more of the Securities (the “Units”), all of
which may be issued from time to time on a delayed or continuous basis pursuant to Rule 415 under the Securities Act.
We are acting as counsel for the Company in connection
with the Registration Statement. We have examined signed copies of the Registration Statement, the prospectus and the form of indenture
filed as an exhibit to the Registration Statement. We have also examined and relied upon minutes of meetings of the Board of Directors
of the Company as provided to us by the Company, the Certificate of Incorporation and By-Laws of the Company, each as restated and/or
amended to date (collectively the “Charter Documents”), and such other documents as we have deemed necessary for purposes
of rendering the opinions hereinafter set forth.
In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, the authenticity of the
originals of such latter documents and the legal competence of all signatories to such documents. Other than our examination of the documents
indicated above, we have made no other examination in connection with this opinion.
We express no opinion herein as to the laws of any jurisdiction other than the corporate laws of the State of Delaware, to the extent
indicated in this paragraph, and the federal laws of the United States of America, and we express no opinion as to state securities or
blue sky laws. In connection with our opinions herein relating to the General Corporation Law of the State of Delaware (the “Delaware
GCL”), we call to your attention that we are not members of the Bar of the State of Delaware, although we are generally familiar
with the laws of the State of Delaware pertaining to corporate matters, and, to the extent that conclusions based on the Delaware GCL
are involved in the opinions set forth herein, we have relied in part, in rendering such opinions, upon our examination of the Delaware
GCL as currently in effect.
BiomX Inc.
December 7, 2023
Page 2
Based upon
the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth hereinafter, we are of the opinion
that:
(1) With respect to the Shares, when (i)
specifically authorized for issuance by the Company’s Board of Directors or an authorized committee thereof (the
“Authorizing Resolutions”); (ii) the Registration Statement has become effective under the Securities Act;
(iii) if necessary, an appropriate prospectus supplement with respect to the Shares has been prepared, filed and delivered in
compliance with the Securities Act and the applicable rules promulgated thereunder; (iv) the terms of the sale of the Shares have
been duly established in conformity with the Charter Documents and do not violate any applicable law or result in a default under or
breach of any agreement or instrument binding on the Company and comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company; (v) the Shares have been issued and sold as contemplated by the Registration
Statement and any prospectus supplement, if applicable; and (vi) the Company has received the consideration provided for in the
Authorizing Resolutions and such consideration is not less than the par value of the Shares, the Shares will be validly issued,
fully paid and nonassessable.
(2) With respect to the Preferred Shares,
when (i) the Board shall have duly adopted resolutions approving a certificate of designation (the “Certificate of
Designation”) setting forth the terms of a series of Preferred Shares, including, as applicable, designations and powers,
preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof,
including without limitation the dividend rate, conversion or exchange rights, redemption price and liquidation preference; (ii) the
Certificate of Designation shall have been duly executed and filed with and accepted for record by the Department of State of the
State of Delaware; (iii) specifically authorized for issuance by the Authorizing Resolutions; (iv) the Registration Statement has
become effective under the Securities Act; (v) if necessary, an appropriate prospectus supplement with respect to the Preferred
Shares has been prepared, filed and delivered in compliance with the Securities Act and the applicable rules promulgated thereunder;
(vi) the terms of the sale of the Preferred Shares have been duly established in conformity with the Charter Documents and do not
violate any applicable law or result in a default under or breach of any agreement or instrument binding on the Company and comply
with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; (vii) the
Preferred Shares have been issued and sold as contemplated by the Registration Statement and any prospectus supplement, if
applicable, and (viii) the Company has received the consideration provided for in the Authorizing Resolutions and such consideration
is not less than the par value of the Preferred Shares, the Preferred Shares will be validly issued, fully paid and
nonassessable.
(3) With
respect to each series of the Debt Securities, when (i) the applicable indenture shall have been qualified under the Trust Indenture Act
of 1939, as amended (the “TIA”), and a Form T-1 shall have been filed with the Commission and become effective under
the TIA with respect to the trustee party thereto executing the applicable indenture or any related supplemental indenture; and (ii) the
indenture shall have been duly authorized, executed and delivered by the Company and a trustee, the Debt Securities will be valid and
binding obligations of the Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors’ rights and to general equity principles.
(4) With respect to the Warrants, when
(i) specifically authorized for issuance by the Authorizing Resolutions; (ii) the Registration Statement has become
effective under the Securities Act; (iii) the warrant agreement or agreements relating to the Warrants have been duly
authorized, executed and delivered; (iv) the terms of the Warrants and of their issuance and sale have been duly established in
conformity with the warrant agreement or agreements and do not violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon the Company and comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company; (v) the Warrants have been duly executed and countersigned in
accordance with the warrant agreement or agreements and issued and sold as contemplated by the Registration Statement; and
(vi) the Company has received the consideration (if any separate consideration is given for the Warrants) provided for in the
Authorizing Resolutions, the Warrants will constitute valid and legally binding obligations of the Company, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles.
(5) With respect to the Units, when (i) at
the time of execution, issuance and delivery of the Units and any agreement related thereto will have been duly authorized, executed
and delivered by the Company and the other parties to such agreement and will be the valid and legally binding obligation of the
parties thereto, enforceable against such parties in accordance with its terms; and (ii) all necessary conditions and actions with
respect to the Securities of which the Units are comprised shall have been duly met or taken, as provided for in (1) and (2) above,
as applicable, the Units will constitute valid and legally binding obligations of the Company, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’
rights and to general equity principles.
BiomX Inc.
December 7, 2023
Page 3
(6) The
ATM Shares have been duly authorized for issuance and, when issued and paid for in accordance with the terms and conditions of the Sale
Agreement, will be validly issued, fully paid and nonassessable.
The opinions set forth herein are rendered as of
the date hereof, and we assume no obligation to update such opinions to reflect any facts or circumstances which may hereafter come to
our attention or any changes in the law which may hereafter occur (which may have retroactive effect).
This opinion is rendered to you in connection with
the filing of the Registration Statement. This opinion may not be relied upon for any other purpose, or furnished to, quoted or relied
upon by any other person, firm or corporation for any purpose, without our prior written consent, except that (A) this opinion may be
furnished or quoted to judicial or regulatory authorities having jurisdiction over you, and (B) this opinion may be relied upon by purchasers
and holders of the Securities currently entitled to rely on it pursuant to applicable provisions of federal securities law.
We hereby consent to the filing of this opinion
with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K
under the Securities Act and to the reference to our firm in the prospectus forming a part of the Registration Statement. In giving such
consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations of the Commission.
|
Very truly yours, |
|
|
|
/s/ Sullivan & Worcester LLP |
|
Sullivan & Worcester LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the incorporation
by reference in this Registration Statement on Form S-3 of BiomX Inc. of our report dated March 29, 2023 except with respect to
the matters that raise substantial doubt about the Company’s ability to continue as a going concern discussed in Note 1c, as to
which the date is December 7, 2023 relating to the financial statements, which appears in
BiomX Inc.’s Current Report on Form 8-K dated December 7, 2023. We also consent to the reference
to us under the heading “Experts” in such Registration Statement.
Tel-Aviv, Israel |
/s/ Kesselman & Kesselman |
December 7, 2023 |
Certified Public Accountants (Isr.) |
|
A member firm of PricewaterhouseCoopers International Limited |
Exhibit 107
Calculation of Filing Fee Table
S-3
(Form Type)
BIOMX INC.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
|
|
Security
Type |
|
Security
Class
Title |
|
Fee
Calculation
or Carry
Forward
Rule |
|
Amount
Registered |
|
|
Proposed
Maximum
Offering
Price Per
Unit |
|
|
Maximum
Aggregate
Offering
Price |
|
|
Fee
Rate |
|
|
Amount
of
Registration
Fee |
|
|
Carry
Forward
Form Type |
|
|
Carry
Forward File
Number |
|
|
Carry
Forward
Initial
Effective Date |
|
|
Filing
Fee
Previously
Paid in
Connection
with Unsold
Securities
to be
Carried
Forward |
Newly
Registered Securities |
Fees
to Be Paid |
|
Equity |
|
Common
Shares, 0.00001 par value per share |
|
Rule
457(o) |
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
- |
|
|
Equity |
|
Preferred
Stock, 0.00001 par value per share |
|
Rule
457(o) |
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
- |
|
|
Other |
|
Debt
Securities |
|
Rule
457(o) |
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
|
|
|
- |
|
|
Other |
|
Warrants |
|
Rule
457(o) |
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
- |
|
|
Other |
|
Units |
|
Rule
457(o) |
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
- |
|
|
Unallocated
Shelf |
|
|
|
Rule
457(o) |
|
|
|
(1) |
|
|
|
(2) |
|
$ |
150,000,000 |
(3) |
|
$ |
0.0001476 |
|
|
$ |
22,140.00 |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
- |
Fees
Previously Paid |
|
- |
|
- |
|
- |
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
- |
Carry
Forward Securities |
Carry
Forward Securities |
|
- |
|
- |
|
- |
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
- |
|
|
Total
Offering Amounts |
|
|
|
|
|
|
$ |
150,000,000 |
|
|
$ |
0.0001476 |
|
|
$ |
22,140.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Fees Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Fee Offsets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
14,108.42 |
(4) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
Fee Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
8031.58 |
(4) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| (1) | There
is being registered hereunder an unspecified number of shares of (a) common shares, (b) preferred stock, (c) debt securities, (d) warrants
to purchase common shares, and (e) units, consisting of some or all of these securities in any combination, as may be sold from time
to time by the Registrant. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder.
There is also being registered hereunder an unspecified number of shares of common shares, as shall be issuable upon conversion, exchange
or exercise of any securities that provide for such issuance. In no event will the aggregate offering price of all types of securities
issued by the Registrant pursuant to this registration statement exceed $150,000,000. Pursuant to Rule 416(a) under the Securities Act
of 1933, as amended, or the Securities Act, this registration statement also covers any additional securities that may be offered or
issued in connection with any stock split, stock dividend or similar transaction. |
| (2) | The
proposed maximum aggregate offering price per class of security will be determined from time to time by the Registrant in connection
with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant
to Instruction 2.A.iii.b. to the Calculation of Filing Fee Tables and Related Disclosure on Item 16(b) of Form S-3 under the Securities
Act. |
| (3) | Estimated
solely to calculate the registration fee in accordance with Rule 457(o) under the Securities Act. The aggregate maximum offering price
of all securities issued pursuant to this registration statement will not exceed $150,000,000. |
| (4) | Pursuant
to Rule 457(p) under the Securities Act, the Registrant hereby offsets the total registration fee due under this registration statement
by $14,108.42 (calculated at the fee rate in effect at the date of the Registrant’s registration statement on Form S-3 filed by
the Registrant with the Securities and Exchange Commission on December 4, 2020 and declared effective on December
11, 2020 (Registration No. 333-251151), or the Prior Registration Statement, which represents the portion of the registration fee previously
paid with respect to $129,316,444.16 of unsold securities previously registered under the Prior Registration Statement. |
Table 2: Fee Offset Claims and Sources
| |
Registrant of Filer Name | |
Form or Filing Type | |
File Number | |
Initial Filing Date | | |
Filing Date | | |
Fee Offset Claim | | |
Security Type Associated with Fee Offset Claimed | |
Security Title Associated with Fee Offset Claimed | | |
Unsold Securities Associated with Fee Offset Claimed | |
Unsold Aggregate Offering Amount Associated with Fee Offset Claimed | | |
Fee Paid with Fee Offset Source | |
Rule 457(p) |
Fee Offset Claims | |
BIOMX Inc. | |
S-3 | |
333-251151 | |
| 12/4/2020 | | |
| __ | | |
$ | 14,108.44 | (1) | |
Unallocated (Universal) Shelf | |
| Common Shares, 0.00001 par value
per share, Preferred Stock, 0.00001 par value
per share, Debt Securities, Warrants, Units | | |
Unallocated (Universal) Shelf | |
$ | 129,316,444.16 | | |
| __ | |
Fee Offset Sources | |
BIOMX Inc. | |
S-3 | |
333-251151 | |
| __ | | |
| 12/11/2020 | | |
| __ | | |
__ | |
| __ | | |
__ | |
| __ | | |
$ | 8,031.58 | |
| (1) | Pursuant to Rule 457(p) under the Securities Act, the Registrant
hereby offsets the total registration fee due under this registration statement by $14,108.42 (calculated at the fee rate in effect at
the date of the Registrant’s Prior Registration Statement), which represents the portion of the registration fee previously paid
with respect to $129,316,444.16 of unsold securities previously registered under the Prior Registration Statement. |
BiomX (AMEX:PHGE)
과거 데이터 주식 차트
부터 4월(4) 2024 으로 5월(5) 2024
BiomX (AMEX:PHGE)
과거 데이터 주식 차트
부터 5월(5) 2023 으로 5월(5) 2024