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Name | Symbol | Market | Type |
---|---|---|---|
Redhill Biopharma Ltd | NASDAQ:RDHL | NASDAQ | Depository Receipt |
Price Change | % Change | Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|---|---|
-0.0043 | -1.16% | 0.3657 | 0.364 | 0.3699 | 0.3794 | 0.3614 | 0.3732 | 135,388 | 00:00:00 |
Israel
(State or other jurisdiction of
incorporation or organization)
|
Not Applicable
(I.R.S. Employer
Identification Number)
|
Rick A. Werner, Esq.
Jayun Koo, Esq.
Haynes and Boone, LLP
30 Rockefeller Plaza, 26th Floor
New York, New York 10112
Tel. (212) 659-7300
Fax (212) 884-8234
|
Perry Wildes, Adv.
Goldfarb Gross Seligman & Co.
One Azrieli Center
Tel Aviv 6702100, Israel
+972 (3) 607-4444
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● |
the going concern reference in our financial statements and our ability to obtain additional financing;
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our reduced revenues, business size and scope, market share and opportunities in certain markets following the sale of our rights to Movantik®;
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estimates of our expenses, future revenues, capital requirements and our needs for additional financing;
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our ability to obtain additional financing;
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the commercialization and market acceptance of our commercial products;
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our ability to generate sufficient revenues from our commercial products, including obtaining commercial insurance and government reimbursement;
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our ability to advance our therapeutic candidates into clinical trials or to successfully complete our preclinical studies or clinical trials, and to complete the development of such therapeutic candidates and obtain approval for
marketing by the Food and Drug Administration (“FDA”) or other regulatory authorities;
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our reliance on third parties to satisfactorily conduct key portions of our commercial operations, including manufacturing and other supply chain functions, market analysis services, safety monitoring, regulatory reporting and sales data
analysis and the risk that those third parties may not perform such functions satisfactorily;
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our ability to maintain an appropriate sales and marketing infrastructure;
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our ability to establish and maintain corporate collaborations;
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that our current commercial products or commercial products that we may commercialize or promote in the future may be withdrawn from the market by regulatory authorities and our need to comply with continuing laws, regulations and
guidelines to maintain clearances and approvals for those products;
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our exposure to significant drug product liability claims;
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the initiation and completion of any postmarketing studies or trials;
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our ability to acquire products approved for marketing in the U.S. that achieve commercial success and to maintain our own marketing and commercialization capabilities;
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our estimates of the markets, their size, characteristics and their potential for our commercial products and therapeutic candidates and our ability to serve those markets;
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the successful commercialization of products we in-license or acquire;
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our inability to enforce claims relating to a breach of a representation and warranty by a counterparty;
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the hiring and continued employment of executives, sales personnel, and contractors;
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our receipt and timing of regulatory clarity and approvals for our commercial products and therapeutic candidates, and the timing of other regulatory filings and approvals;
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the initiation, timing, progress, and results of our research, development, manufacturing, preclinical studies, clinical trials, and other commercial efforts and therapeutic candidate development, as well as the extent and number of
additional studies that we may be required to conduct;
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● |
our ability to advance our therapeutic candidates into clinical trials or to successfully complete our preclinical studies or clinical trials, including developing a commercial companion diagnostic for the detection of Mycobacterium
avium paratuberculosis;
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● |
our reliance on third parties to conduct key portions of our clinical trials, including data management services and the risk that those third parties may not perform such functions satisfactorily;
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● |
our reliance on third parties to manufacture and supply our therapeutic candidates and their respective active pharmaceutical ingredients with the requisite quality and manufacturing standards in sufficient quantities and within the
required timeframes and at an acceptable cost;
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the research, manufacturing, clinical development, commercialization, and market acceptance of our therapeutic candidates;
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the interpretation of the properties and characteristics of our commercial products or therapeutic candidates and of the results obtained in research, preclinical studies or clinical trials;
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the implementation of our business model, strategic plans for our business, commercial products, and therapeutic candidates;
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the impact of other companies and technologies that compete with us within our industry;
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the scope of protection we are able to establish and maintain for intellectual property rights covering our commercial products and therapeutic candidates, including from existing or future claims of infringement, and our ability to
operate our business without infringing or violating the intellectual property rights of others;
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● |
parties from whom we license or acquire our intellectual property defaulting in their obligations toward us;
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● |
the failure by a licensor or a partner of ours to meet their respective obligations under our acquisition, in-license or other development or commercialization agreements or renegotiate the obligations under such agreements, or if other
events occur that are not within our control, such as bankruptcy of a licensor or a partner;
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our reliance on the actions of third parties, including sublicensors and their other sublicensees, to maintain our rights under our in-licenses which are sublicenses;
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the effect of a potential occurrence of patients suffering serious adverse events using investigative drugs under our Expanded Access Program;
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our ability to implement network systems and controls that are effective at preventing cyber-attacks, malware intrusions, malicious viruses and ransomware threats;
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our ability to resolve the disputes regarding the alleged events of default under our term loan facility, if not resolved, could harm our financial condition which could materially adversely affect our financial performance;
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our ability to regain or maintain compliance with the Nasdaq’s listing standards;
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the effects of the political, economic and business environment, including unforeseeable events and the changing market conditions caused by the COVID-19 endemic and the current conditions affecting Israel; and
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the impact on our business of the political and security situation in Israel, the U.S. and other places in which we operate.
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Securities offered by the selling shareholders |
Up to 8,861,961 ADSs representing 3,544,784,400 Ordinary Shares.
|
The ADSs |
Each ADS represents 400 of our Ordinary Shares. The ADSs will be delivered by The Bank of New York Mellon, as depositary (the “Depositary”).
The Depositary, as depositary, or its nominee, will be the holder of the Ordinary Shares underlying the ADSs and you will have rights as provided in the Deposit Agreement, dated as of December 26, 2012,
among us, the Depositary and all owners and holders from time to time of ADSs issued thereunder (the “Deposit Agreement”), a form of which has been filed as Exhibit 1 to the Registration Statement on Form F-6 filed by the Depositary
with the SEC on December 6, 2012.
Subject to the terms of the Deposit Agreement and in compliance with the relevant requirements set out in the prospectus, you may turn in the ADSs to the Depositary for cancellation and withdrawal of the
Ordinary Shares underlying the ADSs. The Depositary will charge you fees for such cancellations pursuant to the Deposit Agreement.
You should carefully read the Deposit Agreement to better understand the terms of the ADSs.
|
Selling shareholders |
All of the Offered ADSs are being offered by the selling shareholders named herein. See “Selling Shareholders” on page 9 of this prospectus for more information on the selling shareholders.
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Use of proceeds |
We will not receive any proceeds from the sale by the selling shareholders of the Offered ADSs issued or issuable upon exercise of the Warrants. However, we may receive the proceeds from any exercise of the Warrants if the holders
exercise the Warrants for cash. We intend to use the proceeds from the exercise of the Warrants for cash, if any, for working capital, research and development and general corporate purposes. See the section of this prospectus titled
“Use of Proceeds.”
|
Plan of Distribution |
The selling shareholders, and any of their pledgees, and successors-in-interest, may offer or sell the Offered ADSs from time to time through public or private transactions at prevailing market prices, at prices related to prevailing
market prices or at privately negotiated prices. The selling shareholders may also resell the Offered ADSs to or through underwriters, broker- dealers or agents, who may receive compensation in the form of discounts, concessions or
commissions. See “Plan of Distribution” beginning on page 13 of this prospectus for additional information on the methods of sale that may be used by the selling shareholders.
|
Risk factors |
See “Risk Factors” beginning on page 5 and the other information included elsewhere in this prospectus for a discussion of factors you should carefully consider before deciding to invest in the ADSs.
|
NASDAQ trading symbol for ADSs |
The ADSs are listed on Nasdaq under the symbol “RDHL.”
|
• |
Our financial statements include a going concern reference. We will need to raise significant additional capital to finance our losses and negative cash flows from operations, and if we were to fail to raise sufficient capital or on
favorable terms, we may need to cease operations. Management has substantial doubt about our ability to continue as a going concern.
|
• |
Following our sale of our rights to Movantik®, our revenue, business’ size and scope, market share and opportunities in certain markets, or our ability to compete in certain markets and therapeutic categories is reduced.
|
• |
Our failure to maintain compliance with Nasdaq’s continued listing requirements could result in the desilting of the ADSs.
|
• |
Certain obligations under the Credit Agreement dated February 23, 2020 and as amended on June 17, 2022 and the Asset Purchase Agreement dated February 2, 2023 that were entered into with HCR Collateral Management, LLC (“HCRM”) and certain
of its affiliates in connection with the sale of Movantik® in exchange for extinguishment of all debt obligations under the Credit Agreement are secured by a lien on Talicia® and Aemcolo®-related assets. As a result of this security interest,
until extinguishment of such security interest, if we were to become insolvent the Talicia® and Aemcolo® assets would only be available to satisfy claims of our general creditors or to holders of our equity securities to the extent the value
of such assets exceeded the amount of our indebtedness and other obligations. In addition, if we lose these assets to a foreclosure, we will lose our remaining source of revenue following the sale of Movantik®. The existence of these security
interests may also adversely affect our financial flexibility.
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• |
Our pursuit of treatments for SARS-CoV-2 (the virus that causes COVID-19) infection in patients entails a high level of uncertainty. We cannot assure you that either opaganib (ABC294640; Yeliva®) (“opaganib”), or will be approved for
marketing or Emergency Use Authorization or be granted with Expanded Access clearance by the FDA or other regulatory authorities. In addition, we cannot assure that we will be able to complete the development of opaganib or RHB-107.
|
• |
If we are successful in developing a COVID-19 therapeutic, we may need to devote significant resources to our manufacturing scale-up and large-scale deployment, including for use by the U.S. or other governments. If one of our COVID-19
therapeutic candidates is approved for marketing or for Emergency Use, we may also need to devote significant resources to further expand our U.S. and non-U.S. sales and marketing activities and increase or maintain personnel to accommodate
sales in the U.S. and outside the U.S.
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• |
If we or our future development or commercialization partners are unable to obtain or maintain the FDA or other foreign regulatory clearance and approval for our commercial products or therapeutic candidates, we or our commercialization
partners will be unable to commercialize our current commercial products, products we may commercialize or promote in the future or our therapeutic candidates, upon approval, if any.
|
• |
on an actual basis; and
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• |
on a pro forma basis, after giving effect to (i) the sale of 1,084,923 ADSs and pre-funded warrants (the “July 2023 Pre-funded Warrants”) to purchase up to 217,000 ADSs in the registered direct offering consummated in July 2023 (the
“July 2023 Offering”), giving effect to the subsequent exercise in full of the July 2023 Pre-funded Warrants for aggregate cash consideration of $217 and the receipt of the net proceeds of approximately $1.4 million from the July 2023
Offering, after deducting placement agent fees and expenses payable by us, (ii) the Warrant Amendment Agreements, dated July 21, 2023, between us and the investors signatory thereto, entered into in connection with the July 2023 Offering
(the “July 2023 Warrant Amendment”), reducing the exercise price of the May 2022 Warrants, the December 2022 Warrants and the Class B Warrants to $1.80 per ADS, (iii) the exercise of the Class A warrants issued in March 2023 to purchase
an aggregate of 1,500,000 ADSs at a reduced exercise price of $1.35 per ADS in July 2023 and issuance of the July 2023 Warrants (the “July 2023 Warrant Exercise Transaction”), after deducting placement agent fees and expenses payable by
us, (iv) the issuance of warrants to purchase up to 78,115 ADSs issued to Wainwright as part of the compensation to Wainwright in connection with the July 2023 Offering (the “July 2023 Placement Agent Warrants”), (v) the issuance of
warrants to purchase up to 90,000 ADSs issued to Wainwright as part of the compensation to Wainwright in connection with the July 2023 Warrant Exercise Transaction (the “July 2023 Placement Agent Exercise Warrants”), and (vi) the
September 2023 Warrant Exercise Transaction and the issuance of the September 2023 Reload Warrants and the Placement Agent Warrants, after deducting placement agent fees and expenses payable by us.
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(In thousands, except share data)
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Actual
|
Pro Forma
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||||||
Total debt(1)
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$
|
31,566
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$
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36,027
|
||||
Ordinary shares, par value NIS 0.01 per share
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4,620
|
12,139
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||||||
Additional paid-in capital
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380,860
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375,398
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||||||
Accumulated deficit
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382,009
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383,445
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||||||
Total shareholders’ equity
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$
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3,471
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$
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4,092
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||||
Total capitalization and indebtedness
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$
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35,037
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$
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40,119
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(1) |
Includes $28.2 million reported as current liabilities, which mainly consist of allowance for deductions from revenue and accrued expenses and account payable, and $3.4 million reported as non-current liabilities, which mainly consist of
lease liabilities and derivative financial instruments. The warrants granted in the registered direct offering and concurrent private placement of warrants consummated in May 2022, the underwritten offering consummated in December 2022, the
registered direct offering consummated in March 2023, the July 2023 Offering, the July 2023 Warrant Exercise Transaction, and the September 2023 Warrant Exercise Transaction were classified as a financial liability due to a net settlement
provision. Therefore, some of the proceeds of the issuances were classified as derivative financial instruments and increased the total debt accordingly.
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Ordinary Shares Beneficially Owned
Before Offering |
Ordinary Shares Beneficially Owned
After Offering
|
||||||||||||||
Selling Shareholders
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Number(1)
|
Percentage
|
Maximum Number of Ordinary Shares
Offered(1)
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Number
|
Percentage
|
||||||||||
Armistice Capital, LLC(2)
|
3,638,484,800(3)
|
51.29%**
|
|
2,664,084,800(4)
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974,400,000(5)
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13.73%**
|
|
||||||||
Sabby Volatility Master Fund, Ltd.(6)
|
545,514,800(7)
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12.75%**
|
|
518,302,400(8)
|
27,212,400(9)
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*
|
|||||||||
Lind Global Fund II LP(10)
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259,151,200(11)
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6.45%**
|
|
259,151,200(11)
|
0
|
*
|
|||||||||
Michael Vasinkevich(12)
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132,413,200(13)
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3.40%
|
|
66,206,400(14)
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66,206,800(15)
|
1.70%
|
|||||||||
Noam Rubinstein(12)
|
45,428,000(16)
|
1.19%
|
|
22,714,000(17)
|
22,714,000(18)
|
*
|
|||||||||
Aileen Gibbons(12)
|
19,616,800(19)
|
*
|
9,808,400(20)
|
9,808,400(21)
|
*
|
||||||||||
Craig Schwabe(12)
|
6,969,600(22)
|
*
|
3,484,800(23)
|
3,484,800(24)
|
*
|
||||||||||
Charles Worthman(12)
|
2,064,800(25)
|
*
|
1,032,400(26)
|
1,032,400(27)
|
*
|
(1) |
Number of Ordinary Shares includes Ordinary Shares represented by ADSs. Each ADS represents four hundred (400) Ordinary Shares.
|
(2) |
The securities are directly held by Armistice Capital Master Fund Ltd., a Cayman Islands exempted company (the “Master Fund”), and may be deemed to be beneficially owned by: (i) Armistice Capital, LLC
(“Armistice Capital”), as the investment manager of the Master Fund; and (ii) Steven Boyd, as the Managing Member of Armistice Capital. The September 2023 Reload Warrants are subject to a beneficial ownership limitation of 4.99%, which
such limitation restricts the selling shareholder from exercising that portion of the September 2023 Reload Warrants that would result in the selling shareholder and its affiliates owning, after exercise, a number of Ordinary Shares in
excess of the beneficial ownership limitation. The address of Armistice Capital Master Fund Ltd. is c/o Armistice Capital, LLC, 510 Madison Avenue, 7th Floor, New York, NY 10022.
|
(3) |
Represents 3,638,484,800 Ordinary Shares represented by 9,096,212 ADSs consisting of (i) 6,660,212 ADSs issuable upon exercise of the September 2023 Reload Warrants, without regard to any limitations on the
exercise of the September 2023 Reload Warrants, (ii) 1,673,000 ADSs held in abeyance pursuant to the exercise of the May 2022 Warrants, the Class B Warrants and the July 2023 Warrants in the September 2023 Warrant Exercise Transaction,
and (iii) 763,000 ADSs issued pursuant to the exercise of the May 2022 Warrants, the Class B Warrants and the July 2023 Warrants in the September 2023 Warrant Exercise Transaction. The exercise of the September 2023 Reload Warrants is
subject to the Blocker. Consequently, as of the date set forth above, Armistice may not necessarily be able to exercise all of these warrants due to the Blocker. The number of Ordinary Shares set forth in the above table does not
reflect the application of this limitation.
|
(4) |
Represents 2,664,084,800 Ordinary Shares represented by 6,660,212 ADSs issuable upon exercise of the September 2023 Reload Warrants, without regard to any limitations on the exercise of such warrants. The
exercise of the foregoing warrants is subject to the Blocker.
|
(5) |
Represents 974,400,000 Ordinary Shares represented by 2,436,000 ADSs consisting of (i) 1,673,000 ADSs held in abeyance pursuant exercise of the May 2022 Warrants, the Class B Warrants and the July 2023
Warrants in the September 2023 Warrant Exercise Transaction, and (ii) 763,000 ADSs issued pursuant to the exercise of the May 2022 Warrants, the Class B Warrants and the July 2023 Warrants in the September 2023 Warrant Exercise
Transaction.
|
(6) |
The securities are directly held by Sabby Volatility Warrant Master Fund, Ltd. (“Sabby”). Sabby Management, LLC, the investment manager of Sabby, has discretionary authority to vote and dispose of the
shares held by Sabby and may be deemed to be the beneficial owner of these shares. Hal Mintz, in his capacity as manager of Sabby Management, LLC, may also be deemed to have investment discretion and voting power over the shares
held by Sabby. Each of Sabby Management, LLC and Hal Mintz disclaims beneficial ownership over the securities listed except to the extent of their pecuniary interest therein. The September 2023 Reload Warrants are subject to a
beneficial ownership limitation of 4.99%, which such limitation restricts the selling shareholder from exercising that portion of the September 2023 Reload Warrants that would result in the selling shareholder and its affiliates
owning, after exercise, a number of Ordinary Shares in excess of the beneficial ownership limitation.
|
(7) |
Represents 545,514,800 Ordinary Shares represented by 1,363,787 ADSs consisting of (i) 1,295,756 ADSs issuable upon exercise of the September 2023 Reload Warrants, without regard to any limitations
on the exercise of the September 2023 Reload Warrants, and (ii) 68,031 ADSs beneficially owned by Sabby. The exercise of the September 2023 Reload Warrants is subject to the Blocker. Consequently, as of the date set forth above,
Sabby may not necessarily be able to exercise all of these warrants due to the Blocker. The number of Ordinary Shares set forth in the above table does not reflect the application of this limitation.
|
(8) |
Represents 518,302,400 Ordinary Shares represented by 1,295,756 ADSs issuable upon exercise of the September 2023 Reload Warrants, without regard to any limitations on the exercise of such
warrants. The exercise of the September 2023 Reload Warrants is subject to the Blocker.
|
(9) |
Represents 27,212,400 Ordinary Shares represented by 68,031 ADSs beneficially owned by Sabby.
|
(10) |
The securities are directly held by Lind Global Fund II LP (“Lind”). Jeff Easton is the Managing Member of Lind Global Partners, LLC, which is the General Partner and the Investment Manager of
Lind Global Fund II LP, and in such capacity has the right to vote and dispose of the securities held by Lind. Mr. Easton disclaims beneficial ownership over the securities listed except to the extent of his pecuniary
interest therein. The address for Lind Global Fund II LP is 444 Madison Avenue, 41st Floor, New York, NY 10022. The September 2023 Reload Warrants are subject to a beneficial ownership limitation of 4.99%, which such
limitation restricts the selling shareholder from exercising that portion of the September 2023 Reload Warrants that would result in the selling shareholder and its affiliates owning, after exercise, a number of Ordinary
Shares in excess of the beneficial ownership limitation.
|
(11) |
Represents 259,151,200 Ordinary Shares represented by 647,878 ADSs issuable upon exercise of the September 2023 Reload Warrants, without regard to any limitations on the exercise of the
September 2023 Reload Warrants. Consequently, as of the date set forth above, Lind may not necessarily be able to exercise all of the September 2023 Reload Warrants due to the Blocker. The number of Ordinary Shares set
forth in the above table does not reflect the application of this limitation.
|
(12) |
The selling shareholders were issued compensation warrants as a designee of Wainwright in connection with each of (i) the registered direct offering consummated in March 2023 (the “March
2023 Placement Agent Warrants”), (ii) the July 2023 Offering, (iii) July 2023 Warrant Exercise Transaction, and (iv) the September 2023 Warrant Exercise Transaction. Each selling stockholder is affiliated with
Wainwright, a registered broker dealer with a registered address of H.C. Wainwright & Co., LLC, 430 Park Avenue, 3rd Floor, New York, New York 10022, and has sole voting and dispositive power over the securities
held. Each selling stockholder may not exercise the March 2023 Placement Agent Warrants, the July 2023 Placement Agent Warrants, the July 2023 Placement Agent Exercise Warrants or the Placement Agent Warrants to the
extent such exercise would cause each selling shareholders, together with his affiliates and attribution parties, to beneficially own a number of Ordinary Shares which would exceed 4.99% of our then outstanding
Ordinary Shares following such exercise, or, upon notice to us, 9.99% of our then outstanding Ordinary Shares following such exercise, excluding for purposes of such determination shares of Ordinary Shares issuable
upon exercise of such securities which have not been so exercised. The selling stockholder acquired the warrants in the ordinary course of business and, at the time the warrants were acquired, the selling stockholder
had no agreement or understanding, directly or indirectly, with any person to distribute such securities.
|
(13) |
Represents 132,413,200 Ordinary Shares represented 331,033 ADSs issuable upon exercise of the March 2023 Placement Agent Warrants, the July 2023 Placement Agent Warrants, the July 2023
Placement Agent Exercise Warrants and the Placement Agent Warrants, without regard to any limitations on the exercise of such warrants.
|
(14) |
Represents 66,206,400 Ordinary Shares represented by 165,516 ADSs issuable upon exercise of the Placement Agent Warrants, without regard to any limitations on the exercise of such warrants.
|
(15) |
Represents 66,206,800 Ordinary Shares represented by 165,517 ADSs issuable upon exercise of the March 2023 Placement Agent Warrants, the July 2023 Placement Agent Warrants and the July 2023 Placement
Agent Exercise Warrants without regard to any limitations on the exercise of such warrants.
|
(16) |
Represents 45,428,000 Ordinary Shares represented by 113,570 ADSs issuable upon exercise of the March 2023 Placement Agent Warrants, the July 2023 Placement Agent Warrants, the July 2023 Placement Agent
Exercise Warrants and the Placement Agent Warrants, without regard to any limitations on the exercise of such warrants.
|
(17) |
Represents 22,714,000 Ordinary Shares represented by 56,785 ADSs issuable upon exercise of the Placement Agent Warrants, without regard to any limitations on the exercise of such warrants.
|
(18) |
Represents 22,714,000 Ordinary Shares represented by 56,785 ADSs issuable upon exercise of the March 2023 Placement Agent Warrants, the July 2023 Placement Agent Warrants and the July 2023 Placement
Agent Exercise Warrants, without regard to any limitations on the exercise of such warrants.
|
(19) |
Represents 19,616,800 Ordinary Shares represented by 49,042 ADSs issuable upon exercise of the March 2023 Placement Agent Warrants, the July 2023 Placement Agent Warrants, the July 2023 Placement
Agent Exercise Warrants and the Placement Agent Warrants, without regard to any limitations on the exercise of such warrants.
|
(20) |
Represents 9,808,400 Ordinary Shares represented by 24,521 ADSs issuable upon exercise of the Placement Agent Warrants, without regard to any limitations on the exercise of such warrants.
|
(21) |
Represents 9,808,400 Ordinary Shares represented by 24,521 ADSs issuable upon exercise of the March 2023 Placement Agent Warrants, the July 2023 Placement Agent Warrants and the July 2023
Placement Agent Exercise Warrants without regard to any limitations on the exercise of such warrants.
|
(22) |
Represents 6,969,600 Ordinary Shares represented 17,424 ADSs issuable upon exercise of the March 2023 Placement Agent Warrants, the July 2023 Placement Agent Warrants, the July 2023
Placement Agent Exercise Warrants and the Placement Agent Warrants, without regard to any limitations on the exercise of such warrants.
|
(23) |
Represents 3,484,800 Ordinary Shares represented 8,712 ADSs issuable upon exercise of the Placement Agent Warrants, without regard to any limitations on the exercise of such warrants.
|
(24) |
Represents 3,484,800 Ordinary Shares represented by 8,712 ADSs issuable upon exercise of the March 2023 Placement Agent Warrants, the July 2023 Placement Agent Warrants and the July 2023
Placement Agent Exercise Warrants without regard to any limitations on the exercise of such warrants.
|
(25) |
Represents 2,064,800 Ordinary Shares represented 5,162 ADSs issuable upon exercise of the March 2023 Placement Agent Warrants, the July 2023 Placement Agent Warrants, the July 2023
Placement Agent Exercise Warrants and the Placement Agent Warrants, without regard to any limitations on the exercise of such warrants.
|
(26) |
Represents 1,032,400 Ordinary Shares represented by 2,581 ADSs issuable upon exercise of the Placement Agent Warrants, without regard to any limitations on the exercise of such
warrants.
|
(27) |
Represents 1,032,400 Ordinary Shares represented by 2,581 ADSs issuable upon exercise of the March 2023 Placement Agent Warrants, the July 2023 Placement Agent Warrants and the
July 2023 Placement Agent Exercise Warrants without regard to any limitations on the exercise of such warrants.
|
● |
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
|
● |
block trades in which the broker-dealer will attempt to sell the securities as an agent but may position and resell a portion of the block as principal to facilitate the transaction;
|
● |
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
|
● |
an exchange distribution in accordance with the rules of the applicable exchange;
|
● |
privately negotiated transactions;
|
● |
settlement of short sales made after the effective date of the registration statement;
|
● |
in transactions through broker-dealers that agree with the selling shareholders to sell a specified number of such securities at a stipulated price per security;
|
● |
through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
|
● |
a combination of any such methods of sale; or
|
● |
any other method permitted pursuant to applicable law.
|
SEC registration fee
|
$
|
500
|
||
Legal fees and expenses
|
10,000
|
|||
Accountants’ fees and expenses
|
5,000
|
|||
Miscellaneous
|
5,000
|
|||
Total
|
$
|
20,500
|
||
Each of the amounts set forth above, other than the registration fee, is an estimate.
|
● |
our Annual Report on Form 20-F for the
year ended December 31, 2022, filed with the SEC on April 28, 2023;
|
● |
the description of our Ordinary Shares contained in our Registration Statement on Form 20-F filed
with the SEC on December 26, 2012; and
|
● |
our Reports on Form 6-K, furnished with the SEC on January 3, 2023, January 24, 2023, January 25, 2023, January 26, 2023, February 6, 2023, February 15, 2023, February 16, 2023, February 28, 2023, March 6, 2023, March
9, 2023, March 13, 2023, April 28, 2023 (solely with respect to “Financial results for the quarter ended December 31, 2022”, “Financial
results for the year ended December 31, 2022” and “Liquidity and Capital Resources”), May 1, 2023, May 4, 2023, May
9, 2023, May 16, 2023 and May 22, 2023, June
12, 2023, June 29, 2023, July 6, 2023, July
21, 2023 (two reports), July 25, 2023 (two
reports), July 31, 2023, August 1, 2023, August
8, 2023, August 9, 2023, August 17, 2023, September
5, 2023, September 18, 2023, September 22, 2023, September
29, 2023, October 3, 2023, October 10, 2023 and October 16,
2023.
|
• |
the judgments are obtained after due process before a court of competent jurisdiction, according to the laws of the state in which the judgment is given and the rules of private international law currently prevailing in Israel;
|
• |
the prevailing law of the foreign state in which the judgments were rendered allows the enforcement of judgments of Israeli courts (however, the Israeli courts may waive this requirement following a request by the attorney general);
|
• |
adequate service of process has been effected and the defendant has had a reasonable opportunity to be heard and to present his or her evidence;
|
• |
the judgments are not contrary to public policy, and the enforcement of the civil liabilities set forth in the judgment does not impair the security or sovereignty of the State of Israel;
|
• |
the judgments were not obtained by fraud and do not conflict with any other valid judgment in the same matter between the same parties;
|
• |
an action between the same parties in the same matter is not pending in any Israeli court at the time the lawsuit is instituted in the foreign court; and
|
• |
the obligations under the judgment are enforceable according to the laws of the State of Israel and according to the law of the foreign state in which the relief was granted.
|
• |
We have irrevocably appointed RedHill Biopharma Inc. as our agent to receive service of process in any action against us in any United States federal or state court arising out of this offering or any purchase or sale of securities in
connection with this offering.
|
• |
If a foreign judgment is enforced by an Israeli court, it generally will be payable in Israeli currency, which can then be converted into non-Israeli currency and transferred out of Israel. The usual practice in an action before an Israeli
court to recover an amount in a non-Israeli currency is for the Israeli court to issue a judgment for the equivalent amount in Israeli currency at the rate of exchange in force on the date of the judgment, but the judgment debtor may make
payment in foreign currency. Pending collection, the amount of the judgment of an Israeli court stated in Israeli currency ordinarily will be linked to the Israeli consumer price index plus interest at the annual statutory rate set by Israeli
regulations prevailing at the time. Judgment creditors must bear the risk of unfavorable exchange rates.
|
• |
a breach of such officer’s or director’s duty of care to us or to another person;
|
• |
a breach of such officer’s or director’s duty of loyalty to us, provided that such officer or director acted in good faith and had reasonable cause to assume that his act would not prejudice our interests;
|
• |
a financial liability imposed upon such officer or director in favor of another person;
|
• |
financial liability imposed on the officer or director for payment to persons or entities harmed as a result of violations in administrative proceedings as described in Section 52(54)(a)(1)(a) of the Israeli Securities Law (“Party Harmed
by the Breach”);
|
• |
expenses incurred by such officer or director in connection with an administrative proceeding conducted in this matter, including reasonable litigation expenses, including legal fees; or
|
• |
a breach of any duty or any other obligation, to the extent insurance may be permitted by law.
|
• |
a provision authorizing the company to indemnify an officer or director for future events with respect to a monetary liability imposed on him in favor of another person pursuant to a judgment (including a judgment given in a settlement or
an arbitrator’s award approved by the court), so long as such indemnification is limited to types of events which, in the board of directors’ opinion, are foreseeable at the time of granting the indemnity undertaking given the company’s
actual business, and in such amount or standard as the board of directors deems reasonable under the circumstances. Such undertaking must specify the events that, in the board of directors’ opinion, are foreseeable in view of the company’s
actual business at the time of the undertaking and the amount or the standards that the board of directors deemed reasonable at the time;
|
• |
a provision authorizing the company to indemnify an officer or director for future events with respect to reasonable litigation expenses, including counsel fees, incurred by an officer or director in which he is ordered to pay by a court,
in proceedings that the company institutes against him or instituted on behalf of the company or by another person, or in a criminal charge of which he was acquitted, or a criminal charge in which he was convicted of a criminal offense that
does not require proof of criminal intent;
|
• |
a provision authorizing the company to indemnify an officer or director for future events with respect to reasonable litigation fees, including attorney’s fees, incurred by an officer or director due to an investigation or proceeding filed
against him by an authority that is authorized to conduct such investigation or proceeding, and that resulted without filing an indictment against him and without imposing on him financial obligation in lieu of a criminal proceeding, or that
resulted without filing an indictment against him but with imposing on him a financial obligation as an alternative to a criminal proceeding in respect of an offense that does not require the proof of criminal intent or in connection with a
monetary sanction;
|
• |
a provision authorizing the company to indemnify an officer or director for future events with respect to a Party Harmed by the Breach;
|
• |
a provision authorizing the company to indemnify an officer or director for future events with respect to expenses incurred by such officer or director in connection with an administrative proceeding, including reasonable litigation
expenses, including legal fees; and
|
• |
a provision authorizing the company to indemnify an officer or director retroactively.
|
• |
a breach by the officer or director of his duty of loyalty, except for insurance and indemnification where the officer or director acted in good faith and had a reasonable basis to believe that the act would not prejudice the company;
|
• |
a breach by the officer or director of his duty of care if the breach was done intentionally or recklessly, except if the breach was solely as a result of negligence;
|
• |
any act or omission done with the intent to derive an illegal personal benefit; or
|
• |
any fine, civil fine, monetary sanctions, or forfeit imposed on the officer or director.
|
Exhibit Number
|
Description of Document
|
(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 a 20% 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;
|
(2) |
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
(3) |
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
|
(4) |
to file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A of Form 20-F at the start of any delayed offering or throughout a
continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in the
prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of
those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the
Act or Item 8.A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the Form F-3.
|
(5) |
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
|
(i) |
If the registrant is relying on Rule 430B (§230.430B of this chapter):
|
(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.
|
|
REDHILL BIOPHARMA, LTD.
By: /s/ Dror Ben-Asher
Name: Dror Ben-Asher
Title: Chief Executive Officer and Director
|
Signature
|
Title
|
Date
|
||
/s/ Dror Ben-Asher
|
Chief Executive Officer and Chairman of the Board of Directors
|
October 23, 2023
|
||
Dror Ben-Asher
|
(Principal Executive Officer)
|
|||
/s/ Razi Ingber
|
Chief Financial Officer
|
October 23, 2023
|
||
Razi Ingber
|
(Principal Financial Officer and Principal Accounting Officer)
|
|||
*
|
Director
|
October 23, 2023
|
||
Ofer Tsimchi
|
||||
*
|
Director
|
October 23, 2023
|
||
Shmuel Cabilly
|
|
|
||
*
|
Director
|
October 23, 2023
|
||
Dr. Kenneth Reed
|
||||
*
|
Director
|
October 23, 2023
|
||
Eric Swenden
|
|
|
||
*
|
Director
|
October 23, 2023
|
||
Alla Felder
|
|
|
||
*
|
Director and Chief Commercial Officer
|
October 23, 2023
|
||
Rick Scruggs
|
* By:
|
/s/ Dror Ben-Asher
|
|
Dror Ben-Asher
|
||
Attorney-in-Fact
|
|
REDHILL BIOPHARMA INC.
Authorized U.S. Representative
By: /s/ Rick Scruggs
Name: Rick Scruggs
Title: President & Chief Commercial Officer
|
1 Year Redhill Biopharma Chart |
1 Month Redhill Biopharma Chart |
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