SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 20-F
☐ REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
þ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2016
OR
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
☐ SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of event requiring this shell company report _______________
For the transition period from _______________________________ to _______________________________
Commission File No. 001-36345
GALMED PHARMACEUTICALS LTD.
(Exact name of Registrant as specified in its charter)
N/A
(Translation of the Registrant’s name into English)
State of Israel
(Jurisdiction of incorporation or organization)
16 Tiomkin Street, Tel Aviv, Israel 6578317
(Address of principal executive offices)
Allen Baharaff
President and Chief Executive Officer
16 Tiomkin Street
Tel Aviv, Israel 6578317
E-mail: ab@galmedpharma.com
Tel: +972.3.693.8448
Fax: +972.3.693.8447
(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act.
Title of each class
Ordinary shares, par value NIS 0.01
per share
Name of each exchange on which registered
Nasdaq Capital Market
Securities registered or to be registered pursuant to Section 12(g) of the Act.
Title of each class
N/A
Securities registered or to be registered pursuant to Section 15(d) of the Act.
Title of each class
N/A
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the
annual report. 12,149,226
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934. Yes ☐ No ☒
Note – Checking the box above will not relieve any registrant required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 from their obligations under those Sections.
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such a shorter period that the registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data
File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for
such shorter period that the registrant was required to submit and post such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of
“accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer ☐ Accelerated filer ☐ Non-accelerated filer ☒
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
U.S. GAAP x
International Financial Reporting Standards as issued by the International Accounting
Standards Board ☐
Other ☐
If “Other” has been checked in response to the previous question indicate by check mark which financial statement item the Registrant has
elected to follow: Item 17 ☐ Item 18 ☐
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes ☐ No ☒
(APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE PAST FIVE YEARS)
Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13 or 15(d) of the
Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court. Yes ☐ No ☐
TABLE OF CONTENTS
PART I
ITEM 1. Identity of Directors, Senior Management and Advisers.
ITEM 2. Offer Statistics and Expected Timetable.
ITEM 3. Key Information.
ITEM 4. Information on the Company.
ITEM 4A. Unresolved Staff Comments.
ITEM 5. Operating and Financial Review and Prospects.
ITEM 6. Directors, Senior Management and Employees.
ITEM 7. Major Shareholders and Related Party Transactions.
ITEM 8. Financial Information.
ITEM 9. The Offer and Listing.
ITEM 10. Additional Information.
ITEM 11. Quantitative and Qualitative Disclosures About Market Risk.
ITEM 12. Description of Securities Other Than Equity Securities.
PART II
ITEM 13. Defaults, Dividend Arrearages and Delinquencies.
ITEM 14. Material Modifications to the Rights of Security Holders and Use of Proceeds.
ITEM 15. Controls and Procedures.
ITEM 16. [RESERVED]
ITEM 16A. Audit Committee Financial Expert.
ITEM 16B. Code of Ethics.
ITEM 16C. Principal Accountant Fees and Services.
ITEM 16D. Exemptions from the Listing Standards for Audit Committees.
ITEM 16E. Purchases of Equity Securities by the Issuer and Affiliated Purchasers.
ITEM 16F. Change in Registrant’s Certifying Accountant.
ITEM 16G. Corporate Governance.
ITEM 16H. Mine Safety Disclosure.
PART III
ITEM 17. Financial Statements.
ITEM 18. Financial Statements.
ITEM 19. Exhibits
2
4
4
4
5
45
82
82
92
115
116
117
118
137
137
138
138
138
139
140
140
140
141
142
142
142
142
144
144
144
144
145
ABOUT THIS ANNUAL REPORT
All references to “we,” “us,” “our,” “the Company” and “our Company”, in this Annual Report on Form 20-F, or our annual report, are to Galmed
Pharmaceuticals Ltd. and its subsidiaries, unless the context otherwise requires. All references to “shares” or “ordinary shares” are to our ordinary shares, NIS
0.01 nominal par value per share. All references to “Israel” are to the State of Israel. “U.S. GAAP” means the generally accepted accounting principles of the
United States. Unless otherwise stated, all of our financial information presented in this annual report has been prepared in accordance with U.S. GAAP. Any
discrepancies in any table between totals and sums of the amounts listed are due to rounding. Unless otherwise indicated, or the context otherwise requires,
references in this annual report to financial and operational data for a particular year refer to the fiscal year of our company ended December 31 of that year.
Our reporting currency and financial currency is the U.S. dollar. In this annual report, “NIS” means New Israeli Shekel, and “$,” “US$” and “U.S.
dollars” mean United States dollars.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This annual report contains forward-looking statements about our expectations, beliefs or intentions regarding, among other things, our product
development efforts, business, financial condition, results of operations, strategies or prospects. In addition, from time to time, we or our representatives have
made or may make forward-looking statements, orally or in writing. Forward-looking statements can be identified by the use of forward-looking words such
as “believe,” “expect,” “intend,” “plan,” “may,” “should,” “anticipate,” “could,” “might,” “seek,” “target,” “will,” “project,” “forecast,” “continue” or their
negatives or variations of these words or other comparable words or by the fact that these statements do not relate strictly to historical matters. These forward-
looking statements may be included in, among other things, various filings made by us with the U.S. Securities and Exchange Commission, or the SEC, press
releases or oral statements made by or with the approval of one of our authorized executive officers. Forward-looking statements relate to anticipated or
expected events, activities, trends or results as of the date they are made. Because forward-looking statements relate to matters that have not yet occurred,
these statements are inherently subject to risks and uncertainties that could cause our actual results to differ materially from any future results expressed or
implied by the forward-looking statements. Many factors could cause our actual activities or results to differ materially from the activities and results
anticipated in forward-looking statements, including, but not limited to, the factors summarized below:
·
·
·
·
·
·
·
the timing and cost of our ongoing Phase IIB ARREST Study (the “ARREST Study”) and planned Phase III trials, for our product
candidate, AramcholTM (hereinafter referred to as “Aramchol”) for the treatment of patients who are overweight or obese and have pre
diabetes or type II diabetes mellitus (hereinafter OD patients) with Non-Alcoholic Steato-Hepatitis, or NASH, or whether Phase III trials
will be conducted at all;
completion and receiving favorable results of these Phase IIB and Phase III trials for Aramchol;
regulatory action with respect to Aramchol by the U.S. Food and Drug Administration, or FDA, or the European Medicines Authority, or
EMA, including but not limited to acceptance of an application for marketing authorization, review and approval of such application, and, if
approved, the scope of the approved indication and labeling;
the commercial launch and future sales of Aramchol or any other future products or product candidates;
our ability to comply with all applicable post-market regulatory requirements for Aramchol in the countries in which we seek to market the
product;
our ability to achieve favorable pricing for Aramchol;
our expectations regarding the commercial market for NASH in OD patients;
3
·
·
third-party payor reimbursement for Aramchol;
our estimates regarding anticipated capital requirements and our needs for additional financing;
· market adoption of Aramchol by physicians and patients;
·
·
·
the timing, cost or other aspects of the commercial launch of Aramchol;
the development and approval of the use of Aramchol for additional indications or in combination therapy; and
our expectations regarding licensing, acquisitions and strategic operations.
We believe these forward-looking statements are reasonable; however, these statements are only current predictions and are subject to known and
unknown risks, uncertainties and other factors that may cause our or our industry’s actual results, levels of activity, performance or achievements to be
materially different from those anticipated by the forward-looking statements. We discuss many of these risks in this annual report in greater detail under the
heading “Risk Factors” and elsewhere in this annual report. Given these uncertainties, you should not rely upon forward-looking statements as predictions of
future events.
All forward-looking statements attributable to us or persons acting on our behalf speak only as of the date hereof and are expressly qualified in their
entirety by the cautionary statements included in this annual report. We undertake no obligations to update or revise forward-looking statements to reflect
events or circumstances that arise after the date made or to reflect the occurrence of unanticipated events. In evaluating forward-looking statements, you
should consider these risks and uncertainties.
EXPLANATORY NOTE
Market data and certain industry data and forecasts used throughout this annual report were obtained from internal company surveys, market
research, consultant surveys commissioned by the Company, publicly available information, reports of governmental agencies and industry publications and
surveys. Industry surveys, publications, consultant surveys commissioned by the Company and forecasts generally state that the information contained therein
has been obtained from sources believed to be reliable. However, this information may prove to be inaccurate because of the method by which some of the
data for the estimates is obtained or because this information cannot always be verified with complete certainty due to the limits on the availability and
reliability of raw data, the voluntary nature of the data gathering process and other limitations and uncertainties. As a result, the market and industry data and
forecasts included or incorporated by reference in this annual report, and estimates and beliefs based on that data, may not be reliable. We have relied on
certain data from third-party sources, including internal surveys, industry forecasts and market research, which we believe to be reliable based on our
management’s knowledge of the industry. However, we have not ascertained the underlying economic assumptions relied upon therein. Forecasts are
particularly likely to be inaccurate, especially over long periods of time. In addition, we do not necessarily know what assumptions regarding general
economic growth were used in preparing the forecasts we cite. Statements as to our market position are based to the best of our knowledge on the most
currently available data. While we are not aware of any misstatements regarding the industry data presented in this annual report, our estimates involve risks
and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors” in this annual report.
ITEM 1. Identity of Directors, Senior Management and Advisers.
Not applicable.
ITEM 2. Offer Statistics and Expected Timetable.
Not applicable.
PART I
4
ITEM 3. Key Information.
A. Selected Financial Data.
The following table sets forth our selected consolidated financial data for the periods ended and as of the dates indicated, which reflects the financial
data of the Company and the financial data of Galmed Holdings Inc., a holdings company incorporated in the British Virgin Islands, or GHI, our predecessor,
prior to the Reorganization (as described below). The following selected consolidated financial data for our Company should be read in conjunction with the
financial information, “Item 5. Operating and Financial Review and Prospects” and other information provided elsewhere in this annual report and our
consolidated financial statements and related notes. The selected consolidated financial data in this section is not intended to replace the consolidated
financial statements and is qualified in its entirety thereby. In the opinion of our management, our unaudited consolidated financial statements contain all
adjustments, consisting only of normal recurring adjustments, necessary for a fair presentation of our financial position, results of operations and cash flows
as of and for the periods indicated therein.
We derived the selected consolidated financial statements as of and for the years ended December 31, 2016, 2015, 2014, 2013 and 2012, as
applicable, from our audited consolidated financial statements included elsewhere in this annual report.
2012
2013
Year ended December 31,
2014
(in thousands)
2015
2016
Revenue
Research and development expenses
General and administrative expenses
Capital Loss
Operating loss
Financial expenses
Financial Income
Taxes on income
Net loss
Comprehensive loss
Diluted net loss per ordinary
Weighted number of ordinary shares used in
computing loss per ordinary shares
$
$
$
— $
2,443
694
—
3,137
6
—
6
3,149 $
3,149
(*) 0.63 $
— $
7,207
7,355
10
14,572
2,912
—
1
17,485 $
17,485
(*) 3.45 $
— $
6,664
2,478
—
9,142
10
(50)
1
9,103 $
9,099
(*) 0.88 $
— $
7,629
3,246
—
10,875
180
(433)
—
10,622 $
10,832
0.96 $
(467)
14,271
3,078
—
16,882
372
(407)
106
16,953
16,832
1.49
(*) 4,995,837
(*) 5,096,466
(*) 10,323,686
11,101,453
11,374,653
(*) Retroactively adjusted to reflect the 729:1 share split, which occurred upon the consummation of the Reorganization (as defined below).
5
Consolidated Balance Sheet data:
2012
2013
As of December 31,
2014
(In thousands)
2015
2016
$
Cash and cash equivalents
Short-term deposits and marketable securities
Other receivables
Fixed assets
Total assets
Total liabilities
Total shareholders’ equity (deficit )*
Number of ordinary shares issued and outstanding
$
718
—
14
30
762
2,741
(1,979)
4,995,837(*)
$
137
—
16
13
166
2,117
(1,951)
7,099,731(*)
23,736 $
8,250
165
774
32,925
1,518
31,407
11,100,453
4,156 $
18,845
379
883
24,263
2,718
21,545
11,100,453
3,097
12,351
284
718
16,450
5,375
11,075
12,149,226
(*) Retroactively adjusted to reflect the 729:1 share split, which occurred upon the consummation of the Reorganization (as defined below).
Exchange Rate
Galmed reports its financial results and balance sheet position in U.S. dollars. On March 16, 2017, the latest practicable date for inclusion in this
annual report, the exchange rate between New Israeli Shekels and U.S. dollars as published by the Bank of Israel was 3.63 NIS.
The average exchange rates for each of the five most recent fiscal years, calculated by using the average of the exchange rates on the last day of each
month during the period, are set forth below:
Average
1 US $ = NIS
2016
2015
2014
2013
2012
3.84
3.88
3.58
3.61
3.71
The high and low exchange rates for each month during the previous six months are set forth below:
September
2016
October
2016
November
2016
December
2016
January
2017
February
2017
High
1 US $ = NIS
Low
1 US $ = NIS
3.79
3.86
3.88
3.87
3.86
3.77
3.75
3.78
3.80
3.79
3.77
3.66
B. Capitalization and Indebtedness.
Not applicable.
C. Reasons for the Offer and Use of Proceeds.
Not applicable.
6
D. Risk Factors.
Risks Related to Our Financial Position and Capital Requirements
We are a clinical-stage biopharmaceutical company with a history of operating losses. We expect to incur significant additional losses in the future and
may never be profitable.
We are a clinical-stage biopharmaceutical company with an operating history limited to non-clinical and clinical drug development and no approved
products. To date, we have focused nearly exclusively on developing our lead product candidate, Aramchol. In addition, we have limited operating experience
and have not yet demonstrated an ability to successfully overcome many of the risks and uncertainties frequently encountered by companies in new and
rapidly evolving fields, particularly in the pharmaceutical industry. We have funded our research and development programs and operations to date primarily
through proceeds from the private placement of ordinary shares, convertible debt, our initial public offering on March 18, 2014 and ATM Offering (as defined
below). We currently have no products approved for marketing in the United States or any other jurisdiction and have not generated any revenue from product
sales to date, although we have generated revenue from our licensing agreement with Samil Pharm. We have incurred operating losses in each year since the
inception of our predecessor in 2000. Our loss attributable to holders of our ordinary shares for the years ended December 31, 2014, 2015, and 2016 was
approximately $9.1 million, $10.6 million, and $17.0 million, respectively. As of December 31, 2016, we had an accumulated deficit of $64.3 million.
Substantially all of our operating losses resulted from costs incurred in connection with our development program and from general and administrative costs
associated with our operations.
Our ability to become profitable depends upon our ability to generate revenue in excess of our expenses. To date, we have not generated any
revenue, excluding the licensing revenue we recorded in connection with that certain Samil Agreement (as defined below), as our lead product candidate,
Aramchol, is still in clinical development and has not been approved by the FDA, nor has any other product candidate. We do not know when, or if, we will
generate any revenue from sales of our product candidates. We do not expect to generate revenue other than subsequent royalties and/or milestones that can
be earned in connection with the Samil Agreement or other potential license agreements, unless and until we, or an ultimate third-party licensor or acquirer,
obtain regulatory and marketing approval of, and commercialize, Aramchol, or any other product candidate. We will continue to incur research and
development and general and administrative expenses related to our operations. We expect to continue to incur losses for the foreseeable future, which may be
significant, and these losses will likely increase as we:
·
·
·
·
·
initiate and manage additional clinical trials in multiple medical indications for Aramchol, initiate additional research and development
programs;
seek regulatory approvals for our product candidate, or future product candidates, if any;
implement internal systems and infrastructures, including, without limitation, hiring of additional personnel as needed and developing sales
and marketing functions if and when our product candidate receives applicable regulatory approval if we opt to commercialize it ourselves;
seek to in-license additional products or technologies to develop;
hire additional management and other personnel; and
· move towards commercialization of our product candidate, and future product candidates, if any.
We may out-license Aramchol, including through a territorial license, a worldwide license, or a license for a particular indication, before it is
approved by any applicable regulatory agency, commercialized and/or generates revenue, depending on a number of factors, including, but not limited to, our
ability to:
·
·
demonstrate a compelling and/or novel, non-clinical, unique mechanism of action of Aramchol;
obtain adequate clinical results from and progress the clinical development of Aramchol;
7
·
·
·
develop and obtain regulatory approvals in the countries and for the uses we intend to pursue for Aramchol;
contract for the manufacture of commercial quantities of Aramchol by a current good manufacturing practice, or cGMP, compliant
manufacturing facility at acceptable cost levels if marketing approval is received; and
establish external, and potentially in the future, internal, sales and marketing capabilities to effectively market and sell Aramchol in the
United States and other countries.
Even if Aramchol is approved for commercial sale for the treatment of NASH in OD patients, or for any other indications, it may not gain market
acceptance or achieve commercial success. In addition, we anticipate incurring significant costs associated with seeking regulatory approval and
commercialization. We may not achieve profitability soon after generating product revenue, if ever. If we are unable to generate product revenue, we will not
become profitable and would be unable to continue operations without additional funding.
We expect our research and development expenses to increase in connection with our planned clinical trials and initiation of clinical trials for other
indications. In addition, if we obtain marketing approval for Aramchol and opt to commercialize it ourselves, we will likely initially incur significant
expenses associated with outsourcing sales, marketing and manufacturing functions to third parties, as well as continued research and development expenses.
Furthermore, we expect to incur additional costs associated with operating as a public company. As a result, we expect to continue to incur significant and
increasing operating losses for the foreseeable future. Because of the numerous risks and uncertainties associated with developing pharmaceutical products,
we are unable to predict the extent of any future losses or when we will become profitable, if at all.
Our limited operating history makes it difficult to evaluate our business and prospects.
Our operating history is limited to clinical development of one product, and our operations to date have been limited primarily to research and
development, raising capital and recruiting scientific and management personnel and third-party partners. Therefore, it may be difficult to evaluate our
business and prospects. We have not yet demonstrated an ability to commercialize or obtain regulatory approval for any product candidate. Consequently, any
predictions about our future performance may not be accurate, and you may not be able to fully assess our ability to complete development and/or
commercialize our product candidate, or any future product candidate, obtain regulatory approvals or achieve market acceptance or favorable pricing for our
product candidate or any future product candidate.
We have not yet commercialized any products and we may never be able to do so, and even if we do, the products may not gain market acceptance.
We have not yet commercialized any products and we may never be able to do so. We do not know when or if we will complete any of our product
development efforts, obtain regulatory approval for any product candidates or successfully commercialize any approved products. Even if we are successful
in developing products that are approved for marketing, we will not be successful unless these products gain market acceptance for appropriate indications at
favorable reimbursement rates. The degree of market acceptance for these products will depend on a number of factors, including:
·
·
·
·
the timing and scope of regulatory approvals in the countries we intend to pursue with respect to the commercialization of our product
candidates, including the indications for which they are approved;
the competitive environment;
the ability for our products to be manufactured, whether by us or third parties, in compliance with applicable regulatory requirements,
including cGMP;
our ability to effectively promote our products, whether directly or using third parties, consistent with the approved indications and labeling
in the countries in which we intend to pursue approval;
8
·
·
·
·
the acceptance by the medical community of the safety and clinical efficacy of our products and their potential advantages over other
therapeutic products;
the development of a non-invasive method for diagnosing NASH as an alternative to the current gold standard of liver biopsy, which we
view as a rate-limiting factor to complete market uptake because of its expense and its risks and discomfort to patients;
the adequacy and success of distribution, sales and marketing efforts, including through strategic agreements with pharmaceutical and
biotechnology companies; and
the pricing and reimbursement policies of government and third-party payors, such as insurance companies, health maintenance
organizations and other plan administrators.
Physicians, patients, third-party payors or the medical community in general may be unwilling to accept, utilize or recommend, and in the case of
third-party payors, reimburse any of our planned future products. As a result, we are unable to predict the extent of future losses or the time required to
achieve profitability, if at all. Even if we successfully develop one or more products, we may not become profitable.
We will need substantial, additional capital in the future. If additional capital is not available, we will have to delay, reduce or cease operations.
We currently estimate that our cash position will support our current clinical trials and operations through the first half of 2018. We believe these
funds will enable us to complete any preparatory clinical and non-clinical work, as well as our ARREST Study. We will need to raise substantial, additional
capital to fund our operations and to develop Aramchol for, and beyond its current development stage for the NASH indication, as well as additional
indications, and ultimately commercialize it, if we opt to do so ourselves, for NASH or any other indication. In addition, we may choose to expand our current
research and development focus, or other clinical operations as well as the development of a non-invasive biomarkers, which may also require additional
capital. As of December 31, 2016, we had a net working capital of $11.2 million, cash and cash equivalents of $3.1 million and marketable securities of $12.4
million. Our future capital requirements may be substantial and will depend on many factors including:
·
·
·
·
·
·
·
·
·
adhering to patient recruitment in our ongoing and planned clinical trials and sponsored trials;
our clinical trials and sponsored trials results;
developing Aramchol for the treatment of other conditions or indications beyond those being explored in the ARREST Study and the
ARamchol for the Reversal of HIV-AssociatEd lipodystrophy and NAFLD study (the “ARRIVE Study”), or possible label expansion of
Aramchol once its approved, if at all, for the treatment of other conditions or indications;
the cost of filing and prosecuting patent applications and the cost of defending our patents;
the cost of prosecuting infringement actions against third parties;
the cost, timing and outcomes of seeking marketing approval of Aramchol;
the costs associated with commercializing Aramchol if we receive marketing approval, and choose to commercialize Aramchol ourselves,
including the cost and timing of establishing external, and potentially in the future, internal, sales and marketing capabilities to market and
sell Aramchol;
subject to receipt of marketing approval, revenue received from sales of approved products, if any, in the future;
the costs associated with any product liability or other lawsuits related to our future product candidates or products, if any;
9
·
·
·
·
·
the costs associated with post-market compliance with regulatory requirements, and of addressing any allegations of non-compliance by
regulatory authorities in countries where we plan to market and sell Aramchol;
the demand for our products;
the costs associated with developing and/or in-licensing other research and development programs;
the expenses needed to attract and retain skilled personnel; and
the costs associated with being a public company.
Based on our current operating plan, we anticipate that our existing resources will be sufficient to enable us to maintain our currently planned
operations, including our continued product development, through the first half of 2018. We believe these funds will enable us to complete any preparatory
clinical and non-clinical work, as well as our ARREST Study, and other clinical and non-clinical programs, assuming that we adhere to patient recruitment
based on our current estimation. We will require significant additional funds to initiate and complete additional clinical trials, including but not limited to a
potential Phase III pivotal trial for the treatment of OD patients with NASH, and the FDA and EMA approval processes. However, changing circumstances
may cause us to consume capital significantly faster than we currently anticipate, such as losing our Small and Medium Enterprise status at the EMA, which
entitles us to significant fee reductions. Because there are numerous risks and uncertainties associated with the development and commercialization of our
product candidates, we are unable to estimate the amount of increased capital outlays and operating expenditures associated with our anticipated clinical
trials. We have no committed external sources of funds. Additional financing may not be available when we need it or may not be available on terms that are
favorable to us and additional financing may cause significant dilution to our existing shareholders. If adequate funds are not available to us on a timely basis,
or at all, we may be required to terminate or delay planned or ongoing clinical trials or other development activities for Aramchol.
Raising additional capital may be costly or difficult to obtain and will dilute current shareholders’ ownership interests, potentially substantially.
Any debt, equity or structured financing that we may need or desire may not be available on terms favorable to us, or at all. If we obtain funding
through a strategic collaboration or licensing arrangement, we may be required to relinquish our rights to certain of our technologies, products or marketing
territories. If we are unable to obtain required additional capital, we may have to curtail our growth plans or cut back on existing business, and we may not be
able to continue operating if we do not generate sufficient revenues from operations needed to stay in business.
We may incur substantial costs in pursuing future capital financing, including investment banking fees, legal fees, accounting fees, securities law
compliance fees, printing and distribution expenses and other costs. We may also be required to recognize non-cash expenses in connection with certain
securities we issue, such as convertible notes and warrants, which may adversely impact our capital structure, financial condition and results of operations.
Any additional capital raised through the sale of equity or equity-linked securities will dilute our current shareholders’ ownership in us, potentially
substantially, and could also result in a decrease in the market price of our ordinary shares. The terms and conditions of those securities issued by us in future
capital transactions may be more favorable to new investors and may include the issuance of warrants or other derivative securities, which may have a further
dilutive effect.
10
We are unable to estimate our long-term capital requirements due to uncertainties associated with the development and commercialization of our product
candidate. If we fail to obtain necessary funds for our operations, we will be unable to maintain and improve our intellectual property and technology,
and we will be unable to develop and commercialize our product candidate.
Our long-term capital requirements are expected to depend on many potential factors, including, among others:
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
the number of product candidates in development;
the size, duration and scope of existing and future clinical trials and non-clinical studies;
the regulatory path of our product candidates;
the results of our clinical trials, which are unpredictable in product candidate development;
our ability to successfully commercialize our product candidates, including securing commercialization and out-licensing agreements with
third parties and favorable pricing and market share;
the progress, success and cost of our clinical trials and research and development programs, including those associated with milestones and
royalties;
the costs, timing and outcome of regulatory review and obtaining regulatory approval of our product candidates and addressing regulatory
and other issues that may arise post-approval;
the breadth of the labeling, assuming that our product candidate is approved for commercialization by a relevant regulatory authority, which
may not occur;
our need, or decision, to acquire or in-license complementary technologies or new platform technologies or product candidates;
the costs of enforcing our issued patents and defending intellectual property-related claims;
the costs of investigating patents that might block us from developing potential product candidates;
the costs of recruiting and retaining qualified personnel;
the costs associated with contracting with third parties to manufacture the product and to perform other necessary services;
our revenue, if any; and
our consumption of available resources more rapidly than currently anticipated, resulting in the need for additional funding sooner than
anticipated.
If we are unable to obtain the funds necessary for our operations, we will be unable to maintain and improve our intellectual property and
technology, and we will be unable to develop and commercialize Aramchol, or other product candidates, which would materially and adversely affect our
business, liquidity and results of operations.
11
We may become subject to the payment of taxes in connection with the Reorganization.
On February 2, 2014, we underwent a reorganization, or the Reorganization, pursuant to which all of our current business (including our intellectual
property) was transferred to us. The Reorganization was effected by way of share transfers and asset transfers, as follows: First, GHI, our predecessor,
transferred the entire share capital of Galmed 2000 Inc., a holdings company incorporated in the British Virgin Islands, or GTTI, to the Company; next, GTTI
transferred the entire share capital of Galmed International Limited, a company incorporated in Malta, a European Union, or EU, member state, or GIL, to the
Company; then, GIL transferred and assigned all of its intellectual property to Galmed Research and Development Ltd., a newly formed Israeli company, or
GRD. GIL held all of the equity rights in and to Galmed Medical Research Ltd., an Israeli company, or GMR. In connection with the Reorganization, we
obtained a tax pre-ruling, or the Tax Pre-Ruling, from the Israeli Tax Authority. The Tax Pre-Ruling confirms that the transfer of shares and assets resulting in
the Company as the parent company and 100% equity-owner of GRD, which holds all of the Group’s intellectual property, including the Company’s patent
portfolio, GIL and GTTI, is not taxable pursuant to the provisions of Sections 131 and 132 of the Income Tax Ordinance (New Version) — 1961, or the Israeli
Tax Ordinance, as long as certain requirements are met. However, we have not obtained a tax pre-ruling from the tax authorities in the British Virgin Islands
with respect to the transfer of the shares of GTTI and the transfer of the shares of GIL to the Company, or from the tax authorities in Malta with respect to the
transfer of the intellectual property of GIL to GRD. We believe that such transfers of shares and assets are not taxable in the British Virgin Islands and Malta,
respectively. However, there can be no assurance that we will not become subject to the payment of taxes in the British Virgin Islands, with respect to the
transfers of shares as aforesaid, or in Malta, in connection with the transfer of the intellectual property as mentioned above. See also “Item 4. Information on
the Company—Historical Background and Corporate Structure” below.
Risks Related to Our Business, Industry and Regulatory Requirements
We depend largely on the success of our lead product candidate, Aramchol, and we may not obtain regulatory approval of Aramchol.
We have invested almost all of our efforts and financial resources in the research and development (clinical and non-clinical) of Aramchol, which is
currently our lead product candidate. As a result, our business is largely dependent on our ability to complete the development of, obtain regulatory approval
for and successfully commercialize Aramchol in a timely manner. The process to develop, obtain regulatory approval for and commercialize Aramchol is
long, complex, costly and uncertain as to its outcome.
The research, development, testing, clinical trials, manufacturing, labeling, approval, sale, marketing and distribution of drugs are subject to
extensive regulation by the FDA and other regulatory agencies in other countries. These regulations differ from jurisdiction to jurisdiction. We have not
received marketing approval for Aramchol in any jurisdiction. We are not permitted to market Aramchol, or any other product candidate, in the United States
until we receive approval of a New Drug Application, or NDA, from the FDA, or in any foreign countries until we receive the requisite approval from the
respective regulatory agencies in such countries. We are currently in the midst of conducting the Phase IIB ARREST Study and have not yet begun any
pivotal study of Aramchol, We have not received regulatory authorization to conduct the clinical trials that are necessary to file an NDA with the FDA or
comparable applications to other regulatory authorities in other countries. The results of clinical trials may be unsatisfactory, and even if we believe those
clinical trials to be successful, the FDA, or other regulatory authorities, may not grant marketing authorization should we be in a position to request it.
The requirements and length of time for approval vary in different jurisdictions and could involve additional studies of Aramchol beyond those we
currently anticipate, including potentially post-approval studies. The time required to obtain approval in other countries might differ from that required to
obtain FDA approval in the United States. The marketing approval process in other countries may include all of the risks detailed above regarding FDA
approval as well as other risks. In particular, in many countries outside the United States, it is required that a product receive pricing and reimbursement
approval before the product can be commercialized. This can result in substantial delays in such countries. In other countries, product approval depends on
showing superiority to an approved therapy. This can result in significant expense to conduct complex clinical trials. Finally, we do not have any products
approved for sale in any jurisdiction, including international markets, and we do not have experience in obtaining regulatory approval in international
markets. If we fail to comply with regulatory requirements in international markets or to obtain and maintain required approvals or if regulatory approvals in
international markets are delayed, our target market will be reduced and our ability to realize the full market potential of our products will be harmed.
Marketing approval in one jurisdiction does not ensure marketing approval in another, but a failure or delay in obtaining marketing approval in one
jurisdiction may have a negative effect on the regulatory process in others. Failure to obtain marketing approval in other countries or any delay or setback in
obtaining such approval would impair our ability to develop foreign markets for Aramchol. This would reduce our target market and limit the full commercial
potential of Aramchol.
12
We may be forced to abandon development of Aramchol, or other future product candidates, which will significantly impair our ability to generate
product revenues.
Upon the completion of any clinical or non-clinical trial and/or tests, the results might not support the desired indications for use. Further, success in
earlier clinical trials does not ensure that later clinical trials will be successful, and the results of later clinical trials may not replicate the results of prior
clinical trials or non-clinical testing. The clinical trial process may fail to demonstrate that Aramchol is safe and effective for the indications we seek. Any
such failure may cause us to abandon Aramchol and may delay development of other product candidates. Any delay in, or termination or suspension of, our
clinical trials will delay the requisite filings with the FDA or other regulatory agencies and, ultimately, our ability to commercialize our product candidates
and generate product revenues. If the clinical trials do not support our desired indications, the completion of development of such product candidate may be
significantly delayed or abandoned, which will significantly impair our ability to generate revenues and will materially adversely affect our results of
operations.
If we acquire or in-license additional technologies or product candidates, we may incur significant, incremental expenses, may have integration
difficulties and may experience other risks that could harm our business and results of operations.
We may acquire or in-license additional product candidates and technologies. Any product candidate or technologies we in-license or acquire will
likely require additional development efforts prior to commercial sale, including extensive non-clinical or clinical testing, or both, and approval by the FDA
and applicable foreign regulatory authorities, if any. All product candidates are prone to risks of failure inherent in pharmaceutical product development,
including the possibility that the product candidate, or product developed based on in-licensed technology, will not be shown to be sufficiently safe and
effective for approval by regulatory authorities. In addition, we cannot assure that any product candidate that we develop based on acquired or in-licensed
technology that is granted regulatory approval will be manufactured or produced economically, successfully commercialized or widely accepted or
competitive in the marketplace. Moreover, integrating any newly acquired or in-licensed product candidates could be expensive and time-consuming. If we
cannot effectively manage these aspects of our business strategy, our business may not succeed.
The clinical trial process is complex and expensive, and commencement and completion of clinical trials can be delayed or prevented for a number of
reasons.
We may not be able to complete or commence the clinical trials that would support our submission of an NDA to the FDA, a Marketing
Authorization Application, or MAA, to the EMA or any similar submission to regulatory authorities in other countries. Drug development is a long,
expensive and uncertain process, and delay or failure can occur at any stage of any of our clinical trials. The fact that the FDA, EMA or other regulatory
authorities permit a company to conduct human clinical trials is no assurance or guarantee that the trials will be successful. On the contrary, most candidate
drugs that begin clinical trials (including, but not limited to, Phase II trials, such as our ARREST Study) do not prove to be successful and do not result in the
filing of an NDA, MAA or similar filing. Drug candidates that successfully complete one phase of clinical trials may prove unsuccessful at a subsequent
phase. Human clinical trials are very expensive and difficult to design and implement, in part because they are subject to rigorous regulatory requirements and
in part because the results of clinical trials are inherently uncertain and unpredictable. Regulatory authorities, such as the FDA, may decline to permit a
clinical trial to proceed or may suspend a clinical trial that it has previously permitted to proceed. Additionally, the clinical trial process is time-consuming,
and failure can occur at any stage of the trials. We may encounter problems that cause us to abandon or repeat clinical trials. The commencement and
completion of clinical trials may be delayed by several factors, including:
·
·
difficulties obtaining regulatory authorization to commence a clinical trial or complying with regulatory requirements for clinical trials or
with the conditions imposed by a regulatory authority regarding the scope or duration of a clinical trial;
delays in reaching or failing to reach agreement on acceptable terms with prospective contract research organizations, or CROs, and trial
sites, the terms of which can be subject to extensive negotiation and may vary significantly among different CROs and trial sites;
13
·
·
·
·
·
insufficient or inadequate supply or quality of a product candidate or other materials necessary to conduct our clinical trials;
difficulties in obtaining institutional review board, or IRB, approval to conduct a clinical trial at a prospective site;
delays resulting from a decision of the FDA not to designate Aramchol as a Breakthrough Therapy, a designation that could, among other
benefits, expedite the conduct of clinical trials;
challenges in recruiting and enrolling patients to participate in clinical trials for a variety of reasons, including size and nature of patient
population, proximity of patients to clinical sites, eligibility and exclusion criteria for the trial, nature of trial protocol, the availability of
approved effective treatments for the relevant disease and competition from other clinical trial programs for similar indications; and
Inadequate funding.
The ARREST Study may also be delayed or terminated as a result of, but not limited to, safety signals. In addition, the ARREST Study or other
clinical trials may be suspended or terminated by us, the FDA or other regulatory authorities, the principal investigator at a site, the IRBs at the sites where
such boards are overseeing a trial or the data safety monitoring board, or DSMB, that is overseeing the clinical trial at issue, or other regulatory authorities
due to a number of factors, including:
·
·
·
·
irregularities in conducting a clinical trial, including by way of example, failure to conduct the clinical trial in accordance with regulatory
requirements, in particular good clinical practice requirements, or GCP, or the FDA-authorized clinical protocols;
negative findings upon inspection of the clinical trial operations or trial sites by the FDA or other regulatory authorities;
safety issues or lack of clinical drug activity or effectiveness; and
lack of adequate funding to continue the clinical trials.
To date, we have already experienced material delays in the ARREST Study largely related to significantly slower than expected recruitment and the
length of time required to obtain regulatory authorizations to proceed with clinical trials, as well as the termination of a Phase IIA trial of Aramchol for the
treatment and dissolution of cholesterol gallstones. We may experience further delays in any or all of our clinical trials, and there can be no assurance that we
will not experience such risks in the future as we progress with our planned clinical trials.
Furthermore, positive results in previous clinical studies of Aramchol may not be predictive of similar results in future clinical trials. Also, interim
results, if at all, during a clinical trial do not necessarily predict final results. A number of companies in the pharmaceutical and biotechnology industries have
suffered significant setbacks in late-stage clinical trials even after achieving promising results in early- and mid-stage development. Accordingly, the results
from the completed non-clinical studies and clinical trials for Aramchol may not be predictive of the results we may obtain in later stage trials. Our clinical
trials may produce negative or inconclusive results, and we may decide, or regulators may require us, to conduct additional clinical and/or non-clinical trials,
or to even terminate the development program entirely. Moreover, clinical data are often susceptible to varying interpretations and analyses, and many
companies that believed their product candidates performed satisfactorily in non-clinical and clinical studies have nonetheless failed to obtain FDA or EMA,
or other regulatory agency, approval for their products.
In addition, we or regulatory authorities may suspend our clinical trials at any time if it appears that we are exposing participants to unacceptable
health risks or if the regulatory authorities find deficiencies in our regulatory submissions or the conduct of such trials. Any suspension of clinical trials will
delay possible regulatory approval, if any, and adversely impact our ability to develop products and generate revenue.
14
The lack of a reliable non-invasive method for the diagnosis of NASH is likely to present a major challenge to our product candidate’s market
penetration, if ever commercialized.
Liver biopsy is the standard approach for the diagnosis of inflammation and fibrosis associated with NASH. However, the procedure-related
morbidity and, in rare cases, mortality, sample errors, costs, patient discomfort and thus lack of patient interest in undergoing the procedure limit its use. As
such, only patients with a high risk of NASH, which includes patients with metabolic syndrome and an indication of Non-Alcoholic Fatty Liver Disease, or
NAFLD, are generally sent for liver biopsy. Because NASH tends to be asymptomatic until the disease progresses, many individuals with NASH remain
undiagnosed until the disease has reached its late stages, if at all. The lack of a reliable non-invasive method for the diagnosis of NASH is likely to present a
major challenge to Aramchol’s market penetration, as many practitioners and patients may not be aware that a patient suffers from NASH and requires
treatment. As such, use of Aramchol might not be as wide-spread as our actual target market and this may limit the commercial potential of Aramchol.
A further challenge to Aramchol’s market penetration is that currently a liver biopsy is the standard approach for measuring improvement in NASH
patients. Because it would be impractical to subject all patients that take Aramchol, when and if it approved, to regular and repeated liver biopsies, it will be
difficult to demonstrate Aramchol’s effectiveness to practitioners and patients unless and until a reliable non-invasive method for the diagnosis and
monitoring of NASH becomes available, as to which there can be no assurance.
While we, and other companies in the industry, are currently working on advancing non-invasive diagnostic approaches, none of these has been
clinically validated, and the timetable for commercial validation, if at all, is uncertain. Moreover, such diagnostics may also be subject to regulation by FDA
or other regulatory authorities as medical devices and may require premarket clearance or approval.
Obtaining approval of an NDA, or other regulatory approval, even after clinical trials that are believed to be successful, is an uncertain process.
Even if we complete our planned clinical trials and believe that the clinical data confirms that the drug is both safe and effective for its intended use
or uses, obtaining approval of an NDA, or similar regulatory application, is an extensive, lengthy, expensive and uncertain process, and the FDA and other
regulatory agencies may delay, limit or deny approval of Aramchol for many reasons, including, without limitation, the fact that:
·
·
·
·
·
·
·
·
we may not be able to demonstrate to the satisfaction of the applicable regulatory agencies that Aramchol is safe and effective for treatment
of NASH in OD patients or for any other indication;
the results of clinical trials may not meet the level of statistical significance or clinical significance required by the applicable regulatory
agencies for approval;
the applicable regulatory agencies may disagree with the number, design, size, conduct or implementation of our clinical trials;
the applicable regulatory agencies may not find the data from non-clinical studies and clinical trials sufficient to demonstrate that
Aramchol’s clinical and other benefits outweigh its safety risks;
the applicable regulatory agencies may disagree with our interpretation of data from non-clinical studies or clinical trials;
the applicable regulatory agencies may not accept data generated at our clinical trial sites;
the data collected from non-clinical studies and clinical trials of Aramchol may not be sufficient to support the submission of an NDA or
similar regulatory application;
the applicable regulatory agencies may not schedule an advisory committee meeting in a timely manner or the advisory committee may
recommend against approval of our application or may recommend that the applicable regulatory agencies require, as a condition of
approval, additional non-clinical studies or clinical trials, limitations on approved labeling or distribution and use restrictions;
15
·
·
·
·
·
the applicable regulatory agencies may require development of a risk evaluation and mitigation strategy, or REMS, as a condition of
approval;
the applicable regulatory agencies may require simultaneous approval for both adults and children, which would delay required approvals,
or we may have successful clinical trial results for adults, but not children, or vice versa;
the applicable regulatory agencies may change their approval policies or adopt new regulations that may impede consideration or approval
of our NDA, or similar regulatory application;
the applicable regulatory agencies may identify deficiencies in the manufacturing processes or facilities of third-party manufacturers, or
suppliers of active pharmaceutical ingredients, or APIs, with which we enter into agreements for clinical and commercial supplies; and
the applicable regulatory agencies may require post-marketing approval studies, such as Phase IV clinical trials, in connection with
Aramchol.
Before we can submit an NDA to the FDA or a similar approval application to other regulatory authorities, as applicable, we (or our
commercialization partner, as the case may be) must complete the ongoing ARREST Study and conduct one or more Phase III clinical trials that will be
substantially broader than our Phase IIB trial. We will also need to agree on a protocol with the FDA for any Phase III clinical trial(s) before commencing that
trial in the United States. Clinical trials frequently produce unsatisfactory results even though prior clinical trials were successful. Therefore, the results of the
ARREST Study or Phase III clinical trials that we conduct may or may not be successful. The applicable regulatory agencies may suspend all clinical trials or
require that we conduct additional clinical, non-clinical, manufacturing, validation or drug product quality studies and submit data from these additional
studies before considering or reconsidering the NDA or similar regulatory application. Depending on the extent of these, or any other studies, approval of any
applications that we submit may be delayed by several years, or may require us to expend more resources than we have available. It is also possible that
additional studies, if performed and completed, may not be considered sufficient by the applicable regulatory agencies to provide regulatory approval. If any
of these outcomes occur, we would not receive approval for Aramchol and may be forced to cease operations.
Even if we obtain regulatory approval for Aramchol, the approval might contain significant limitations related to the indications for use for which the
drug is approved, use restrictions including, without limitation, for certain labeled populations, age groups, warnings, precautions or contraindications, or may
be subject to significant post-marketing studies or risk mitigation requirements. If we are unable to successfully commercialize Aramchol, we may be forced
to cease operations.
Aramchol may produce undesirable side effects that we may not detect in our clinical trials, which could prevent us from achieving or maintaining
market acceptance of this product candidate and could substantially increase commercialization costs or even force us to cease operations.
Even if Aramchol receives marketing approval, we or others may later identify undesirable side effects caused by the product. In such an event,
regulatory authorities may:
·
·
·
·
suspend or withdraw their approval of the product;
require the addition of labeling statements, such as warnings, so-called “black box warnings,” contraindications or restrictions on the
product’s intended use;
require us to issue specific communications to healthcare professionals, such as “Dear Doctor” letters;
issue negative publicity regarding the affected product, including safety communications;
16
·
impose a risk evaluation and mitigation strategy (REMS), in the case of FDA, or similar risk management strategies in the case of foreign
regulators;
In addition to these potentially significant negative consequences, we could be required to change the way the product is administered, conduct
additional non-clinical studies or clinical trials or restrict or cease the distribution or use of the product, and/or be sued and held liable for harm caused to
patients. The foregoing or other events could prevent us from achieving or maintaining market acceptance of the affected product candidate and could
substantially increase commercialization costs or even force us to cease operations.
If we encounter difficulties enrolling patients in our clinical trials, our clinical development activities could be delayed or otherwise adversely affected.
Patient enrollment, a significant factor in the timing of clinical trials, is affected by many factors including the size and nature of the patient
population, the proximity of patients to clinical sites, the eligibility criteria for the trial, the design of the clinical trial, patient willingness to undergo a liver
biopsy in our NASH trials, competing clinical trials and clinicians’ and patients’ perceptions as to the potential advantages and disadvantages of the product
candidate being studied in relation to other available therapies, including any new drugs that may be approved for the indications we are investigating.
Potential patients for Aramchol may not be adequately diagnosed or identified with the diseases which we are targeting or may not meet the entry criteria for
our studies.
We will be required to identify and enroll a sufficient number of patients in the U.S. with NASH for each of our ongoing and planned clinical trials
of Aramchol in this indication. We also may encounter difficulties in identifying and enrolling U.S. NASH patients who meet the eligibility criteria for our
planned clinical trials. We may not be able to initiate or continue clinical trials if we are unable to locate a sufficient number of eligible patients to participate
in the clinical trials required by the FDA or other foreign regulatory agencies. In addition, the process of finding and diagnosing patients may prove costly.
Our inability to enroll a sufficient number of patients for any of our clinical trials would result in significant delays, additional expenses, or may require us to
abandon one or more clinical trials.
Changes in regulatory requirements and guidance or unanticipated events during our clinical trials may occur, which may result in necessary changes to
clinical trial protocols, which could result in increased costs to us, delay our development timeline or reduce the likelihood of successful completion of
our clinical trials.
Changes in regulatory requirements or guidance or unanticipated events during our clinical trials may result in the need for us to amend clinical trial
protocols. Amendments may require review and approval by regulators and/or IRBs, and re-consent subjects, which may adversely affect the cost, timing or
successful completion of a clinical trial. If we experience delays in the completion of, or if we terminate, any of our clinical trials, the commercial prospects
for Aramchol would be harmed and our ability to generate product revenue would be delayed, possibly materially.
We cannot be certain that the results of our potential Phase III clinical trials, even if all endpoints are met, will support definitive regulatory approval of
Aramchol for the treatment of NASH in OD patients.
Further, specific to us, a number of issues still remain unclear with regard to the potential Phase III protocol, including, among other issues, the (i)
duration of study, (ii) number of subjects required, (iii) dosages, and (iv) approvable endpoints. These factors, among others, would play a material role in
determining the cost of such study(ies) and ultimate probability of success.
17
Even if Aramchol, or any other product candidate that we may develop, receives marketing approval, we will continue to face extensive regulatory
oversight and requirements, and any such product may still face future regulatory risks or new requirements.
Even if we receive regulatory approval to market a particular product candidate, any such product will remain subject to extensive regulatory
requirements, including requirements relating to manufacturing, labeling, packaging, adverse event reporting, storage, advertising, promotion, distribution and
recordkeeping. Even if regulatory approval of a product is granted, the approval may be subject to limitations on the uses for which the product may be
marketed or the conditions of approval, or may contain requirements for costly post-marketing testing and surveillance to monitor the safety or efficacy of the
product, which could negatively affect us by reducing revenues or increasing expenses, and cause the approved product candidate not to be commercially
viable. In addition, as clinical experience with a drug expands after approval, typically because it is used by a greater number and more diverse group of
patients after approval than during clinical trials, side effects and other problems may be observed over time after approval that were not seen or anticipated
during pre-approval studies. Any adverse effects observed after the approval and marketing of a product candidate could result in limitations on the use of the
approved product, withdrawal of FDA approval of the previously approved product, or voluntary withdrawal from the marketplace of the approved product.
Absence of long-term safety data may also limit the approved uses of our products, if any. If we fail to comply with the regulatory requirements of the FDA,
and other applicable U.S. and foreign regulatory authorities, or previously unknown problems with any approved commercial products, manufacturers or
manufacturing processes are discovered, we could be subject to administrative or judicially imposed sanctions or other setbacks, including the following:
·
·
·
·
·
·
·
·
·
·
suspension or imposition of restrictions on operations, including costly new manufacturing requirements;
refusal to approve pending applications or supplements to applications;
suspension of any ongoing clinical trials;
suspension or withdrawal of marketing approval;
an injunction or imposition of civil or criminal penalties or monetary fines;
seizure or detainment of products;
banning or restriction of imports and exports;
issuance of warning letters or untitled letters;
suspension or imposition of restrictions on operations, including costly new manufacturing requirements; or
refusal to approve pending applications or supplements to applications.
In addition, various aspects of our operations are subject to federal, state or local laws, rules and regulations, any of which may change from time to
time. Costs arising out of any regulatory developments could be time-consuming and expensive and could divert management resources and attention and,
consequently, could adversely affect our business operations and financial performance.
Delays in regulatory approval, limitations in regulatory approval and withdrawals of regulatory approval may have a material adverse effect on the
Company. If we experience significant delays in testing or receiving approvals or sign-offs to conduct clinical trials, our product development costs will
increase and our ability to out-license product candidates may be impeded.
If we obtain approval to commercialize Aramchol outside of the United States, a variety of risks associated with international operations could materially
adversely affect our business.
If Aramchol is approved for commercialization outside the United States, we will likely enter into agreements with third parties to commercialize
Aramchol outside the United States. We expect that we will be subject to additional risks related to entering into or maintaining international business
relationships, including, without limitation:
·
·
different regulatory requirements for drug approvals in foreign countries;
differing U.S. and foreign drug import and export rules;
18
·
·
·
·
·
·
·
·
·
·
·
reduced protection for intellectual property rights in foreign countries;
unexpected changes in tariffs, trade barriers and regulatory requirements;
different reimbursement systems;
economic weakness, including inflation, or political instability in particular foreign economies and markets;
compliance with tax, employment, immigration and labor laws for employees living or traveling abroad;
foreign currency fluctuations, which could result in increased operating expenses and reduced revenues, and other obligations incident to
doing business in another country;
workforce uncertainty in countries where labor unrest is more common than in the United States;
production shortages resulting from any events affecting raw material supply or manufacturing capabilities abroad;
potential liability resulting from development work conducted by these distributors;
business interruptions resulting from geopolitical actions, including war and terrorism, or natural disasters; and
risks associated with clinical co-development agreements in other jurisdictions prior to or post-regulatory approval.
A failure to timely and effectively address the additional risks related to entering into or maintaining international business relationships could have a
material adverse effect on our business, liquidity operating results and financial condition.
If we receive marketing approval for Aramchol, sales will be limited unless the product achieves broad market acceptance.
The commercial success of Aramchol, or potentially any other future product candidate for which we obtain marketing approval from the FDA, or
other regulatory authorities, will depend on the breadth of its approved labeling and upon the acceptance of the product by the medical community, including
physicians, patients and healthcare payors. The degree of market acceptance of any approved product will depend on a number of factors, including, without
limitation:
·
·
·
·
·
·
·
demonstration of clinical safety and efficacy compared to other products;
ability of physicians to accurately diagnose NASH in its early stages;
the relative convenience and ease of administration;
the prevalence and severity of any adverse side effects;
limitations, warnings or contraindications contained in the product’s approved labeling;
distribution and use restrictions imposed by the FDA, or other regulatory agencies, or agreed to by us as part of a mandatory or voluntary
REMS;
availability of alternative treatments, including, in the case of Aramchol, a number of competitive products already approved or expected to
be commercially launched in the near future;
19
·
·
·
·
pricing and cost effectiveness;
the effectiveness of our, or any future collaborators’, sales and marketing strategies;
our ability to obtain sufficient third-party coverage or reimbursement; and
the willingness of patients to pay for drugs out of pocket in the absence of third-party coverage.
If Aramchol is approved, but does not achieve an adequate level of acceptance by physicians, healthcare payors and patients, we may not generate
sufficient revenue from the product, and we may not become profitable. In addition, our efforts to educate the medical community and third-party payors on
the benefits of the product may require significant resources and may never be successful.
The FDA and other regulatory agencies actively enforce the laws and regulations prohibiting the promotion of off-label uses. If we are found to have
improperly promoted off-label uses, we may become subject to significant liability.
The FDA and other regulatory agencies strictly regulate the promotional claims that may be made about prescription products. In particular, a
product may not be promoted for uses that are inconsistent with the FDA-approved indications and other conditions or restrictions contained in the approved
labeling, including the prescribing information, for the product. In particular, any labeling approved by FDA or other foreign regulatory agencies for
Aramchol necessarily limits its use for certain conditions in certain patient populations. Also, regulatory agencies may impose further requirements or
restrictions on the distribution or use of Aramchol as part of a mandatory plan, such as limiting prescribing to certain physicians or medical centers that have
undergone specialized training, limiting treatment to patients who meet certain safe-use criteria and requiring treated patients to enroll in a registry. If we
receive marketing approval for Aramchol, physicians may nevertheless prescribe Aramchol to their patients in a manner that is inconsistent with the approved
labeling, which is commonly known as “off label” use. If we are found to have promoted our products for such “off label” uses, we may become subject to
significant liability under a variety of statutory theories typically alleged by U.S. regulatory authorities. In particular, the U.S. federal government has levied
large civil and criminal fines against companies for alleged improper promotion, has enjoined several companies from engaging in off-label promotion, and
has requested that companies enter into consent decrees or permanent injunctions under which specified promotional conduct is changed or curtailed.
We may be subject to extensive environmental, health and safety, and other laws and regulations in multiple jurisdictions.
Our business involves the controlled use, through our service providers, of hazardous materials, various biological compounds and chemicals, and as
such, we, our agents and our service providers may be subject to various environmental, health and safety laws and regulations, including those governing air
emissions, water and wastewater discharges, noise emissions, the use, management and disposal of hazardous, radioactive and biological materials and wastes
and the cleanup of contaminated sites. The risk of accidental contamination or injury from these materials cannot be eliminated. If an accident, spill or release
of any regulated chemicals or substances occurs, we could be held liable for resulting damages, including for investigation, remediation and monitoring of the
contamination, including natural resource damages, the costs of which could be substantial. We may incur substantial capital costs and operating expenses and
may be required to obtain consents to comply with any environmental and health laws or regulations and the terms and conditions of any permits required
pursuant to such laws and regulations, including costs incurred by us to install new or updated pollution control equipment for our service providers, modify
our operations or perform other corrective actions at our facilities or the facilities of our service providers. In addition, fines and penalties may be imposed on
us, our agents and/or our service providers for noncompliance with environmental, health and safety and other laws and regulations or for the failure to have,
or comply with the terms and conditions of, required environmental or other permits or consents.
20
We expect the healthcare industry to face increased limitations on reimbursement, rebates and other payments as a result of healthcare reform, which
could adversely affect third-party coverage of our products and how much or under what circumstances healthcare providers will prescribe or administer
our products.
In both the United States and other countries, sales of our products will depend in part upon the availability of reimbursement from third-party
payors, which include governmental authorities, managed care organizations and other private health insurers. Third-party payors are increasingly challenging
the price and examining the cost effectiveness of medical products and services.
Increasing expenditures for healthcare have been the subject of considerable public attention in the United States. Both private and government
entities are seeking ways to reduce or contain healthcare costs. Numerous proposals that would effect changes in the U.S. healthcare system have been
introduced or proposed in U.S. Congress, or Congress, and in some state legislatures, including reducing reimbursement for prescription products and
reducing the levels at which consumers and healthcare providers are reimbursed for purchases of pharmaceutical products.
In the United States, the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, or Modernization Act, changed the way
Medicare covers and pays for most pharmaceutical products in a number of ways. Medicare is the single largest third-party payment program and is
administered by the Centers for Medicare & Medicaid Services, or CMS. Medicare traditionally covered prescription drugs administered by physicians. The
Modernization Act introduced a new reimbursement methodology based on average sales prices for many of these drugs. The Modernization Act also
established a new competitive acquisition program for the purchase of Part B drugs. This program, when fully implemented, will likely reduce the prices of
these drugs. While the Medicare provisions of the Modernization Act apply only to drug benefits for Medicare beneficiaries, private payors often follow
Medicare coverage policy and payment limitations in setting their own reimbursement rates. Therefore, any reduction in reimbursement that results from
federal legislation or regulation may result in a similar reduction in payments from private payors.
Most notably, the Modernization Act also expanded coverage through a new Part D to include ordinary self-administered outpatient drugs. Medicare
part D though operates through private insurers, and these insurers negotiate prices with pharmacies and with manufacturers. Intense negotiations can result in
reduced revenues to manufacturers.
Increasing expenditures for healthcare have been the subject of considerable public attention in the United States. Both private and government
entities are seeking ways to reduce or contain healthcare costs. Numerous proposals that would effect changes in the U.S. healthcare system have been
introduced or proposed in U.S. Congress, or Congress, and in some state legislatures, including reducing reimbursement for prescription products and
reducing the levels at which consumers and healthcare providers are reimbursed for purchases of pharmaceutical products.
In March 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act and the Health Care and Education
Affordability Reconciliation Act of 2010, or the Affordable Care Act, a sweeping law intended to broaden access to health insurance, reduce or constrain the
growth of healthcare spending, enhance remedies against fraud and abuse, add new transparency requirements for healthcare and health insurance industries,
impose new taxes and fees on pharmaceutical and medical device manufacturers and impose additional health policy reforms. The Affordable Care Act
expanded manufacturers’ Medicaid rebate liability to include covered drugs dispensed to individuals who are enrolled in Medicaid managed care
organizations, increased the minimum rebate due for innovator drugs from 15.1% of average manufacturer price, or AMP, to 23.1% of AMP. The rebate on
innovator drugs is the greater of 23.1% of the AMP per unit or the difference between the AMP and the best price per unit and adjusted by the Consumer
Price Index-Urban (CPI-U) based on a launch date and current quarter AMP. The total rebate amount for innovator drugs is capped at 100.0% of AMP. The
Affordable Care Act and subsequent legislation also narrowed the definition of AMP. Furthermore, the Affordable Care Act imposes a significant annual,
nondeductible fee on companies that manufacture or import certain branded prescription drug products. Substantial new provisions affecting compliance were
also been enacted, which may affect our business practices with healthcare practitioners. Although it is too early to determine the effect of the Affordable
Care Act, it appears likely to continue to put pressure on pharmaceutical pricing, especially under the Medicare and Medicaid programs, and may also
increase our regulatory burdens and operating costs.
21
On January 20, 2016, President Donald J. Trump was inaugurated as the President of the United States. President Trump has stated that he intends to
“repeal and replace” the Affordable Care Act, and Congress has taken initial steps to repeal the law. We cannot predict the impact of the change in
administration on the Affordable Care Act and the subsequent effect on the pharmaceutical industry at this time.
In addition, other legislative changes have been proposed and adopted since the Affordable Care Act was enacted. In August 2011, President Obama
signed into law the Budget Control Act of 2011, which, among other things, created the Joint Select Committee on Deficit Reduction to recommend to
Congress proposals in spending reductions. The Joint Select Committee did not achieve a targeted deficit reduction of an amount greater than $1.2 trillion for
the years 2013 through 2021, triggering the legislation’s automatic reduction to several government programs. This includes aggregate reductions to Medicare
payments to healthcare providers of up to 2.0% per fiscal year, starting in 2013. In January 2013, President Obama signed into law the American Taxpayer
Relief Act of 2012, which, among other things, reduced Medicare payments to several categories of healthcare providers and increased the statute of
limitations period for the government to recover overpayments to providers from three to five years. If we ever obtain regulatory approval and
commercialization of Aramchol, these laws may result in additional reductions in Medicare and other healthcare funding, which could have a material adverse
effect on our customers and accordingly, our financial operations. Legislative and regulatory proposals have been made to expand post-approval requirements
and restrict sales and promotional activities for pharmaceutical products. We cannot be sure whether additional legislative changes will be enacted, or whether
the FDA regulations, guidance or interpretations will be changed, or what the impact of such changes on the marketing approvals of Aramchol may be.
Further, the Deficit Reduction Act of 2010, directed CMS to contract a vendor to determine “retail survey prices for covered outpatient drugs that represent a
nationwide average of consumer purchase prices for such drugs, net of all discounts and rebates (to the extent any information with respect to such discounts
and rebates is available).” This survey information can be used to determine the National Average Drug Acquisition Cost, or NADAC. Some states have
indicated that they will reimburse based on the NADAC and this can result in further reductions in the prices paid for various outpatient drugs.
Although we cannot predict the full effect on our business of the implementation of existing legislation or the enactment of additional legislation
pursuant to healthcare and other legislative reform, we believe that legislation or regulations that would reduce reimbursement for, or restrict coverage of, our
products could adversely affect how much or under what circumstances healthcare providers will prescribe or administer our products. This could materially
and adversely affect our business by reducing our ability to generate revenue, raise capital, obtain additional collaborators and market our products. In
addition, we believe the increasing emphasis on managed care in the United States has and will continue to put pressure on the price and usage of
pharmaceutical products, which may adversely impact product sales.
It will be difficult for us to profitably sell Aramchol if reimbursement for the product is limited by government authorities and third-party payor policies.
In addition to any healthcare reform measures that may affect reimbursement, the market acceptance and sales of Aramchol will depend on the
reimbursement policies of government authorities and third-party payors. It will be difficult for us to profitably sell Aramchol if reimbursement for the
product is limited by government authorities or third-party payors. Government authorities and third-party payors, such as private health insurers and health
maintenance organizations, decide which medications they will pay for and establish reimbursement levels. A primary trend in the U.S. healthcare industry
and elsewhere is cost containment. Government authorities and these third-party payors have attempted to control costs by limiting coverage and the amount
of reimbursement for particular medications. We cannot be sure that coverage or reimbursement will be available for Aramchol and, if coverage and
reimbursement are available, of the extent of coverage and the level of reimbursement. Reimbursement may affect the demand for, or the price of, any
product for which we obtain marketing approval. In addition, third-party payors are likely to impose strict requirements for reimbursement in order to limit
off-label use of a higher priced drug. Reimbursement by a third-party payor may depend upon a number of factors including the third-party payor’s
determination that use of a product is:
•
•
•
a covered benefit under its health plan;
safe, effective and medically necessary;
appropriate for the specific patient;
22
•
•
cost-effective; and
neither experimental nor investigational.
Obtaining coverage and reimbursement approval for a product from a government or other third-party payor is a time-consuming and costly process
that could require us to provide supporting scientific, clinical and cost effectiveness data for the use of our products to the payor. We may not be able to
provide data sufficient to gain acceptance with respect to coverage and reimbursement. We cannot be sure that coverage or adequate reimbursement will be
available for our future products. Also, we cannot be sure that reimbursement amounts will not reduce the demand for, or the price of, our future products. If
reimbursement is not available, or is available only to limited levels, we may not be able to commercialize our product candidate, or any future product
candidates, profitably, or at all, even if approved. In addition, if physicians, government agencies and other third-party payors do not accept the use or efficacy
of Aramchol, we will not be able to generate significant revenue, if any.
Governments outside the United States tend to impose strict price controls, which may adversely affect our revenues, if any.
In some countries, particularly the countries of the EU, the pricing of prescription pharmaceuticals is subject to governmental control. In these
countries, pricing negotiations with governmental authorities can take considerable time after the receipt of marketing approval for a product. To obtain
reimbursement or pricing approval in some countries, we may be required to conduct a clinical trial that compares the cost-effectiveness of our product
candidate to other available therapies. If reimbursement of our products is unavailable or limited in scope or amount, or if pricing is set at unsatisfactory
levels, our business could be harmed, possibly materially.
We are subject to federal anti-kickback laws and regulations. Our failure to comply with these laws and regulations could have adverse consequences to
us.
There are extensive U.S. federal and state laws and regulations prohibiting fraud and abuse in the healthcare industry that can result in significant
criminal and civil penalties. These federal laws include: The anti-kickback statute, which prohibits certain business practices and relationships, including the
payment or receipt of remuneration for the referral of patients whose care will be paid by Medicare or other federal healthcare programs; the physician self-
referral prohibition, commonly referred to as the Stark Law; the anti-inducement law, which prohibits providers from offering anything to a Medicare or
Medicaid beneficiary to induce that beneficiary to use items or services covered by either program; the False Claims Act, which prohibits any person from
knowingly presenting or causing to be presented false or fraudulent claims for payment by the federal government, including the Medicare and Medicaid
programs; and the Civil Monetary Penalties Law, which authorizes the U.S. Department of Health and Human Services to impose civil penalties
administratively for fraudulent or abusive acts. In addition, the Affordable Care Act requires drug manufacturers to report to the government any payments to
physicians and certain hospitals for consulting services and the like.
Sanctions for violating these federal laws include criminal and civil penalties that range from punitive sanctions, damage assessments, monetary
penalties, imprisonment, denial of Medicare and Medicaid payments or exclusion from the Medicare and Medicaid programs, or both, and debarment. As
federal and state budget pressures continue, federal and state administrative agencies may also continue to escalate investigation and enforcement efforts to
root out waste and to control fraud and abuse in governmental healthcare programs. Private enforcement of healthcare fraud has also increased, due in large
part to amendments to the civil False Claims Act in 1986 and again in 2009 and 2010 that were designed to encourage private persons to sue on behalf of the
government. A violation of any of these federal and state fraud and abuse laws and regulations could have a material adverse effect on our liquidity and
financial condition. An investigation into the use by physicians of any of our products, once commercialized, may dissuade physicians from either purchasing
or using them, and could have a material adverse effect on our ability to commercialize those products.
23
If we or our manufacturers fail to comply with manufacturing regulations, our financial results and financial condition could be adversely affected.
Before an NDA is approved, and before we begin the commercial manufacture of Aramchol, contract manufacturers must register with FDA or
foreign regulators undergo regulatory inspection of their manufacturing facilities, processes and quality systems. In addition, pharmaceutical manufacturing
facilities are subject to periodic inspection by the FDA and foreign regulatory authorities after product approval. Due to the complexity of the processes used
to manufacture pharmaceutical products and product candidates, any potential third-party manufacturer may be unable to meet local, federal, or international
regulatory requirements either at the outset or on an ongoing basis, in a cost effective manner, if at all.
We do not intend to engage in the manufacture of our products other than for non-clinical and clinical studies, but we or our materials suppliers may
face manufacturing or quality control problems causing product production and shipment delays or a situation where we or the supplier may not be able to
maintain compliance with the FDA’s or foreign regulators’ requirements necessary to continue manufacturing our product candidate. Drug manufacturers are
subject to ongoing periodic unannounced inspections by the FDA and corresponding foreign regulators to ensure continuing compliance with applicable
requirements. Any failure to comply with FDA or foreign regulatory requirements could adversely affect our clinical research activities and our ability to
develop and market our product candidate and any future product candidates.
If a third-party manufacturer with whom we contract is unable to comply with manufacturing requirements, we may be subject to fines,
unanticipated compliance expenses, recall or seizure of our products, total or partial suspension of production and/or enforcement actions, including
injunctions, and criminal or civil prosecution. These possible sanctions could adversely affect our financial results and financial condition.
Our market is subject to intense competition. If we are unable to compete effectively, Aramchol or any other potential product candidate that we develop
may be rendered suboptimal, noncompetitive or obsolete.
There are a number of products in development for NASH, many of which are being developed by pharmaceutical companies that are far larger than
us, with significantly greater resources and more experience than us in all aspects of drug development and commercialization. Further, our industry is highly
competitive and subject to rapid and significant technological change. Our potential competitors include large, fully-integrated pharmaceutical and
biotechnology companies, specialty pharmaceutical and generic drug companies, academic institutions, government agencies and research institutions. All of
these competitors currently engage in, have engaged in or may engage in the future in the development, manufacturing, marketing and commercialization of
new pharmaceuticals, some of which may compete with Aramchol or other product candidates. Smaller or early stage companies may also prove to be
significant competitors, particularly through collaborative arrangements with large, established companies. These companies may have products in
development that are superior to Aramchol. Key competitive factors affecting the commercial success of Aramchol and any other product candidates that we
develop are likely to be efficacy, time of onset, safety and tolerability profile, reliability, convenience of dosing, price and reimbursement.
Many of our potential competitors have substantially greater financial, technical and human resources than we do and significantly greater
experience in the discovery and development of drug candidates, obtaining FDA and other regulatory approvals of products and the commercialization of
those products. Accordingly, our competitors may be more successful than us in obtaining FDA and other marketing approvals for drugs and achieving
widespread market acceptance. Our competitors’ drugs may be more effective, or more effectively marketed and sold, than any drug we may commercialize
and may render Aramchol or any other potential product candidates that we develop suboptimal, obsolete or non-competitive before we can recover the
expenses of developing and commercializing the product. We anticipate that we will face intense and increasing competition as new drugs enter the market
and advanced technologies become available. Finally, the development of new treatment methods for the diseases we are targeting could render Aramchol, or
any other product candidate that we develop, non-competitive or obsolete. If we cannot successfully compete with new or existing products, our marketing
and sales will suffer and we may never be profitable.
Our competitors currently include companies with marketed products and/or advanced clinical programs. The majority of our competitors include,
but are not limited to, Intercept Pharmaceuticals, Inc., Genfit S.A., Gilead Sciences, Inc., Allergan, Plc., Shire, Plc., and Novartis, among others. See also
“Item 4. Information on the Company—Competition.” Moreover, several additional companies have reported the commencement of research projects and
proof-of-concept trials related to NASH, including those mentioned in the preceding sentence.
24
We face potential product and other liability exposure, and, if claims are brought against us, we may incur substantial liability.
Our products and product candidates could cause adverse events. These adverse events may not be observed in clinical trials, but may nonetheless
occur in the future. If any of these adverse events occur, they may render our product candidates ineffective or harmful in some patients, and our sales would
suffer, materially adversely affecting our business, financial conditions and results of operations.
In addition, potential adverse events caused by our product candidates, or products, could lead to product liability claims. Product liability claims
might be brought against us by consumers, healthcare providers or others coming into contact with our products. If we cannot successfully defend ourselves
against product liability claims, we could incur substantial liabilities. In addition, regardless of merit or eventual outcome, product liability claims may result
in, among other things:
·
·
·
·
·
·
·
·
·
decreased demand for Aramchol or any other product candidate for which we obtain marketing approval;
impairment of our business reputation and exposure to adverse publicity;
increased warnings on product labels or other regulatory actions;
withdrawal of clinical trial participants;
costs of related litigation;
distraction of management’s attention from our primary business;
substantial monetary awards to patients or other claimants;
loss of revenue; and
the inability to successfully commercialize Aramchol or any other product candidate, for which we obtain marketing approval.
No serious adverse events related to the study drug have been reported in any of our completed clinical studies, in which subjects have been
administered doses up to 900 mg, at doses up to 600 mg administered once-daily for up to ten days and at doses up to 300 mg administered once-daily for up
to three months. Several non-serious adverse events were reported in five completed and fully analyzed clinical trials. Those five studies enrolled a combined
total of 231 patients.
In our Phase IA clinical trial we enrolled 17 healthy volunteers. A total of 45 adverse events were reported in 13 subjects. All adverse events were
mild or moderate and transient and resolved without sequelae. There were no serious adverse events, deaths or other significant adverse events observed in
this study.
In our Phase IB placebo-controlled clinical trial with 25 healthy and mildly overweight male volunteers a total of 68 adverse events were reported by
80% of the subjects (placebo 89%; Aramchol 30mg 67%; Aramchol 300 mg 86%). All adverse events were mild or moderate and resolved without sequelae.
There were no serious adverse events, deaths or other significant adverse events.
We completed a pharmacokinetic, or PK, and food effect study in 66 healthy male volunteers consisting of three parts. Overall, over the three parts
of the study, the vast majority of adverse events were mild and determined to be unrelated to Aramchol and all of the adverse events were transient and gave
no indication of target organ toxicity. No serious adverse events or deaths occurred during the study. No clinically significant abnormalities related to any
Aramchol dose were noted in electrocardiograms, or ECGs, laboratory results, vital signs or physical examinations.
25
In our Phase IIA placebo-controlled trial with 60 subjects with steatosis due to NAFLD or NASH. A similar proportion of patients from each
treatment group reported adverse events (placebo 55%; Aramchol 100mg 40%, Aramchol 300mg 45%). Most adverse events were mild and transient. None
of the adverse events reported in the Aramchol groups were considered related to the investigational drug. Three adverse events were initially considered to
be related to the study drug; however, after un-blinding it turned out that they occurred in the placebo group. In addition, one serious adverse events (acute
appendicitis) was reported in the placebo group. There were no deaths or other significant adverse events reported in this study.
In 2016, we performed a pharmacokinetic study involving 64 Chinese subjects (the “Chinese PK Study”) who are domiciled in the United States,
consisting of two parts. No safety signals were identified in Chinese PK Study and we deemed no changes are required in the enrollment of Chinese patients
into the ARREST Study.
If we are unable to obtain adequate insurance with respect to our clinical trials against and from any losses or claims from third parties, our financial
condition could be adversely affected in the event of uninsured or inadequately insured loss or damage. We may not be able to obtain insurance policies on
terms affordable to us that would adequately cover loss or claims by third parties. To the extent our business suffers any losses or claims by third parties,
which are not covered, or adequately covered, by insurance, our financial condition may be materially adversely affected.
If product liability lawsuits are successfully brought against us, our insurance may be inadequate.
We have obtained insurance coverage for our clinical trials in accordance with market standards and in compliance with applicable Israeli law.
However, our insurance coverage may not be sufficient to reimburse us for any expenses or losses we may suffer. Moreover, insurance coverage is becoming
increasingly expensive, and, in the future, we may not be able to maintain insurance coverage at a reasonable cost or in sufficient amounts to protect us
against losses due to liability. If and when we obtain marketing approval for Aramchol, or any other product candidate, we intend to expand our insurance
coverage to include the sale of commercial products; however, we may be unable to obtain this product liability insurance on commercially reasonable terms.
On occasion, large judgments have been awarded in class action lawsuits based on drugs that had unanticipated side effects. The cost of any product liability
litigation or other proceedings, even if resolved in our favor, could be substantial. A successful product liability claim, or series of claims, brought against us
could cause our share price to decline and, if judgments exceed our insurance coverage, could decrease our cash and adversely affect our business.
The product liability insurance we will need to obtain in connection with the commercial sales of our product candidates, if and when they receive
regulatory approval, may be unavailable in meaningful amounts or at a reasonable cost. If we are the subject of a successful product liability claim that
exceeds the limits of any insurance coverage we obtain, we would incur substantial charges that would adversely affect our earnings and require the
commitment of capital resources that might otherwise be available for the development and commercial launch of our product programs.
We manage our business through a small number of senior executive officers. We depend on them even more than similarly- situated companies.
Because of the specialized scientific and managerial nature of our business, we rely heavily on our ability to recruit, attract, retain, manage and
motivate qualified senior executive officers with adequate operational, scientific and technical experience. The loss of the services of our senior executive
officers, including our President and Chief Executive Officer, Chief Medical Officer, and Chief Scientific Officer, or the inability to hire or retain experienced
management personnel, could adversely affect our ability to execute our business plan and harm our operating results. In particular, the loss of one or more of
our senior executive officers could be detrimental to us if we cannot recruit suitable replacements in a timely manner.
We do not currently carry “key person” insurance on the lives of members of senior management. The competition for qualified personnel in the
pharmaceutical field is intense. Due to this intense competition, we may be unable to attract and retain qualified personnel necessary for the development of
our business or to recruit suitable replacement personnel. Additionally, our ability to effectively recruit and retain qualified officers and directors could also be
adversely affected if we experience difficulty in obtaining adequate directors’ and officers’ liability insurance. We may be unable to maintain sufficient
insurance as a public company to cover liability claims made against our officers and directors. If we are unable to adequately insure our officers and
directors, we may not be able to retain or recruit qualified officers and directors to manage the Company.
26
Failure to build our finance infrastructure and improve our accounting systems and controls could impair our ability to comply with the financial
reporting and internal control requirements for publicly traded companies.
As a public company, we operate in an increasingly challenging regulatory environment which requires us to comply with the Sarbanes-Oxley Act of
2002, or the Sarbanes-Oxley Act, and the related rules and regulations of the SEC and securities exchanges, expanded disclosures, accelerated reporting
requirements and more complex accounting rules. Company responsibilities required by the Sarbanes-Oxley Act include establishing corporate oversight and
adequate internal control over financial reporting and disclosure controls and procedures. Effective internal controls are necessary for us to produce reliable
financial reports and are important to help prevent financial fraud. However, our independent registered public accounting firm will not be required to attest to
the effectiveness of our internal control over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act, or Section 404, until the date we are no
longer an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or JOBS Act, because we are taking advantage of the
exemptions contained in the JOBS Act. We will remain an emerging growth company until, subject to certain conditions, the earlier of (1) the last day of the
fiscal year (a) following the fifth anniversary of the completion of our initial public offering, (b) in which we have total annual gross revenue of at least $1.0
billion, or (c) in which we are deemed to be a large accelerated filer, which means the market value of our ordinary shares that is held by non-affiliates
exceeds $700.0 million as of the prior June 30, and (2) the date on which we have issued more than $1.0 billion in non-convertible debt during the prior three-
year period.
To date, our independent public accountant has never conducted a review of our internal control for the purpose of providing the reports required by
these rules. During the course of our review and testing, we may identify deficiencies and be unable to remediate them before we must provide the required
reports. Furthermore, if we have a material weakness in our internal controls over financial reporting, we may not detect errors on a timely basis and our
financial statements may be materially misstated. We or our independent registered public accounting firm may not be able to conclude on an ongoing basis
that we have effective internal control over financial reporting, which could harm our operating results, cause investors to lose confidence in our reported
financial information and cause the trading price of our stock to fall.
To build our finance infrastructure, we may need to improve our accounting systems, disclosure policies, procedures and controls. If we are
unsuccessful in building an appropriate accounting infrastructure, we may not be able to prepare and disclose, in a timely manner, our financial statements
and other required disclosures, or comply with existing or new reporting requirements. Any failure to report our financial results on an accurate and timely
basis could result in sanctions, lawsuits, delisting of our shares from the Nasdaq Capital Market or other adverse consequences that would materially harm our
business. If we cannot provide reliable financial reports or prevent fraud, our business and results of operations could be harmed and investors could lose
confidence in our reported financial information.
We will need to significantly increase the size of our organization, and we may experience difficulties in managing growth.
We may experience rapid and substantial growth in order to achieve our operating plans, which will place a strain on our human and capital
resources. Successful implementation of our business plan will require management of growth, which will result in an increase in the level of responsibility
for management personnel. We currently have a relatively small number of employees and, in the event we continue the clinical development of our lead
product into Phase III pivotal study independently, we will need to substantially increase our operations, including expanding our employee base of
managerial, operational, clinical and financial personnel. Any future growth will impose significant added responsibilities on members of management,
including the need to identify, recruit, maintain and integrate additional employees. To that end, we must be able to, among other things:
· manage our clinical trials and the regulatory process effectively;
·
develop our administrative, accounting and management information systems and controls;
27
·
·
hire and train additional qualified personnel; and
integrate current and additional management, administrative, financial and sales and marketing personnel.
If we are unable to establish, scale-up and implement improvements to our control systems in an efficient or timely manner, or if we encounter
deficiencies in existing systems and controls, investors may choose not to invest in us, which could cause our share price to decline and negatively impact our
ability to successfully commercialize our product candidate and future product candidates.
Failure to attract and retain sufficient numbers of talented employees will further strain our human resources and could impede our growth or result
in ineffective growth. If we are unable to manage our growth effectively, our losses could materially increase and it will have a material adverse effect on our
business, results of operations and financial condition.
Our business, including our ability to raise capital, may be affected by macroeconomic conditions.
A deterioration in global economic conditions and uncertainties may have an adverse effect on our business. For instance, interest rates, the liquidity
of the credit markets and the volatility of the capital markets could also affect the value of our investments, if any, and our ability to liquidate such
investments in order to fund our operations. Interest rates and the ability to access credit markets could also adversely affect the ability of patients and
distributors to purchase, pay for and effectively distribute our products.
In addition, we rely and intend to rely on third-parties, including our clinical research organizations, third-party manufacturers and second source
suppliers, and certain other important vendors and consultants. As a result of volatile and unpredictable global economic situations, there may be a disruption
or delay in the performance of our third-party contractors and suppliers. If such third-parties are unable to satisfy their contractual commitments to us, our
business could be severely adversely affected.
The Israeli Ministry of Health permit to conduct multiple biopsies under restricted conditions
On March 9, 2015, we announced that we had begun the enrollment stage of our Phase IIB ARREST Study of Aramchol in 248 biopsy-diagnosed
OD patients with NASH. The primary endpoint of the study is a significant reduction of liver fat, as measured by magnetic resonance spectroscopy, or MRS,
which is a noninvasive and sensitive method for quantification of the amount of fat in the liver. The main secondary endpoints of the ARREST Study include
fibrosis improvement and resolution of NASH in biopsies, which can be assessed only at the completion of the study and by repeated liver biopsy. We are
conducting a portion of our ARREST Study in Israel. Although the Israeli Ministry of Health has granted us approval to conduct our ARREST Study
including patients that underwent a liver biopsy independently and previously to the study (as warranted by their medical condition), it has taken exception to
the necessity of conducting a second biopsy at the end of the trial period, as specified by the trial protocol. As this position is inconsistent with the already
established guidance by the FDA and the EMA, it was unexpected. After conducting a close dialogue with the Israeli Ministry of Health, in September 2016,
the Israeli Ministry of health released a general guidance, which allowed performance of biopsies as part of clinical trials conducted in Israel subject to
compliance with met criteria. However, we have defined in our statistical analysis plan (SAP) an analysis set for liver biopsy data which will not include
Israeli participants that are lacking the pair of biopsies due to regulatory limitation.
Additional clinical trials may divert a significant amount of Company resources and may ultimately be unsuccessful.
In 2016, we announced we entered into several agreements to expand our clinical operations for Aramchol to multiple other indications in order to
expand our pipeline, commercial potential and ultimately de-risk the Company for the success of any one given trial. However, to date the initiation of the
Vitamin D Study (as defined below) and the microbiome Research (as defined below) have been postponed. There can be no assurance that these studies will
be successful.
28
Risks Related to Our Reliance on Third Parties
We have no manufacturing capacity and anticipate reliance on third-party manufacturers for our products.
We do not currently operate manufacturing facilities for the production of Aramchol or its API. We still have not, and may never, develop facilities
for the manufacture of product candidates or products for clinical trials or commercial purposes. We rely, and for the foreseeable future, will continue to rely,
on third-party manufacturers to produce bulk drug products required for our clinical trials. We plan to initially rely upon contract manufacturers and,
potentially, collaboration partners, to manufacture commercial quantities of our product candidates, if and when approved for marketing by the applicable
regulatory authorities. Our contract manufacturers have not completed process validation for Aramchol or the Aramchol API manufacturing processes. If our
contract manufacturers and their facilities, as applicable, are not approved by the FDA, or other applicable regulatory authorities, our commercial supply of
the drug substance will be significantly delayed and may result in significant additional costs. We purchase finished Aramchol from a third-party under a
clinical supply agreement. If we need to identify an additional finished product manufacturer, we would not be able to do so without significant delay and
likely significant additional cost.
A failure by our contract manufacturer to achieve and maintain high manufacturing standards, in accordance with applicable good manufacturing
practices (GMPs) and other applicable regulatory requirements could result in patient injury or death, product shortages, product recalls or withdrawals,
delays or failures in product testing or delivery, cost overruns or other problems that could seriously harm our business. Contract manufacturers often
encounter difficulties involving production yields, quality control and quality assurance, as well as shortages of qualified personnel.
Our existing manufacturers and any future contract manufacturers may not perform as agreed or may not remain in the contract manufacturing
business. In the event of a natural disaster, business failure, strike or other difficulty, we may be unable to replace a third-party manufacturer in a timely
manner and the production of Aramchol would be interrupted, resulting in delays and additional costs.
We intend to rely primarily on third parties to market and sell Aramchol.
We have no sales or distribution capabilities. To the extent we rely on third parties to commercialize Aramchol, if marketing approval is obtained, we
may receive less revenue than if we commercialize Aramchol ourselves. In addition, we would have less control over the sales efforts of any third parties
involved in our commercialization efforts. In the event we are unable to collaborate with a third-party marketing and sales organization to commercialize
Aramchol, particularly for broader patient populations, our ability to generate revenue will be limited.
Although we may ultimately develop a marketing and sales force with technical expertise and supporting distribution capabilities in the longer term,
we do not currently intend to do so and, as such, we will be unable to market our product candidate directly in the near future. To promote any of our potential
products through third parties, we will have to locate acceptable third parties for these functions and enter into agreements with them on acceptable terms, and
we may not be able to do so. Any third-party arrangements we are able to enter into may result in lower revenues than we could achieve by directly marketing
and selling our potential products. In addition, to the extent that we depend on third parties for marketing and distribution, any revenues we receive will
depend upon the efforts of such third parties, as well as the terms of our agreements with such third parties, which cannot be predicted in most cases at this
time. As a result, we might not be able to market and sell our products in the United States or overseas, which would have a material adverse effect on us.
Any collaboration arrangements that we may enter into in the future may not be successful, which could adversely affect our ability to develop and
commercialize our current and potential future product candidates.
We intend to seek collaboration arrangements with pharmaceutical or biotechnology companies for the continued development and
commercialization of our current and potential future product candidates. We will face, to the extent that we decide to enter into collaboration agreements,
significant competition in seeking appropriate collaborators. Moreover, collaboration arrangements are complex and time consuming to negotiate, document
and implement. We may not be successful in our efforts to establish and implement collaborations or other alternative arrangements. The terms of any
collaborations or other arrangements that we may establish may not be favorable to us.
29
Any future collaborations that we enter into may not be successful. The success of our collaboration arrangements will depend heavily on the efforts
and activities of our collaborators. Collaborators generally have significant discretion in determining the efforts and resources that they will apply to these
collaborations. Disagreements between parties to a collaboration arrangement regarding clinical development and commercialization matters can lead to
delays in the development process or commercializing the applicable product candidate and, in some cases, termination of the collaboration arrangement.
These disagreements can be difficult to resolve if neither of the parties has final decision making authority. Moreover, collaborations with pharmaceutical or
biotechnology companies and other third parties are often terminated or allowed to expire by the other party. Any lack of effort or ability by our collaborators
or any such disagreement, termination or expiration could adversely affect us financially and could harm our business reputation.
We depend on third parties to conduct our clinical trials.
We rely on third parties, such as contract research organizations, medical institutions, clinical investigators and contract laboratories to oversee most
of the operations of our clinical trials and to perform data collection and analysis. As a result, we may face additional delays outside of our control if these
parties do not perform their obligations in a timely fashion or in accordance with regulatory requirements. If these third parties do not successfully carry out
their contractual duties or obligations and meet expected deadlines, if they need to be replaced, or if the quality or accuracy of the clinical data they obtain is
compromised due to the failure to adhere to our clinical protocols or for other reasons, our financial results and the commercial prospects for Aramchol or any
other potential product candidates could be harmed, our costs could increase and our ability to obtain regulatory approval and commence product sales could
be delayed.
Risks Related to Our Intellectual Property
The failure to obtain or maintain patents, licensing agreements and other intellectual property rights that are sufficiently broad and protective could
impact our ability to compete effectively.
To compete effectively, we must develop and maintain a proprietary position with regard to our own technologies, intellectual property, licensing
agreements, product candidates and business. Legal standards relating to the validity and scope of claims in the biotechnology and biopharmaceutical fields
are still evolving. We cannot predict the scope and extent of patent protection for Aramchol because the patent positions of pharmaceutical products are
complex and uncertain. Therefore, the degree of future protection for our proprietary rights in our core technologies and any product candidates or products
that might be developed using these technologies is also uncertain. The risks and uncertainties that we face with respect to our patents and other proprietary
rights include, but are not limited to, the following:
·
·
·
·
·
·
·
·
while the patents we own have been issued, pending patent applications we have filed may not result in issued patents or may take longer
than we expect to result in issued patents;
we may be subject to interference or reexamination proceedings in the U.S.;
we may be subject to opposition proceedings in certain foreign countries;
any patents that are issued may not provide meaningful protection for any significant period of time, if at all;
any issued patents may not be broad or strong enough to prevent competition from other products including identical or similar products;
we may not be able to develop additional proprietary technologies that are patentable;
there may be prior art of which we are not aware that may affect the validity or enforceability of a patent claim;
there may be other patents or pending patent applications existing in the patent landscape that will affect our freedom to operate for
Aramchol;
30
·
·
·
·
·
·
·
·
other companies may challenge and invalidate patents licensed or issued to us or our customers;
a court could determine that a competitor’s technology or product does not infringe our patents;
other companies may independently develop similar or alternative technologies, or duplicate our technologies;
other companies may design around technologies we have licensed or developed;
if we are not awarded patents or if issued patents expire or are declared invalid or not infringed, there may be no protections against
competitors making generic equivalents;
enforcement of patents is complex, uncertain and expensive, and our patents may be found invalid or enforceable;
our patents could irretrievably lapse due to failure to pay fees or otherwise comply with regulations, or could be subject to compulsory
licensing; and
if we encounter delays in our development or clinical trials, the period of time during which we could market our products under patent
protection would be reduced.
We cannot be certain that patents will be issued as a result of any of our pending applications, and we cannot be certain that any of our issued
patents, whether issued pursuant to our pending applications or licensed from third parties, will give us adequate protection from competing products. For
example, issued patents may be circumvented or challenged, declared invalid or unenforceable, or narrowed in scope. In addition, because publication of
discoveries in the scientific or patent literature often lags behind actual discoveries, we cannot be certain that we were the first to make our inventions or to
file patent applications covering those inventions. If any of our composition of matter patents, or pending applications, was subject to a successful challenge
or failed to issue, our business and competitive advantage could be significantly affected. Our current patents will expire or they may otherwise cease to
provide meaningful competitive advantage, and we may be unable to adequately develop new technologies and obtain future patent protection to preserve our
competitive advantage or avoid adverse effects on our business.
The composition of matter patents pertaining to Aramchol will expire on March 25, 2019 worldwide outside of Israel and on April 8, 2018 in Israel.
We do not expect that we will be able to submit an NDA seeking approval of Aramchol prior to the composition of matter patents’ expiration date. However,
because Aramchol is regarded as a new chemical entity, or NCE, following approval of an NDA, if we are the first applicant to obtain NDA approval, we may
be entitled to up to five years of patent term extension in the United States with respect to such NCE, and provided that the use patent with respect to
Aramchol in the treatment of fatty liver will still be in force when the approval of the NDA is received from the FDA. The non-extended patent term for such
use patent, is due to expire on April 15, 2022 worldwide and on April 17, 2021 in Israel. The U.S. patent was extended by a patent term adjustment of 567
days, resulting in an effective expiration date in the U.S. of November 3, 2023. Analogous mechanisms for protecting the interests of innovator drug
companies to compensate for regulatory review and other hurdles they must overcome, of varying duration, may be available in Europe and other foreign
jurisdictions. In addition, a term of data exclusivity of up to 5 years will be available for the first approved clinical use of this NCE in the U.S. and for longer
periods in other jurisdictions, if Aramchol receives regulatory approval. Although the Company believes that it may be able to protect its exclusivity in its
field of activity through such use patent portfolio and such period of exclusivity, the lack of composition of matter patent protection may diminish the
Company’s ability to maintain a proprietary position for its intended uses of Aramchol. Moreover, the Company cannot be certain that it will be the first
applicant to obtain an FDA approval for any indication of Aramchol and it cannot be certain that it will be entitled to NCE exclusivity. Such diminution of
Aramchol’s proprietary position could have a material adverse effect on our business, results of operation and financial condition.
Others may obtain issued patents that could prevent us from commercializing our product candidates or require us to obtain licenses requiring the
payment of significant fees or royalties in order to enable us to conduct our business. As to those patents that we have licensed, our rights depend on
maintaining our obligations to the licensor under the applicable license agreement, and we may be unable to do so.
31
In addition to patents and patent applications, we depend upon trade secrets and proprietary know-how to protect our proprietary technology. We
require our employees, consultants, advisors and collaborators to enter into confidentiality agreements that prohibit the disclosure of confidential information
to any other parties. We also require our employees and consultants to disclose and assign to us their ideas, developments, discoveries and inventions. These
agreements may not, however, provide adequate protection for our trade secrets, know-how or other proprietary information in the event of any unauthorized
use or disclosure.
Our potential development of Aramchol salts may not result in improved bioavailability compared to the existing form of Aramchol. Furthermore,
although we have submitted patent applications for our Aramchol salts in development, there is no assurance that we will receive any patents for them,
and even if we receive one or more patents for our Aramchol salts in development, they may be of little or no commercial value.
As part of our research and development studies, we have confirmed that several Aramchol salts have improved solubility as compared to the
existing form of Aramchol acid. In 2014, we submitted new patent applications to protect such salts. In addition, we intend to plan and conduct further
formulation development in order to test the possibility of using Aramchol salts as part of Aramchol life cycle management. Should we decide to develop the
formulations of Aramchol salts, we will need to conduct an appropriate bioequivalence study, or studies, of the biological equivalence of two proprietary
preparations of a drug.
If we commence animal PK studies and formulation development in order to test the bioavailability of the Aramchol salt compounds, the results
might not support the claims sought by us. Success in our earlier pre-formulation studies does not ensure that later studies will be successful, and the results
of later studies may not replicate the results of our prior pre-formation studies. Furthermore, either or both of the animal PK and formulation development
studies may fail to demonstrate that the Aramchol salts result in an improvement in solubility and bioavailability. Any such failure may cause us to abandon
the Aramchol salt compounds and may delay development of other product candidates. If the animal PK studies do not support our claims, the completion of
development of such potential product candidates may be significantly delayed or abandoned, which will significantly impair our ability to generate revenues
and will materially adversely affect our results of operations.
There can be no assurance that the U.S. Patent and Trademark Office, or the USPTO, will issue any patents based on the patent applications that we
submitted to protect our Aramchol salts, nor, should the USPTO issue any patents to us with respect to the Aramchol salts, that we will be provided with
adequate protection against potentially competitive products. Furthermore, if the USPTO issues us one or more patents for the Aramchol salts, there can be no
assurance that the issued patents will be of any commercial value, or that private parties or competitors will not successfully challenge these patents or
circumvent these patents in the United States or abroad. In the absence of adequate patent protection, our business may be adversely affected by competitors
who develop comparable technology or products.
We may not be able to enforce our intellectual property rights throughout the world. This risk is exacerbated for us because we expect Aramchol will be
manufactured and used in a number of foreign countries.
The laws of some foreign countries do not protect intellectual property rights to the same extent as the laws of the United States. Many companies
have encountered significant problems in protecting and defending intellectual property rights in certain foreign jurisdictions. This risk is exacerbated for us
because we expect Aramchol will be manufactured and used in a number of foreign countries.
The legal systems of some countries, particularly developing countries, do not favor the enforcement of patents and other intellectual property
protection, especially those relating to life sciences. This could make it difficult for us to stop the infringement of our other intellectual property rights. For
example, several foreign countries have compulsory licensing laws under which a patent owner must grant licenses to third parties. In addition, some
countries limit the enforceability of patents against third parties, including government agencies or government contractors. In these countries, patents may
provide limited or no benefit.
Although most jurisdictions in which the Company has applied for, intends to apply for, or has been issued patents have patent protection laws
similar to those of the United States, some of them do not. For example, the Company expects to do business in South America, Eurasia, China and Indochina
in the future and the countries in these regions may not provide the same or similar protection as that provided in the United States. Additionally, due to
uncertainty in patent protection law, the Company has not filed applications in many countries where significant markets exist, including South American
countries, Eurasian countries, African countries and Taiwan.
32
Proceedings to enforce our patent rights in foreign jurisdictions could result in substantial costs and divert our efforts and attention from other
aspects of our business. Accordingly, our efforts to protect our intellectual property rights in such countries may be inadequate. In addition, changes in the law
and legal decisions by courts in the United States and foreign countries may affect our ability to obtain adequate protection for our technology and the
enforcement of intellectual property.
We may be unable to protect the intellectual property rights of third parties from whom we may license certain of our intellectual property or with whom
we have entered into other strategic relationships, which could have a material adverse effect on our business, results of operations and financial
condition.
Certain of our intellectual property rights may be licensed from third parties, including universities and/or strategic partners. Such third parties may
determine not to or fail to protect the intellectual property rights that we license from them and we may be unable to defend such intellectual property rights
on our own or we may have to undertake costly litigation to defend the intellectual property rights of such third parties. There can be no assurances that we
will continue to have proprietary rights to any of the intellectual property that we license from such third parties or otherwise have the right to use through
similar strategic relationships. Any loss or limitations on use with respect to such intellectual property licensed from third parties or otherwise obtained from
third parties with whom we have entered into strategic relationships could have a material adverse effect on our business, results of operations and financial
condition.
We may infringe the intellectual property rights of others, which may prevent or delay our product development efforts and stop us from commercializing,
or increase the costs of commercializing, our products.
Our commercial success depends significantly on our ability to operate without infringing the patents and other intellectual property rights of third
parties. For example, there could be issued patents of which we are not aware that our products infringe. There also could be patents that we believe we do not
infringe, but that we may ultimately be found to infringe. Moreover, patent applications are in some cases maintained in secrecy until patents are issued. The
publication of discoveries in the scientific or patent literature frequently occurs substantially later than the date on which the underlying discoveries were
made and patent applications were filed. Because patents can take many years to issue, there may be currently pending applications of which we are unaware
that may later result in issued patents that our products infringe. For example, pending applications may exist that provide support or can be amended to
provide support for a claim that results in an issued patent that our product infringes.
Third parties may assert that we are employing their proprietary technology without authorization. If a court held that any third-party patents are
valid, enforceable and cover our products or their use, the holders of any of these patents may be able to block our ability to commercialize our product
candidates or products unless we obtained a license under the applicable patents, or until the patents expire. In addition to litigation proceedings which may
be filed against us, we may not be able to enter into licensing arrangements or make other arrangements at a reasonable cost or on reasonable terms. Any
inability to secure licenses or alternative technology could result in delays in the introduction of our products or lead to prohibition of the manufacture or sale
of products by us.
We may be unable to adequately prevent disclosure and unauthorized use of trade secrets and other proprietary information by third parties.
Our ability to obtain and maintain patent protection and trade secret protection for our intellectual property and proprietary technologies, our
products and their uses is important to our commercial success. We rely on a combination of patent, copyright, trademark and trade secret laws, non-
disclosure and confidentiality agreements, licenses, assignment of inventions agreements and other restrictions on disclosure and use to protect our
intellectual property rights.
33
We also rely on trade secrets to protect our proprietary know-how and technological advances, especially where we do not believe patent protection
is appropriate or obtainable. However, trade secrets are difficult to protect. We rely in part on confidentiality agreements with our employees, consultants,
outside scientific collaborators, sponsored researchers and other advisors to protect our trade secrets and other proprietary information. These agreements may
not effectively prevent disclosure of confidential information and may not provide an adequate remedy in the event of unauthorized disclosure of confidential
information. In addition, others may independently discover our trade secrets and proprietary information. Costly and time-consuming litigation could be
necessary to enforce and determine the scope of our proprietary rights. Failure to obtain or maintain trade secret protection could enable competitors to use
our proprietary information to develop products that compete with our product candidates or products or cause additional material adverse effects upon our
competitive business position.
We cannot be certain that the steps that we have taken will prevent the misappropriation or other violation of our confidential information and other
intellectual property, particularly in foreign countries in which laws may not protect our proprietary rights as fully as in the United States and other developed
economies. Moreover, if we lose any key personnel, we may not be able to prevent the unauthorized disclosure or use of our technical knowledge or other
trade secrets by those former employees. If we are unable to maintain the security of our proprietary technology, this could materially adversely affect our
competitive advantage, business and results of operations.
Under applicable U.S. and Israeli law, we may not be able to enforce covenants not to compete and therefore may be unable to prevent our competitors
from benefiting from the expertise of some of our former employees. In addition, employees may be entitled to seek compensation for their inventions
irrespective of their agreements with us, which in turn could impact our future profitability.
We generally enter into non-competition agreements with our employees and certain key consultants, or our employment and consulting agreements
contain non-competition provisions. These agreements, to the extent they are in place and in effect, prohibit our employees and certain key consultants, if they
cease working for us, from competing directly with us or working for our competitors or clients for a limited period of time. We may be unable to enforce
these agreements under the laws of the jurisdictions in which our employees work and it may be difficult for us to restrict our competitors from benefitting
from the expertise our former employees or consultants developed while working for us. For example, Israeli courts have required employers seeking to
enforce non-compete undertakings of a former employee to demonstrate that the competitive activities of the former employee will harm one of a limited
number of material interests of the employer which have been recognized by the courts, such as the secrecy of a company’s confidential commercial
information or the protection of its intellectual property. If we cannot demonstrate that such interests will be harmed, we may be unable to prevent our
competitors from benefiting from the expertise of our former employees or consultants and our ability to remain competitive may be diminished.
In addition, Chapter 8 to the Israeli Patents Law, 5727-1967, or the Patents Law, deals with inventions made in the course of an employee’s service
and during his or her term of employment, whether or not the invention is patentable, or service inventions. Section 134 of the Patents Law provides that if
there is no agreement that explicitly determines whether the employee is entitled to compensation for the service inventions and the extent and terms of such
compensation, such determination will be made by the Compensation and Rewards Committee, a statutory committee of the Israeli Patents Office. Although
our employees have agreed to assign to us service invention rights, we may face claims demanding remuneration in consideration for assigned inventions. As
a consequence of such claims, we could be required to pay additional remuneration or royalties to our current and/or former employees, or be forced to
litigate such claims, which could negatively affect our business.
Any lawsuits relating to infringement of intellectual property rights necessary to defend ourselves or enforce our rights will be costly and time consuming.
We may be required to initiate litigation to enforce our rights or defend our activities in response to alleged infringement of a third-party. In addition,
we may be sued by others who hold intellectual property rights and who claim that their rights are infringed by Aramchol or any of our future products or
product candidates. These lawsuits can be very time consuming and costly. There is a substantial amount of litigation involving patent and other intellectual
property rights in the biotechnology and pharmaceutical industries generally.
34
A third-party may claim that we are using inventions claimed by their patents and may go to court to stop us from engaging in our normal operations
and activities, such as research, development and the sale of any future products. Such lawsuits are expensive and would consume time and other resources.
There is a risk that such court will decide that we are infringing the third-party’s patents and will order us to stop the activities claimed by the patents,
redesign our products or processes to avoid infringement or obtain licenses, which may not be available on commercially reasonable terms. In addition, there
is a risk that a court will order us to pay the other party damages for infringement.
Moreover, there is no guarantee that any prevailing patent owner would offer us a license so that we could continue to engage in activities claimed
by the patent, or that such a license, if made available to us, could be acquired on commercially acceptable terms. In addition, third parties may, in the future,
assert other intellectual property infringement claims against us with respect to our product candidates, technologies or other matters.
In addition, our patents and patent applications could face other challenges, such as interference proceedings, opposition proceedings and re-
examination proceedings. Any of these challenges, if successful, could result in the invalidation of, or in a narrowing of the scope of, any of our patents and
patent applications subject to challenge. Any of these challenges, regardless of their success, would likely be time consuming and expensive to defend and
resolve and would divert our management’s time and attention.
Changes in patent law could diminish the value of patents in general, thereby impairing our ability to protect our products.
As is the case with other pharmaceutical companies, our success is heavily dependent on intellectual property, particularly patents. Obtaining and
enforcing patents in the biopharmaceutical industry involve both technological and legal complexity. Therefore, obtaining and enforcing pharmaceutical
patents is costly, time-consuming and inherently uncertain. In particular, the United States has recently enacted, and is currently implementing, wide-ranging
patent reform legislation. The United States Supreme Court has ruled on several patent cases in recent years, and could do so again in the future, either
narrowing the scope of patent protection available in certain circumstances or weakening the rights of patent owners in certain situations. In addition to
increasing uncertainty with regard to our ability to obtain patents in the future, this combination of events has created uncertainty with respect to the value of
patents, once obtained. Depending on decisions by applicable courts and legislatures in the countries in which we may pursue patent protection, including
those of the U.S. Congress, the federal courts and the USPTO, the laws and regulations governing patents and the interpretations of such laws could change in
unpredictable ways that would weaken our ability to obtain new patents or to enforce our existing patents and patents that we might obtain in the future.
Obtaining and maintaining our patent protection depends on compliance with various procedural, documentary, fee payment and other requirements
imposed by governmental patent agencies, and our patent protection could be reduced or eliminated for non-compliance with these requirements.
The USPTO and various foreign governmental patent agencies require compliance with a number of procedural, documentary, fee payment and other
provisions during the patent process. There are situations in which noncompliance can result in abandonment or lapse of a patent or patent application,
resulting in partial or complete loss of patent rights in the relevant jurisdiction. In such an event, competitors might be able to enter the market earlier than
would otherwise have been the case.
Risks Related to Ownership of Our Ordinary Shares
The market price of our ordinary shares is volatile and you may sustain a complete loss of your investment.
Since our initial public offering, the trading price of our ordinary shares has been extremely volatile and is likely to continue to be volatile. In recent
years, the trading price of our ordinary shares has performed poorly on both an absolute and relative basis. In addition, the trading volume is and has been
volatile and oftentimes relatively illiquid. The following factors, some of which are beyond our control, in addition to other risk factors described in this
section, may have a significant impact on the market price and trading volume of our ordinary shares:
35
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
delays in existing clinical trials due to an inability to enroll patients at the expected pace, among other factors;
inability to obtain the approvals necessary to commence further clinical trials;
unsatisfactory or inconclusive results of clinical trials;
termination of clinical trials;
adverse events in our ongoing clinical trials;
announcements of regulatory approval or the failure to obtain it, or specific label indications or patient populations for its use, or changes or
delays in the regulatory review process;
announcements of therapeutic innovations or new products by us or our competitors;
adverse actions taken by regulatory agencies with respect to our clinical trials, manufacturing supply chain or sales and marketing activities;
changes or developments in laws or regulations applicable to Aramchol;
any adverse changes to our relationship with manufacturers or suppliers;
any product liability actions or intellectual property infringement actions in which we may become involved;
announcements concerning our competitors or the pharmaceutical industry in general;
achievement of expected product sales and profitability or our failure to meet expectations;
our commencement of, or involvement in, litigation;
any major changes in our board of directors, or our Board, management or other key personnel;
legislation in the United States, Europe and other foreign countries relating to the sale or pricing of pharmaceuticals;
announcements by us of significant strategic partnerships, out-licensing, in-licensing, joint ventures, acquisitions or capital commitments;
expiration or terminations of licenses, research contracts or other collaboration agreements;
public concern as to the safety of drugs we, our licensees or others develop;
success of research and development projects;
variations in our and our competitors’ results of operations;
changes in earnings estimates, cash flow guidance, or recommendations by securities analysts;
developments by our licensees, if any; and
future issuances of ordinary shares or other securities.
These factors and any corresponding price fluctuations may materially and adversely affect the market price and trading volume of our ordinary
shares and result in substantial losses by our investors.
36
In addition, the stock market in general, and the Nasdaq Capital Market and the market for biotechnology companies in particular, have experienced
extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of our Company and that of small
companies. Broad market and industry factors may negatively affect the market price of our ordinary shares, regardless of our actual operating performance.
Further, a systemic decline in the financial markets and related factors beyond our control may cause our share price to decline rapidly and unexpectedly.
Price volatility of our ordinary shares might be worse if the trading volume of our ordinary shares is low. Following periods of market volatility or a material
decrease in the value of our common shares, shareholders may institute securities class action litigation. If we were involved in securities litigation, it could
have a substantial cost and divert resources and attention of management from our business, even if we are successful. Future sales of our ordinary shares
could also reduce the market price of such stock. Any adverse determination in litigation could also subject us to significant liabilities.
Moreover, the liquidity of our ordinary shares is limited, not only in terms of the number of shares that can be bought and sold at a given price, but
by delays in the timing of transactions and reduction in security analysts’ and the media’s coverage of us, if any. These factors may result in lower prices for
our ordinary shares than might otherwise be obtained and could also result in a larger spread between the bid and ask prices for our ordinary shares. In
addition, without a large float, our ordinary shares are less liquid than the stock of companies with broader public ownership and, as a result, the trading
prices of our ordinary shares are more volatile. In the absence of an active public trading market, an investor may be unable to liquidate its investment in our
ordinary shares. Trading of a relatively small volume of our ordinary shares may have a greater impact on the trading price of our stock than would be the
case if our public float were larger. We cannot predict the prices at which our ordinary shares will trade in the future.
Our ordinary shares are listed on the Nasdaq Capital Market. As such, we must meet the Nasdaq Capital Market’s continued listing requirements and
other Nasdaq rules, or we may risk delisting. Delisting could negatively affect the price of our ordinary shares, which could make it more difficult for us
to sell securities in a financing and for you to sell your ordinary shares.
Our ordinary shares are listed on the Nasdaq Capital Market. As such, we are required to meet the continued listing requirements of the Nasdaq
Capital Market and other Nasdaq rules, including those regarding director independence and independent committee requirements, minimum shareholders’
equity, minimum share price and certain other corporate governance requirements. In particular, we are required to maintain a minimum bid price for our
listed ordinary shares of $1.00 per share. If we do not meet these continued listing requirements, our ordinary shares could be delisted. Delisting of our
ordinary shares from the Nasdaq Capital Market would cause us to pursue eligibility for trading on other markets or exchanges, or on the pink sheets. In such
case, our shareholders’ ability to trade, or obtain quotations of the market value of, our ordinary shares would be severely limited because of lower trading
volumes and transaction delays. These factors could contribute to lower prices and larger spreads in the bid and ask prices for our securities. There can be no
assurance that our ordinary shares, if delisted from the Nasdaq Capital Market in the future, would be listed on a national securities exchange, a national
quotation service, the Over-The-Counter Markets or the pink sheets. Delisting from the Nasdaq Capital Market, or even the issuance of a notice of potential
delisting, would also result in negative publicity, make it more difficult for us to raise additional capital, adversely affect the market liquidity of our ordinary
shares, reduce security analysts’ coverage of us and diminish investor, supplier and employee confidence. Additionally, the threat of delisting or a delisting of
our ordinary shares from the Nasdaq Capital Market, could reduce the number of investors willing to hold or acquire our ordinary shares, thereby further
restricting our ability to obtain equity financing, and it could reduce our ability to retain, attract and motivate our directors, officers and employees. In
addition, as a consequence of any such delisting, our share price could be negatively affected and our shareholders would likely find it more difficult to sell,
or to obtain accurate quotations as to the prices of, our ordinary shares.
37
Our President and Chief Executive Officer along with our Chairman of the Board, or our Principal shareholders, currently own approximately 36.4% of
our share capital in aggregate on an issued and outstanding basis, and 37.4% in aggregate on a diluted basis. Therefore, our Principal Shareholders will
be able to exert significant control over matters submitted to our shareholders for approval.
Our principal Shareholders own approximately 36.4% of our share capital on an issued and outstanding basis, and 37.4% on a fully diluted basis. As
a result, these shareholders, if they acted together, could significantly influence or even unilaterally approve matters requiring approval by our shareholders,
including the election of directors and the approval of mergers or other business combination transactions. The interests of these shareholders may not always
coincide with our interests or the interests of other shareholders. This significant concentration of share ownership may adversely affect the trading price for
our ordinary shares because investors often perceive disadvantages in owning stock in companies with controlling shareholders.
Sales of a substantial number of our ordinary shares in the public market by our existing shareholders could cause our share price to fall.
Sales of a substantial number of our ordinary shares in the public market, or the perception that these sales might occur, could depress the market
price of our ordinary shares and could impair our ability to raise capital through the sale of additional equity securities. We are unable to predict the effect that
sales may have on the prevailing market price of our ordinary shares. Prior to the consummation of our initial public offering and in accordance with the
terms of the Tax Pre-Ruling, the holders of substantially all of our then-outstanding approximately seven million ordinary shares and options agreed not to
sell or dispose of our ordinary shares for a period of two years following the consummation of the Reorganization, subject to certain exceptions. To date, the
lock-up period has expired and all of our outstanding shares are eligible for unrestricted sale. In addition, shares issued or issuable upon exercise of options
and warrants vested as of the expiration of the lock-up period are eligible for sale as of February 4, 2016. Sales of shares by these shareholders would likely
result in the supply of our ordinary shares far exceeding the demand for our ordinary shares and could have a material adverse effect on the trading price of
our ordinary shares.
Raising additional capital would cause dilution to our existing shareholders, and may restrict our operations or require us to relinquish rights.
We may seek additional capital through a combination of private and public equity offerings, at-the-market issuances, equity-linked and structured
transactions, debt (straight, convertible, or otherwise) financings, collaborations and licensing arrangements. To the extent that we raise additional capital
through the sale of equity or convertible debt securities, your ownership interest will be diluted, and the terms may include liquidation or other preferences
that adversely affect your rights as a shareholder. Debt financing, if available, would result in increased fixed payment obligations and may involve
agreements that include covenants limiting or restricting our ability to take specific actions such as incurring debt, making capital expenditures or declaring
dividends. If we raise additional funds through collaboration, strategic alliance and licensing arrangements with third parties, we may have to relinquish
valuable rights to our technologies, future revenue streams or product candidates, or grant licenses on terms that are not favorable to us.
In anticipation of the same, we registered $150 million of our ordinary shares pursuant to a shelf registration statement on Form F-3 (Registration
No. 333-203133), or the Form F-3, which was declared effective by the SEC on July 1, 2015.
On May 31, 2016, the Company entered into a Controlled Equity OfferingSM Sales Agreement, or the Sales Agreement, with Cantor Fitzgerald &
Co., or Cantor, as the Company’s sales agent, pursuant to which the Company may offer and sell, from time to time through Cantor, its ordinary shares,
having an aggregate offering price of up to $16.0 million (the “ATM Offering”). Any ordinary shares offered and sold under the Sales Agreement will be
issued pursuant to the Form F-3, as supplemented by a prospectus supplement, dated May 31, 2016 and filed with the SEC on June 1, 2016. After giving
effect to the sale of $16.0 million of ordinary shares in the ATM Offering at an assumed public offering price of $3.92 per share (the last reported sale price of
our ordinary shares on the NASDAQ Capital Market on May 27, 2016), and after deducting commissions and estimated aggregate offering expenses payable
by us, our as adjusted net tangible book value as of December 31, 2015 would have been approximately $37 million, or approximately $2.47 per share. This
represented an immediate increase in net tangible book value of approximately $0.53 per share to our existing shareholders and an immediate dilution in as
adjusted net tangible book value of approximately $1.45 per share to investors participating in the ATM Offering, as illustrated in the section entitled
“Dilution” in the prospectus supplement. As of March 16, 2017, the latest practicable date for inclusion in this annual report, the Company had sold 933,160
ordinary shares through its ATM Offering for total proceeds of approximately $4.5 million, net of issuance expenses.
38
Depending upon market liquidity at the time, additional sales of shares registered pursuant to the Form F-3 at any given time could cause the trading
price of our common stock to decline.
Our U.S. shareholders may suffer adverse tax consequences due to our classification as a passive foreign investment company, or PFIC.
Generally, if for any taxable year 75% or more of our gross income is passive income, or at least 50% of our assets are held for the production of, or
produce, passive income, we would be characterized as a passive foreign investment company, or PFIC, for U.S. federal income tax purposes. Based upon our
review of our financial data, we have determined that we are currently not a PFIC, however, there is no assurance that we will not be considered a PFIC in the
future. If we were to be characterized as a PFIC for U.S. federal income tax purposes in any taxable year during which a U.S. Holder (as defined below) owns
ordinary shares, such U.S. Holder could face adverse U.S. federal income tax consequences. For example, such U.S. Holder could be subject to additional
taxes and interest charges upon certain distributions by us and any gain recognized on a sale, exchange or other disposition of our shares, whether or not we
continue to be characterized as a PFIC. One way in which certain of the adverse consequences of PFIC status can be mitigated is for a U.S. Holder to make an
election to treat us as a qualified electing fund, or QEF. A shareholder making the QEF election is required for each taxable year to include in income a pro
rata share of the ordinary earnings and net capital gain of the QEF, subject to a separate election to defer payment of taxes, which deferral is subject to an
interest charge. An election to treat us as a QEF will not be available if we do not provide the information necessary to make such an election. It is not
expected that a U.S. Holder will be able to make a QEF election because we do not intend to provide U.S. Holders with the information necessary to make a
QEF election. See also “Item 10. Additional Information—E. Taxation— Certain U.S. Federal Income Tax Considerations.”
If we are unable to satisfy the requirements of Section 404 as they apply to a foreign private issuer and emerging growth company, or our internal
controls over financial reporting are not effective, the reliability of our financial statements may be questioned and our share price may suffer.
We became subject to the requirements of the Sarbanes-Oxley Act when our ordinary shares were listed on the Nasdaq Capital Market. Section 404
requires companies subject to the reporting requirements of the U.S. securities laws to do a comprehensive evaluation of its and its subsidiaries’ internal
controls over financial reporting. To comply with this statute, we will be required to document and test our internal control procedures and our management
will be required to assess and issue a report concerning our internal controls over financial reporting. Pursuant to the JOBS Act, we will be classified as an
“emerging growth company.” Under the JOBS Act, emerging growth companies are exempt from certain reporting requirements, including the auditor
attestation requirements of Section 404(b) of the Sarbanes-Oxley Act. Under this exemption, our auditor will not be required to attest to and report on
management’s assessment of our internal controls over financial reporting during a five year transition period. We will need to prepare for compliance with
Section 404 by strengthening, assessing and testing our system of internal controls to provide the basis for our report. However, the continuous process of
strengthening our internal controls and complying with Section 404 is complicated and time-consuming. Furthermore, as our business continues to grow both
domestically and internationally, our internal controls will become more complex and will require significantly more resources and attention to ensure our
internal controls remain effective overall. During the course of its testing, our management may identify material weaknesses or significant deficiencies,
which may not be remedied in a timely manner to meet the deadline imposed by the Sarbanes-Oxley Act. If our management cannot favorably assess the
effectiveness of our internal controls over financial reporting, or our independent registered public accounting firm identifies material weaknesses in our
internal controls, investor confidence in our financial results may weaken, and the market price of our securities may suffer. Nevertheless, as a foreign private
issuer that is an emerging growth company, we are not required to comply with the auditor attestation requirements of Section 404 for up to five fiscal years
after the date of our initial public offering. See “Item 5. Operating and Financial Review and Prospects—Jumpstart Our Business Startups Act of 2012” for
more detail regarding our status as an emerging growth company.
39
To date, our independent public accountant has never conducted a review of our internal control for the purpose of providing the reports required by
these rules. During the course of our review and testing, we may identify deficiencies and be unable to remediate them before we must provide the required
reports. Furthermore, if we have a material weakness in our internal controls over financial reporting, we may not detect errors on a timely basis and our
financial statements may be materially misstated. We or our independent registered public accounting firm may not be able to conclude on an ongoing basis
that we have effective internal control over financial reporting, which could harm our operating results, cause investors to lose confidence in our reported
financial information and cause the trading price of our stock to fall.
If the securities analysts that currently cover our stock, or will do so in the future, or industry analysts do not publish or cease publishing research or
reports about us, our business or our market, or if they adversely change their recommendations or publish negative reports regarding our business or
our shares, our share price and trading volume could be negatively impacted.
The trading market for our ordinary shares is influenced by the research and reports that industry or securities analysts may publish about us, our
business, our market or our competitors. We do not have any control over these analysts and we cannot provide any assurance that analysts will cover us or
provide favorable coverage. If any of the analysts who do cover, or may cover us in the future, adversely change their recommendation regarding our shares,
or provide more favorable relative recommendations about our competitors, our share price would likely decline. If any analyst who cover us to cease
coverage of our company or fail to regularly publish reports on us, we could lose visibility in the financial markets, which in turn could negatively impact our
share price or trading volume.
Because we do not intend to declare cash dividends on our ordinary shares in the foreseeable future, shareholders must rely on appreciation of the value
of our ordinary shares for any return on their investment.
We have never declared or paid cash dividends on our ordinary shares. We currently anticipate that we will retain future earnings for the
development, operation and expansion of our business and do not anticipate declaring or paying any cash dividends in the foreseeable future. Moreover, the
Israeli Companies Law, 5759-1999, as amended, or the Companies Law, imposes certain restrictions on our ability to declare and pay dividends. See “Item 8.
Financial Information—Consolidated Financial Statements and Other Financial Information—Dividend Policy” for additional information.
The requirements associated with being a public company require significant company resources and management attention.
We are subject to the reporting requirements of the Securities Exchange Act of 1934, or the Exchange Act, the Sarbanes-Oxley Act, the listing
requirements of the Nasdaq Capital Market, on which our ordinary shares are traded, and other applicable securities rules and regulations. The Exchange Act
requires that we file periodic reports with respect to our business and financial condition and maintain effective disclosure controls and procedures and
internal control over financial reporting. In addition, subsequent rules implemented by the SEC and the Nasdaq Capital Market may also impose various
additional requirements on public companies. As a result, we incurred and will continue to incur additional legal, accounting and other expenses that we did
not incur as a privately-held company, particularly after we are no longer an “emerging growth company” as defined in the JOBS Act. Further, the need to
establish the corporate infrastructure demanded of a public company may divert management’s attention from implementing our development plans. We have
made and will continue to make changes to our corporate governance standards, compensation policy, disclosure controls and financial reporting and
accounting systems to meet our reporting obligations and applicable law. The measures we take, however, may not be sufficient to satisfy our obligations as a
public company, which could subject us to delisting of our ordinary shares, fines, sanctions and other regulatory action and potentially civil litigation.
The JOBS Act will allow us to postpone the date by which we must comply with some of the laws and regulations intended to protect investors and to
reduce the amount of information we provide in our reports filed with the SEC, which could undermine investor confidence in our company and
adversely affect the market price of our ordinary shares.
For so long as we remain an “emerging growth company” as defined in the JOBS Act, we intend to take advantage of certain exemptions from
various requirements that are applicable to public companies that are not “emerging growth companies” including:
40
·
·
·
·
the provisions of the Sarbanes-Oxley Act requiring that our independent registered public accounting firm provide an attestation report on
the effectiveness of our internal control over financial reporting;
the “say on pay” provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, or the Dodd-Frank Act, requiring
a non-binding shareholder vote to approve compensation of certain executive officers, and the Dodd-Frank Act’s “say on golden parachute”
provisions requiring a non-binding shareholder vote to approve golden parachute arrangements for certain executive officers in connection
with mergers and certain other business combinations and some of the disclosure requirements of the Dodd-Frank Act relating to
compensation of our President and Chief Executive Officer;
any rules that may be adopted by the Public Company Accounting Oversight Board, or the PCAOB, requiring mandatory audit firm rotation
or a supplement to the auditor’s report on the financial statements; and
our ability to furnish two rather than three years of income statements and statements of cash flows in various required filings.
We cannot predict if investors will find our ordinary shares less attractive because we may rely on these exemptions. If some investors find our
ordinary shares less attractive as a result, there may be a less active trading market for our ordinary shares, and our share price may become more volatile and
decline.
As a “foreign private issuer,” we are permitted to and currently do follow certain home country corporate governance practices instead of otherwise
applicable SEC and Nasdaq Capital Market requirements, which may result in less protection than is accorded to investors under rules applicable to
domestic U.S. issuers.
As a “foreign private issuer,” we are permitted to, and currently do, follow certain home country corporate governance practices instead of those
otherwise required under the Listing Rules of the Nasdaq Capital Market, or the Nasdaq Listing Rules, for domestic U.S. issuers. For instance, we currently
follow home country practice in Israel with regard to, among other things, director nomination procedure and approval of compensation of officers. In
addition, we may follow our home country law instead of the Nasdaq Listing Rules that require that we obtain shareholder approval for certain dilutive
events, such as the establishment or amendment of certain equity based compensation plans, an issuance that will result in a change of control of the
company, certain transactions other than a public offering involving issuances of a 20% or greater interest in the company, and certain acquisitions of the
stock or assets of another company. Following our home country governance practices as opposed to the requirements that would otherwise apply to a U.S.
company listed on the Nasdaq Capital Market may provide less protection to you than what is accorded to investors under the Nasdaq Listing Rules
applicable to domestic U.S. issuers. See “Item 16G. Corporate Governance.”
In addition, as a “foreign private issuer,” we are exempt from the rules and regulations under the Exchange Act related to the furnishing and content
of proxy statements and certain individual executive compensation information, and our officers, directors and principal shareholders are exempt from the
reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. Furthermore, as a “foreign private issuer,” we are also not
subject to the requirements of Regulation FD (Fair Disclosure) promulgated under the Exchange Act. These exemptions and leniencies reduce the frequency
and scope of information and protections to which you are entitled as an investor.
41
Because our ordinary shares may be a “penny stock,” it may be more difficult for investors to sell their ordinary shares, and the market price of our
ordinary shares may be adversely affected.
Our ordinary shares may be a “penny stock” if, among other things, the share price is below $5.00 per share, it is not listed on a national securities
exchange or we have not met certain net tangible asset or average revenue requirements. On March 16, 2017, the latest practicable date for inclusion in this
annual report, the last reported sales price of our share price on the Nasdaq Capital Market was $5.0.Broker-dealers who sell penny stocks must provide
purchasers of these stocks with a standardized risk-disclosure document prepared by the SEC. This document provides information about penny stocks and
the nature and level of risks involved in investing in the penny-stock market. A broker must also give a purchaser, orally or in writing, bid and offer
quotations and information regarding broker and salesperson compensation, make a written determination that the penny stock is a suitable investment for the
purchaser, and obtain the purchaser’s written agreement to the purchase. Broker-dealers must also provide customers that hold penny stock in their accounts
with such broker-dealer a monthly statement containing price and market information relating to the penny stock. If a penny stock is sold to an investor in
violation of the penny stock rules, the investor may be able to cancel its purchase and get its money back.
If applicable, the penny stock rules may make it difficult for investors to sell their ordinary shares. Because of the rules and restrictions applicable to
a penny stock, there is less trading in penny stocks and the market price of our ordinary shares may be adversely affected. Also, many brokers choose not to
participate in penny stock transactions. Accordingly, investors may not always be able to resell their ordinary shares publicly at times and prices that they feel
are appropriate and the market price of our ordinary shares may be adversely affected.
Our ordinary shares are listed on the Nasdaq Capital Market. As such, we must meet the Nasdaq Capital Market’s continued listing requirements and
other Nasdaq rules, or we may risk delisting. Delisting could negatively affect the price of our ordinary shares, which could make it more difficult for us
to sell securities in a financing and for you to sell your ordinary shares.
Our ordinary shares are listed on the Nasdaq Capital Market. As such, we are required to meet the continued listing requirements of the Nasdaq
Capital Market and other Nasdaq rules, including those regarding director independence and independent committee requirements, minimum shareholders’
equity, minimum share price and certain other corporate governance requirements. In particular, we are required to maintain a minimum bid price for our
listed ordinary shares of $1.00 per share. If we do not meet these continued listing requirements, our ordinary shares could be delisted. Delisting of our
ordinary shares from the Nasdaq Capital Market would cause us to pursue eligibility for trading on other markets or exchanges, or on the pink sheets. In such
case, our shareholders’ ability to trade, or obtain quotations of the market value of, our ordinary shares would be severely limited because of lower trading
volumes and transaction delays. These factors could contribute to lower prices and larger spreads in the bid and ask prices for our securities. There can be no
assurance that our ordinary shares, if delisted from the Nasdaq Capital Market in the future, would be listed on a national securities exchange, a national
quotation service, the Over-The-Counter Markets or the pink sheets. Delisting from the Nasdaq Capital Market, or even the issuance of a notice of potential
delisting, would also result in negative publicity, make it more difficult for us to raise additional capital, adversely affect the market liquidity of our ordinary
shares, reduce security analysts’ coverage of us and diminish investor, supplier and employee confidence. In addition, as a consequence of any such delisting,
our share price could be negatively affected and our shareholders would likely find it more difficult to sell, or to obtain accurate quotations as to the prices of,
our ordinary shares.
Risks Related to Israeli Law and Our Operations in Israel
Our headquarters and other significant operations are located in Israel and, therefore, our results may be adversely affected by political, economic and
military instability in Israel.
Our executive offices are located in Tel Aviv, Israel. In addition, the majority of our officers and directors are residents of Israel. Accordingly,
political, economic and military conditions in Israel may directly affect our business. Since the establishment of the State of Israel in 1948, a number of armed
conflicts have taken place between Israel and its neighboring countries. 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. During the winter of 2008-2009, the autumn of 2012 and the
summer of 2014, Israel was engaged in armed conflicts with Hamas, an Islamist terrorist organization operating in the Gaza Strip and parts of the West Bank.
The last conflict, as well as the previous round of escalation, involved missile strikes against civilian targets in various parts of Israel, including areas in
which our employees, service providers and some of our consultants are located. During the summer of 2006, Israel was also engaged in armed conflicts with
Hezbollah, a Lebanese Islamist terrorist organization, which also involved missile strikes against civilian targets in the northern part of Israel. The
continuation of such strikes may negatively affect business conditions in Israel.
42
Since February 2011, riots and uprisings in several countries in the Middle East and neighboring regions have led to severe political instability in
several neighboring states and to a decline in the regional security situation. Such instability may affect the local and global economy, could negatively affect
business conditions and, therefore, could adversely affect our operations. To date, these matters have not had any material effect on our business and results of
operations; however, the regional security situation and worldwide perceptions of it are outside our control, and there can be no assurance that these matters
will not negatively affect us in the future. In addition, the political and security situation in Israel may result in parties with whom we have agreements
involving performance in Israel claiming that they are not obligated to perform their commitments under those agreements pursuant to force majeure
provisions in such agreements.
Our commercial insurance does not cover losses that may occur as a result of an event associated with the security situation in the Middle East.
Although the Israeli government is currently committed to covering 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 if maintained, will be sufficient to compensate us fully for damages incurred.
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 generally and could harm our results of operations.
Further, in the past, the State of Israel and Israeli companies have been subjects of economic boycotts. Several countries still restrict business with
the State of Israel and with Israeli companies. These restrictive laws and policies may have an adverse impact on our operating results, financial condition or
the expansion of our business.
Our operations may be disrupted as a result of the obligation of Israeli citizens to perform military service.
Many Israeli citizens are obligated to perform several days, and in some cases more, of annual military reserve duty until they reach the age of 40 (or
older, for reservists who are officers or who have certain occupations) and, in the event of a military conflict, may be called to active duty. In response to
increases in terrorist activity, there have been periods of significant call-ups of military reservists. It is possible that there will be military reserve duty call-ups
in the future. Our operations could be disrupted by such call- ups, which may include the call-up of our employees or the employees of our Israeli business
partners. Such disruption could materially adversely affect our business, financial condition and results of operations.
Exchange rate fluctuations between the U.S. dollar, Euro and the New Israeli Shekel currencies may negatively affect our earnings.
Our functional currency is the U.S. dollar. We incur expenses in U.S. dollars, Euros and New Israeli Shekels, or NIS. As a result, we are exposed to
the risks that the Euro and the NIS may appreciate relative to the U.S. dollar, or, if either the Euro and the NIS devalue relative to the U.S. dollar, that the
inflation rate in the EU and in Israel may exceed such rate of devaluation of the Euro and the NIS, or that the timing of such devaluation may lag behind
inflation in the EU and in Israel. In any such event, the U.S. dollar cost of our operations in the EU and in Israel would increase and our U.S. dollar-
denominated results of operations would be adversely affected. The average exchange rate for the year ended December 31, 2016 was $1.00 = Euro 0.95 and
$1.00 = NIS 3.85. We cannot predict any future trends in the rate of inflation in the EU and in Israel or the rate of devaluation, if any, of either the Euro or the
NIS against the U.S. dollar. As of the date hereof, neither the inflation rate in the EU nor in Israel has exceeded the rate of devaluation of the Euro or the NIS,
respectively, during the calendar years 2013, 2014, 2015 or 2016.
Provisions of Israeli law and our articles of association, or Articles, may delay, prevent or otherwise impede a merger with, or an acquisition of, our
company, which could prevent a change of control, even when the terms of such a transaction are favorable to us and our shareholders.
The Companies Law regulates, among others, mergers, requires tender offers for acquisitions of shares above specified thresholds, requires special
approvals for transactions involving directors, officers or significant shareholders and regulates other matters that may be relevant to such types of
transactions. See “Item 10. Additional Information—B. —Mergers and Acquisitions under Israeli Law” for additional information
43
Furthermore, Israeli tax considerations may make potential transactions unappealing to us or to our shareholders whose country of residence does not
have a tax treaty with Israel exempting such shareholders from Israeli tax. See “Item 10. Additional Information—E. Taxation—Certain Israeli Tax
Considerations” for additional information.
Our Articles also contain provisions that could delay or prevent changes in control or changes in our management without the consent of our Board.
These provisions include the following:
·
·
no cumulative voting in the election of directors, which limits the ability of minority shareholders to elect director candidates; and
the exclusive right of our Board to elect a director to fill a vacancy created by the expansion of the Board or the resignation, death or
removal of a director, which prevents shareholders from being able to fill vacancies on our Board.
Anti-takeover provisions in our Articles could make it difficult for our shareholders to replace or remove our current Board and could have the effect of
discouraging, delaying or preventing a merger or acquisition, which could adversely affect the market price of our ordinary shares.
Certain provisions of our Articles may have the effect of rendering more difficult or discouraging an acquisition of the Company deemed undesirable
by the Board. Those provisions include:
·
·
·
limiting the ability of our shareholders to convene general meetings of the Company;
controlling procedures for the conduct of shareholder and our Board meetings, including quorum and voting requirements; and
the election and removal of directors.
Moreover, the classification of our Board into three classes with terms of approximately three years each, which was approved by shareholders of the
Company, the requirement of affirmative vote of at least 75% of the voting rights represented personally or by proxy and voting thereon at a general meeting
in order to amend or replace our Articles and the requirement under the Companies Law to have at least two external directors who cannot readily be removed
from office, together with the other provisions of the Articles and Israeli law, could deter or delay potential future merger, acquisition, tender or takeover
offers, proxy contests or changes in control or management of the Company, some of which could be deemed by certain shareholders to be in their best
interests and which could affect the price some investors are willing to pay for our ordinary shares.
It may be difficult to enforce a judgment of a United States court against us, our officers, directors and the Israeli experts named in this annual report in
Israel or the United States, to assert United States securities laws claims in Israel or to serve process on our officers, directors and these experts.
We were and continue to be organized in Israel. Substantially all of our executive officers and directors reside outside of the United States, and all of
our assets and most of the assets of these persons are located outside of the United States. Therefore, a judgment obtained against us, or any of these persons,
including a judgment based on the civil liability provisions of the U.S. federal securities laws, may not be collectible in the United States and may not
necessarily be enforced by an Israeli court. It also may be difficult to effect service of process on these persons in the United States or to assert U.S. securities
law claims in original actions instituted in Israel. Additionally, it may be difficult for an investor, or any other person or entity, to initiate an action with
respect to United States securities laws in Israel. Israeli courts may refuse to hear a claim based on an alleged violation of United States securities laws
reasoning that Israel is not the most appropriate forum in which to bring such a claim. In addition, even if an Israeli court agrees to hear a claim, it may
determine that Israeli law and not United States law is applicable to the claim. If United States law is found to be applicable, the content of applicable United
States law must be proven as a fact by expert witnesses, which can be a time consuming and costly process. Certain matters of procedure will also be
governed by Israeli law. There is little binding case law in Israel that addresses the matters described above. As a result of the difficulty associated with
enforcing a judgment against us in Israel, our shareholders may not be able to collect any damages awarded by either a United States or foreign court.
44
Your rights, liabilities and responsibilities as a shareholder will be governed by Israeli law and differ in some material respects from those under U.S. law.
Because we are an Israeli company, the rights and responsibilities of our shareholders are governed by our Articles and Israeli law. These rights,
liabilities and responsibilities differ in some material respects from the rights, liabilities and responsibilities of shareholders in a U.S. corporation. In
particular, a shareholder of an Israeli company has a duty to act in good faith towards the company and other shareholders and to refrain from abusing his, her
or its power in the company, including, among other things, when voting at the general meeting of shareholders on certain matters. Israeli law provides that
these duties are applicable to shareholder votes on, among other things, amendments to a company’s articles of association, increases in a company’s
authorized share capital, mergers and interested party transactions requiring shareholder approval. In addition, a controlling shareholder, a shareholder who
knows that it possesses the power to determine the outcome of a shareholders’ vote or a shareholder who has the power to appoint or prevent the appointment
of a director or executive officer in the company, has a duty of fairness towards the company. However, Israeli law does not define the substance of this duty
of fairness. Because Israeli corporate law has undergone extensive revisions in recent years, there is little case law available to assist in understanding the
implications of these provisions that govern shareholder behavior. These provisions may be interpreted to impose additional obligations and liabilities on
holders of our ordinary shares that are not typically imposed on shareholders of U.S. corporations. See “Item 10. Additional Information—B Memorandum
and Articles of Association—Shareholder Duties” for additional information
Any of the risk factors referred to above could significantly and negatively affect our business, results of operations or financial condition, which may
reduce our ability to pay dividends and lower the trading price of our ordinary shares. The risks referred to above are not the only ones that may exist.
Additional risks not currently known by us or that we deem immaterial may also impair our business operations.
ITEM 4. Information on the Company.
Historical Background and Corporate Structure
Our Company, Galmed Pharmaceuticals Ltd., was incorporated in Israel on July 31, 2013 as a privately held company and is governed by the
Companies Law. However, our business has been operating since 2000 under a different group of companies established in the same year, or the Group.
Originally, we operated under the parent company, GHI. GHI held all of the equity rights in and to GTTI. GTTI held all of the equity rights in and to GIL
(other than 0.1% of the share capital held by GHI). GIL held all of the equity rights in and to GMR. Our intellectual property was held by GIL. The research
and development was conducted by GMR as a service to GIL on a cost plus basis. GIL was responsible for all product development.
On February 2, 2014, we underwent the Reorganization, pursuant to which all of our intangible assets (including our intellectual property) were
transferred from GIL to GRD. The Reorganization was effectuated by share transfers and asset transfers, resulting in the Company as the parent company and
100% equity-owner of the following companies: (1) GRD, which holds all the Group’s intellectual property, including the Company’s patent portfolio; (2)
GIL, which may provide research and development services to GRD on a cost plus basis; and (3) GTTI, which is an inactive company that we expect to
liquidate in 2017. GIL holds GMR, which became an inactive company in 2015. The Reorganization was conducted in order to simplify our capital structure,
reduce our operating cost and to improve our ability to raise funds. Immediately prior to the Reorganization, all our shareholders collectively held 9,739
ordinary shares of GHI. In connection with the Reorganization, and in accordance with the Tax Pre-Ruling, we issued to all such shareholders ordinary shares
of the Company, such that upon the Reorganization all our shareholders collectively held 7,099,731 ordinary shares of the Company, in the same proportion
among all shareholders, which reflected a ratio of 729 ordinary shares of the Company for each ordinary share of GHI.
45
The following is a diagram of our corporate structure (following GTTI's liquidation):
On March 18, 2014, we completed our initial public offering of 3,263,010 ordinary shares at a public offering price of $13.50 per share, which
included 425,610 ordinary shares issued upon the exercise in full of the underwriters’ option to purchase additional ordinary shares to cover over-allotments,
for aggregate gross proceeds of approximately $44.1 million. Net of underwriting discounts, commissions and other estimated offering expenses, the offering
raised approximately $39.7 million.
On May 31, 2016, we entered into the Sales Agreement with Cantor to issue and sell, from time to time through Cantor, ordinary shares having an
aggregate offering price of up to $16 million. Under the ATM Offering, the Company may sell ordinary shares by any method permitted by law and deemed
to be an “at-the-market” offering, as defined in Rule 415 promulgated under the Securities Act of 1933, as amended, or the Securities Act. The Company is
not obligated to make any sales under the Sales Agreement. The Company intends to use the net proceeds raised through any ATM Offering sales for (i)
further clinical and non-clinical development of existing and new programs, (ii) business development related activities and (iii) general corporate purposes.
As of March 16, 2017, the latest practicable date for inclusion in this annual report, the Company had sold 933,160 ordinary shares through its ATM Offering
for total proceeds of approximately $4.5 million, net of issuance expenses. The offering of ordinary shares pursuant to the ATM Offering will terminate upon
the earliest of (i) the sale of all of the ordinary shares subject to the Sales Agreement, (ii) the termination of the Sales Agreement by Cantor or the Company,
as permitted therein, or (iii) the third anniversary of the date of the ATM Offering.
Our principal executive offices and registered office in Israel are located at 16 Tiomkin Street, Tel Aviv, Israel, 6578317 and our telephone number is
+972-3-693-8448. Our website address is http://www.galmedpharma.com. The information contained on, or that can be accessed through, our website is
neither a part of nor incorporated into this annual report. We have included our website address in this annual report solely as an inactive textual reference.
Puglisi & Associates, or Puglisi, serves as our authorized representative in the United States for matters concerning our IPO, our registration statement filing
on Form S-8, our Form F-3 and the Sales Agreement. Puglisi’s address is 850 Library Avenue, Newark, Delaware 19711.
46
Other than as described in “Item 5. Operating and Financial Review and Prospects—Contractual Obligations”, we have not had any material
commitments for capital expenditures, including any anticipated material acquisition of plant and equipment or interests in other companies, since January 1,
2014. Additionally, we have not had any material capital divestitures since January 1, 2014.
Business Overview
We are a clinical-stage biopharmaceutical company focused on the development of Aramchol a first in class, novel, once-daily, oral therapy for the
treatment of NASH for variable populations, as well as other liver associated disorders. We believe that our product candidate, Aramchol, has the potential to
be a disease modifying treatment for fatty liver disorders, including NASH, which is a chronic disease that constitutes a large unmet medical need.
Aramchol is a synthetic conjugate of cholic acid, or a type of bile acid, and arachidic acid, or a type of saturated fatty acid, both of which, in their
non-synthetic forms, are naturally occurring. The conjugated molecule acts upon important metabolic pathways, reducing fat accumulation in the liver and
regulating the transport of cholesterol, which is essential for maintaining cholesterol balance in the body. The ability of Aramchol to decrease liver fat content
may also reduce the inflammation in the liver and the risk of cardiovascular complications associated with NASH. We believe that Aramchol’s ability to
reduce liver fat and liver fibrosis without observable adverse side effects in our studies to date will enable it to be a safe and effective treatment for all stages
of NASH in OD patients and prevent the hepatic and cardiovascular complications associated therewith.
On February 1, 2015, we began our ARREST Study, a multi-center, randomized, double-blind, placebo-controlled, dose-ranging Phase IIB clinical
trial of Aramchol, in 248OD patients who have been biopsy-diagnosed as having NASH. We have initiated this study in Israel, Europe, Latin America, China
and the United States (pursuant to an IND authorized by FDA). Our ARREST Study for Aramchol in OD NASH patients is in accordance with the study
design recommended by the Medicines and Healthcare Products Regulatory Agency, or MHRA, and has been deemed acceptable by Bundesinstitut für
Arzneimittel und Medizinprodukte, a German medical agency, or BfArM, and deemed satisfactory by Agence nationale de sécurité du médicament, a French
medical agency, or ANSM. The BfArM and ANSM also confirmed, in minutes of each of their respective scientific advisory meetings, that if successful, the
ARREST Study may serve as a basis for Phase III pivotal trials of Aramchol. The FDA and MHRA invited us to discuss the next steps in the development of
Aramchol after we analyze the results of the ARREST Study. If the Phase III trial(s) are successful, we intend to submit an NDA to the FDA and an MAA to
the EMA for the approval of Aramchol for the treatment of NASH in the United States and Europe. More information about the ARREST Study may be
found on ClinicalTrials.gov identifier: NCT02279524.
Originally, we intended to perform a ‘futility analysis’ as part of the ‘interim analysis.’ The futility analysis would have reviewed the data both for
safety signals and determined whether subjects receiving Aramchol showed an observable reduction in liver fat concentration, as measured by MRS. The
independent Drug and Safety Monitoring Board (DSMB) would have then made a “go/no go” decision based on the MRS data at six months. The absence of
significant MRS-related results at the six month point could have resulted in the termination of the study based on the absence of clinical benefit in the
interim review and was therefore considered a futility analysis.
However, in light of the FDA and AASLD clinical guidance for the development of diagnostic and therapeutic modalities for the treatment of NASH
published in early 2015, it has become increasingly clear that histological data (liver biopsy) will be absolutely required to seek regulatory approval for
NASH drugs, not merely MRS data. This conclusion was further supported by two recent Phase III protocols (the REGENERATE Study, NCT02548351, and
RESOLVE-IT study- NCT 02704403), which also require resolution of NASH as measured by histological data. As such, the entire twelve month dataset will
be necessary to judge the viability of Aramchol, and potential further development thereof.
Thus, the scope of the interim analysis we conducted after 120 patients in our ARREST Study completed six months of treatment was limited to
analysis of safety related signals only, conducted by the data monitoring committee, or DMC. The interim analysis does not include review of the data with
respect to any efficacy endpoints. On February 8, 2017, the DMC met in order to review the accumulated safety data in accordance with a protocol defined
safety interim review. Following its review of the data, the DMC recommended continuation of the ARREST Study without changes.
47
We have completed randomization into the ARREST Study with 248 randomized patients. Top line Data from the ARREST Study are expected to be
available during the second quarter of 2018.
Non-Alcoholic Fatty Liver Disease (NAFLD) / Non-Alcoholic Steato-Hepatitis (NASH)
It is currently estimated that Non-Alcoholic Fatty Liver Disease (NAFLD), the precondition to NASH, could affect up to 30% of the adult population
in developed countries. This disease is also now recognized as one of the most common liver disorders, and a significant growing public health problem. In
the US alone, more than 100 million people are said to be affected by NAFLD, and its prevalence is rapidly growing in parallel with metabolic syndromes,
particularly obesity and diabetes.
NAFLD is characterized by the accumulation of fat of 6% or greater in the liver of people who drink alcohol only in moderation, or not at all. There
may be numerous causes of NAFLD, however, the disease is mostly associated with a high fat, fructose-rich diet. Although NAFLD is generally
asymptomatic, it is a major risk factor for liver inflammation (NASH) and scarring (fibrosis and cirrhosis). In addition, NAFLD is also associated with
metabolic syndrome and cardiovascular disease. Currently, NAFLD can only be managed through lifestyle improvements, such as weight reduction and
physical activity.
NASH is currently estimated to affect between 4%-6% of the adult population in developed countries, and is associated with increased risk of liver
cirrhosis, liver failure, hepatocellular cancer, as well as metabolic and cardiovascular diseases. The major characteristics of NASH are elevated liver fat,
inflammation, ballooning and fibrosis.
However, despite the growing need, there are currently no approved therapeutic treatments for NASH. Modification of risk factors, such as obesity
and hyperlipidemia, and proper diabetic control is generally recommended for the treatment of NASH, and the standard of care includes lifestyle changes to
promote weight loss, including low-calorie, low-fat diets and physical activity. Although weight loss can be potentially significant in delaying the progression
of NASH, studies have shown that, for most individuals, it is generally very difficult to maintain over the long-term, even following bariatric surgery.
There are currently no drugs approved by regulatory authorities for the treatment of NASH. Even though certain drugs, such as insulin sensitizers
and antihyperlipidemic agents, are prescribed for some NASH patients, they are not approved for the treatment of NASH and their efficacy has not been
proven in adequate and well-controlled clinical studies.
Currently, it is impossible to predict which of the NAFLD patients will deteriorate to NASH as it is unclear what causes NASH to develop.
Researchers are now focusing on several factors that may contribute to the development of NASH. Therefore lifestyle changes are recommended for all
patients with NAFLD.
In 2015, the FDA and AASLD issued clinical guidance for the development of diagnostic and therapeutic modalities for the treatment of NASH
based on the joint workshop held on September 5-6, 2013. The guidance serves as a broad framework for discussions with different companies and the
requirements for pivotal studies for receiving regulatory approval are decided case-by-case depending on the products profile and previous studies results.
The current regulatory path may be inferred from the ongoing pivotal studies. To date, there are two pivotal studies in NASH that are ongoing. These studies
include a histology based interim after 72 weeks of treatment which is intended for marketing approval while the study continues to a clinical end-point. The
end-points in these studies are either NASH resolution or a composite end-point of NASH resolution or fibrosis improvement.
48
There is an exceptionally wide range of estimates regarding the size of the commercial market for NASH. This uncertainty stems from (i) the overall
size of the patient population, (ii) the percentage of the addressable market that will be diagnosed and, subsequently, seek treatment, and (iii) the ultimate cost
of the therapies. None of these factors can be known definitively until NASH drugs begin to hit the market, which based on analysts’ estimates, will likely be
2019 at the earliest. Independent estimates generally estimate a commercial market in excess of $10 billion in developed countries, though we do not endorse
any estimates, which are based on a number of different underlying assumptions.
Aramchol for NASH
Overview
Our product candidate, Aramchol, is a first-in-class synthetic FABAC which we are initially developing for the once-daily oral treatment of NASH in
OD patients.
Early in its development, Aramchol’s ability to modulate hepatic lipid metabolism was observed and validated in numerous non-clinical trials with
different animal species. Mice fed a high fat diet and treated with Aramchol did not develop fatty liver. In contrast, fatty liver was observed in control mice
fed a high fat diet but not treated with Aramchol. In such early studies, we also observed that the mechanism of this effect was not a result of malabsorption of
fat in the intestines because the FABAC-treated mice gained weight throughout the test periods to a similar degree to the control mice. This led us to conclude
that FABAC therapy triggers a beneficial modulation of intra-hepatic lipid metabolism and thus reduces liver fat content. The images below show the
reduction of liver fat content in liver cells of rodents after treatment with Aramchol.
In in-vitro and in vivo studies, Aramchol down regulates the Stearoyl-Coenzyme A Desaturase-1, or SCD1, enzyme, an enzyme recognized as
playing an important role in the metabolism of fatty acids. The SCD1 enzyme is essentially the gateway that regulates the use and storage of fat in the body
by converting saturated fatty acids to monounsaturated fatty acids. Experimental animal studies showed that complete inhibition of the SCD1 enzyme protects
against diet-induced obesity, hepatic steatosis, or fatty liver, and insulin resistance by instructing the body to use, rather than store, all fatty acids. However,
various animal studies have indicated that such complete SCD1 enzyme inhibition has mechanism based serious side effects, such as atherosclerosis,and eye
and skin disorders. As observed by us in our non-clinical and clinical studies performed to date, and subsequently published in the European Journal of
Gastroenterology and Hepatology and Archives of Medical Research in 2008 and 2010 respectively, one of Aramchol’s unique characteristics is that it down
regulates the SCD1 enzyme but does not inhibit it completely – a partial effect. To date, we have not observed any significant adverse events in our
toxicology and clinical studies.
49
Aramchol also has the ability to up-regulate ABCA1 and thereby induce “reverse cholesterol transport” in animal models. ABCA1 is an ATP-binding
cassette transporter, also known as the cholesterol efflux regulatory protein (CERP), which is a regulator of cellular cholesterol and phospholipid homeostasis.
In every cell of the body, the LDL receptor enables entry of cholesterol into the cell and the ABCA1 transporter pumps cholesterol out of the cell, where it is
carried by high-density lipoprotein, or HDL, to the liver to be excreted into the intestine. This pathway of cholesterol from the cell to the liver is called
reverse cholesterol transport and is essential for maintaining cholesterol balance in the body. Excess LDL, or “bad,” cholesterol is deposited mainly in
vascular walls, causing atherosclerosis, a vascular disease in which an artery wall thickens as a result of the accumulation of calcium and fatty materials, such
as cholesterol. Activation of reverse cholesterol transport reduces the bad cholesterol deposited in vascular walls and is therefore beneficial. As published in
the Biochemical Journal, the Archives of Medical Research and the Current Opinion in Lipidology in 2006, 2010 and 2014, respectively, in several
experimental models in animals, Aramchol has been shown in independent studies to increase ABCA1 activity by between 300% and 400%, thereby
stimulating reverse cholesterol transport, reducing cholesterol levels and preventing atherosclerosis. An article in the April 2014 issue of Biochimie further
supports the importance of the regulation of ABCA1-induced reverse cholesterol transport on the pathogenesis of NASH. Furthermore, in our recent non-
clinical trials we identified a unique mechanism of Aramchol by which it up regulates the glutathione levels, thereby facilitating an improved fatty liver
oxidation and reduction of ROS to better preserve normal redox homeostasis.
To date, we have successfully completed four clinical trials of Aramchol:
Phase I Single and Multiple-Dose Study of Aramchol in Healthy Male Volunteers (NCT00776841)
Aramchol was evaluated in two Phase I clinical trials (under a single protocol) to study its safety, tolerability and PK profile in healthy volunteers, in
both single and multiple dose administrations. The first Phase I clinical trial was an escalating single-dose trial conducted in 16 healthy subjects testing
Aramchol doses ranging from 30 mg to 900 mg, performed in one center in Israel. The subsequent Phase I clinical trial was a repeated-dose trial conducted
over four days in 25 healthy subjects testing repeated daily doses of Aramchol of 30 mg and 300 mg, performed in one center in Israel. The profiles for the
groups were similar and the maximal plasma concentration of Aramchol increased with the higher doses. The PK profile demonstrated that Aramchol is
suitable at each dose for once-daily administration and there were neither significant adverse events observed in either Phase I trial nor any notable changes in
biochemical, hematologic, cardiovascular or other safety parameters.
Phase IIA Trial: Aramchol Treatment in NAFLD or NASH Patients (NCT01094158)
In January 2012, we completed a 60 patient multi-center, randomized, double-blind, placebo-controlled Phase IIA clinical trial of Aramchol in
patients with NAFLD or NASH between the ages of 18 and 75 in 12 centers in Israel. The Phase IIA study results were published in July 2014 in the peer-
reviewed Clinical Gastroenterology and Hepatology Journal. In accordance with the AASLD’s guidelines for Phase IIA studies in NAFLD or NASH, the trial
was performed in patients with either NAFLD or NASH, rather than only in NASH patients. The trial’s primary efficacy endpoint was a reduction in liver fat
content, and did not consider inflammation or fibrosis, which can be diagnosed only by liver biopsy. We believe that the short study duration of three months
of treatment followed by a one-month follow-up period did not warrant repeated biopsies. The trial evaluated the effects on liver fat content of 100 mg and
300 mg once-daily doses of Aramchol compared to a placebo. At the end of the three month treatment period, statistically significant reductions in liver fat
concentration as measured by MRS were observed in the 300 mg patient group. Specifically, a 12.57% mean liver fat content reduction was observed in the
300 mg group, as compared to a mean reduction of 2.89% in the 100 mg group and a mean increase of 6.39% in the placebo-treated patients. These results
indicate that the effects of Aramchol are dose-dependent, as demonstrated in the graph below, which presents the results with respect to the 57 patients who
successfully completed the entire treatment period.
50
Relative Change in MRS from Baseline after Three Months of Treatment
The difference between baseline and liver fat concentration at the end-of-treatment, as measured by MRS, for patients diagnosed with NASH and
with NAFLD is presented in the table above, which also presents the results with respect to the 57 patients who successfully completed the entire treatment
period (three patients were excluded from data analysis because of one protocol violation and two withdraw consents).
The table above shows that the primary endpoint of the study was attained. The study demonstrated a statistically significant, dose dependent
reduction in fat content in the livers of patients treated with Aramchol, with a 19% difference between the 300 mg dose group and the placebo group, while
the difference between the 100 mg dose group and the placebo group was not statistically significant. Notably, the minimal effective dose of Aramchol has
been defined.
A non-statistically significant change of approximately 1 Kg in body weight was observed between the 300 mg dose group and the placebo group,
suggesting that weight-loss did not influence the observed reduction in liver fat content experienced in the Aramchol treated groups.
There were no statistically significant differences among the three treatment groups for any of the secondary end points. There was a nonsignificant
trend of mild weight reduction (P=.1) in the high dose Aramchol group. Serum adiponectin levels increased (0.2 ± 1.7 µg/mL) in the high-dose Aramchol
group but decreased in the low-dose (-0.3 ± 1.5 µg/mL) and placebo groups (-0.7 ±_1.3 µg/mL) (P= 0.88 for trend of dose-response relationship by linear
regression). FMD increased nonsignificantly by 1.28% ± 2.92% in the high-dose group, by 0.34% ±3.54% in the low-dose group, and by 0.46% ± 2.28% in
the placebo group.
Adiponectin is a protein that modulates metabolic processes, including the regulation of glucose levels and fatty acid breakdown in the body.
Adiponectin has an anti-inflammatory and antifibrotic effect on the liver. Adiponectin deficiency, or low amounts of adiponectin, results in insulin resistance,
glucose intolerance, abnormal levels of fat in the blood and vascular injury, all of which are characteristic of metabolic syndrome. The graph below shows the
change in serum adiponectin levels from baseline during treatment. At the end of the three month treatment period, a non-statistically significant increase in
serum adiponectin levels were observed in the Aramchol treated patient groups, indicating that Aramchol may increases serum adiponectin levels in a dose
dependent manner, suggesting that Aramchol may act as a protective factor for the prevention of metabolic syndrome, as increased serum adiponectin is itself
such an independent protective factor.
51
Change in Serum Adiponectin Levels from Baseline during Three Months of Treatment
The arterial endothelium is a target for the atherosclerotic process. Atherosclerosis is associated with endothelial dysfunction in the very early stages
of the disease process. Several studies have shown that metabolic syndrome is associated with endothelial dysfunction as an early pathogenic event. Thus,
assessing endothelial function serves as an early marker for both metabolic syndrome and atherosclerosis. In the present study, endothelial function was
assessed using flow-mediated dilation, a noninvasive ultrasound-based method that measures the ability of a large conduit artery to dilate in response to a
shear stress stimulus, or an external force acting on the blood vessel. At the end of the three month treatment period, a non-statistically significant
improvement in endothelial function was observed in the 300 mg Aramchol treated patient group. The table and graph below present the change in
endothelial function, as measured by flow mediated dilation observed between baseline and the end-of-treatment for the 48 patients who performed two flow
mediated dilation examinations.
Change in Endothelial Function between Baseline and the End-of-Treatment
FMD (mm Hg)
Pre-treatment
Post-treatment
Change
P value**
N = number of patients
SD = standard deviation
Aramchol 300 mg/d
Mean ± SD
N=20
4.6 ± 2.5
5.9±2.1
1.28±2.92
0.453
Aramchol 100 mg/d
Mean ± SD
N=18
5.4 ±2.8*
5.7±3.9
0.27±3.42
0.8979
Placebo
Mean ± SD
N=19
6.4 ±2.9
6.6±2.3
0.23±2.42
*
**
N = 16 for this data point.
P value is determined according to an analysis of covariance using the Dunnett method, or a multiple comparison method, for the difference between
treatment group and placebo, adjusted for age, gender, diagnosis, baseline HbA1c and baseline weight.
52
The improvement in endothelial function suggests a positive effect on metabolic syndrome, specifically on vascular function.
The frequency of adverse events was similar in all treatment groups (as shown in the table below), but no such adverse event was considered to be
related to the treatment. All adverse events were mild or moderate and none considered to be serious. None of the patients withdrew as a result of such
adverse events.
The results of our Phase IIA clinical trial of Aramchol in the peer-reviewed Clinical Gastroenterology and Hepatology Journal were published in
December 2014. The trial manuscript, entitled “The Fatty Acid-Bile Acid Conjugate Aramchol Reduced Liver Fat Content in Patients with Nonalcoholic
Fatty Liver Disease,” provides the full report of the Phase IIA trial, which was completed in January 2012 and presented at the 47th Annual Meeting of the
European Association for the Study of the Liver in 2012. Based on this Phase IIA proof-of-concept results, we established a development plan that we believe
may confirm that Aramchol (i) is safe, (ii) can be administered as a once-daily oral therapy, and (iii) targets NASH through several mechanisms including
metabolic and anti-fibrotic.
53
Pharmacokinetics of Single and Multiple Escalating Doses of Aramchol and Food Effect in Healthy Volunteers (NCT02374437)
On April 28, 2014, we commenced PK and food effect studies of Aramchol. In written correspondence from December 2013 regarding a requested
pre- IND meeting, the FDA recommended that we conduct such studies prior to commencing our Phase IIB ARREST Study.
We conducted the food effect and PK study at the Sourasky Medical Center in Tel Aviv, Israel involving 66 healthy volunteers to evaluate the PK of
Aramchol following single and multiple escalating doses (200 mg, 400 mg and 600 mg), as well as to evaluate the effect of a high-fat, high-calorie meal on
the PK of Aramchol following a single dose in healthy volunteers.
The results showed dose-related, but less than dose-proportional, increases in the mean Aramchol plasma concentrations, or Cmax, area under the
curve, or AUC (0-t), and AUC (inf) of 200 mg, 400 mg and 600 mg doses administered under fasting conditions or following a light meal, both at single and
repeated dose administration. Cmax and AUC are metrics used to indicate the significance of a drug’s exposure. Steady-state was achieved by 144 hours (day
seven). Administration of Aramchol after a high-fat, high-calorie meal afforded a 2.6 fold increase in exposure, as measured by Cmax, AUC(0-t), and
AUC(inf) compared to the fasting group.
No serious adverse events or deaths occurred during the study. Adverse events were equally distributed between placebo and Aramchol doses, were
mild (with only one moderate adverse event) and the majority defined unrelated to Aramchol. The PK study provides additional safety data to further support
existing safety data from our non-clinical studies and our Phase I and Phase IIA clinical trials of Aramchol.
Pharmacokinetics of Single and Multiple Escalating Doses of Aramchol Administered under Fed Conditions in Healthy Chinese Volunteers (NCT
02803996)
In 2016, we performed the Chinese PK Study involving Chinese patients who are domiciled in the United States. We enrolled 64 patients in this
study, consisting of two parts. In part A, 32 subjects received a single escalating dose; Part B enrolled 32 subjects which received a multiple escalating dose.
Dr. Evelyn Darius served as the Study Investigator. After repeat dosing with 400 mg daily, the mean exposure over the dosing interval at steady state (AUC0-
24) in Chinese was about 1.7-fold higher than in non-Chinese and at the 600 mg dose-level the corresponding difference was about 1.5-fold. No safety signal
was identified in this study and the Sponsor deemed no changes are required in the enrollment of Chinese patients into the ARREST Study. Moreover, having
this Chinese PK Study data will not only give us a head start in future licensing discussions with potential Chinese partners for the development of Aramchol
in China but also provide important insights for the design of our future pivotal study.
Additional Non-clinical and Clinical Studies Required for Regulatory Submissions:
Toxicology Studies
Since the completion of the Phase IIA study, non-clinical toxicology studies have been conducted to support our ongoing clinical programs and
regulatory submissions. These studies were performed in compliance with the EMA’s ICH M3 (R2) guidelines by WIL Research, a global contract research
organization, at its facility in Holland. The toxicity program for Aramchol included repeat dose studies of up to six months in rats and up to nine months in
dogs by oral administration, the intended route of administration in the clinical trials and beyond. The dose level of 1000 mg/kg/day in rats and 1500
mg/kg/day in dogs, which is the maximal feasible dose in both species showed no-observed-adverse-effect-level, or NOAEL. There were no observations
noted in the rat study. The findings in the dog study were limited to changes in plasma lipids, including decreases in total blood cholesterol levels, LDL, HDL
and phospholipids, and a slight increase in the size of the adrenal glands, which were considered to be an extension of the primary pharmacology of Aramchol
and non-toxic effects, and skin scales from week 13 onwards in all Aramchol-treated groups, with a dose-related incidence. After six months this was not
accompanied by any microscopic alteration of the skin and therefore considered not toxicologically relevant. Results from the study show that after nine
months the presence of scales in all Aramchol-treated groups was accompanied by minor test item-related microscopic findings in the skin: Hyperkeratosis of
the epidermis, correlating to the scales, and keratin plugs in the hair follicles (in males at 750/500 and 1500 mg/kg). After a 12-week treatment-free recovery
period, fewer scales were noted and microscopically there was partial recovery. As these findings were minor and no clinical symptoms like scratching were
noted, these findings were considered not adverse.
54
Aramchol was non-mutagenic in vitro in the Ames test and chromosomal aberrations test, each of which is a test to determine whether the subject
chemical can cause mutations in the DNA of an organism. In addition, in bone marrow micronucleus test in male rats at a 2000 mg/kg oral dose (the
maximum recommended dose in accordance with ICH S2 (R1)), Aramchol was not clastogenic, meaning it did not give rise to or induce disruption or
breakages of chromosomes, nor was it aneugenic, meaning it did not cause the number of chromosomes in the nucleus of a cell to not be an exact multiple of
the monoploid number of a particular species.
Embryo-fetal development toxicity was assessed in rats and rabbits. No maternal or fetal development toxicity was observed in either species. The
NOAEL for maternal and development toxicity was at least 1000 mg/kg in rats and 750 mg/kg in rabbits (the maximum feasible dose in both species).
No maximum tolerated doses were reached in the studies. Over 50-fold safety margin exposure was achieved in dogs but not in rats. However, for
rats, at least three of the four ICH M3(R2) safety margin criteria were met, and for dogs all four criteria were met. Blood tests revealed a decrease in total
blood cholesterol levels, including LDL, HDL and phospholipids, and there was a slight increase in the size of the adrenal glands of the dogs, which WIL
Research assessed as a physiologic compensatory response to the decrease in blood cholesterol levels. WIL Research did not consider the decrease in blood
cholesterol levels or the physiologic response of the adrenal glands as a toxic effect, but rather as a pharmacodynamic effect, which is a biochemical and
physiological effect of the drug on the body. Based on the above, WIL Research concluded that the overall safety data for Aramchol is sufficient to support
the proposed Phase IIB clinical trial.
Our Phase IIB ARREST Study for Aramchol
We believe that Aramchol will demonstrate the effects previously observed in non-clinical and clinical studies on the three key pathologies of
NASH: steatosis, inflammation and fibrosis.
We believe that Aramchol has a robust effect on lipid metabolism and fibrosis. The phase IIa study confirmed an effect on steatosis and the ARREST
study is planned to repeat this finding in the targeted population. More important, the ARREST Study includes histology based secondary end-points that are
regulatory acceptable. Additionally, the ARREST Study should demonstrate the effect of Aramchol on the different components of NASH as well as fibrosis
and allow the planning of a pivotal phase.
In addition, we believe that the minimal dose of Aramchol has been identified and hope the ARREST Study will define the maximal effective dose
which should allow a pivotal phase with only one dose.
We submitted an IND application to FDA to initiate the ARREST Study, and hope to expand the scope of the IND in the future to conduct pivotal
Phase III clinical trials for NASH in the United States. The FDA cleared our IND application, allowing us to conduct the Phase IIB ARREST Study in the
United States. In September 2014, the FDA granted Fast Track designation status to Aramchol for the treatment of NASH. Fast Track designation may
accelerate the development process and may expedite the review of drugs that show promise in treating serious, life-threatening medical conditions for which
no other drug either exists or is as effective.
We are currently conducting our Phase IIB ARREST Study to evaluate the safety and effectiveness of two different doses of Aramchol for the
treatment NASH in OD patients. In order to be eligible to participate in our ARREST Study, patients must be affected by NASH, as diagnosed by a biopsy
centrally read (steatosis ≥1 + inflammation ≥1 + ballooning ≥1; Total activity NAS score of 4 or more), be overweight or obese as measured by a Body Mass
Indexbetween 25 and 40 or waist circumference between 88cm to 200cm for women, and between 102cm to 200cm for men, and who are pre diabetic or type
II diabetic. We target this specific population as it is at the greatest risk of developing NASH and its complications. We have recently generated data from
animal models that enable us to believe that Aramchol targets all three pathologies of the disease: steatosis, inflammation and fibrosis. Since we have included
patients with advanced fibrosis in the ARREST Study, we hope to be able to identify these effects in the ARREST Study patients. Patients are randomized
into one of three trial groups taking either one of two different once-daily oral doses of Aramchol or a placebo. The treatment part of the trial is designed to be
12 months in duration and patients completing this phase will be observed for a three month follow-up period. This trial is designed to enroll 240 patients in a
randomization ratio of 2:2:1 across approximately 70 clinical sites in the United States, Europe, Latin America, China and Israel. In February 2017, we
completed randomization of the ARREST Study with 248 randomized patients.
55
The primary endpoint of the 12-month double-blind portion of the trial is a statistically significant reduction in liver fat concentration as measured by
MRS, which is a surrogate endpoint that is generally accepted by the FDA with respect to Phase I and Phase II NASH studies.
Secondary endpoints of the trial include: (1) fibrosis improvement without worsening of NASH, defined as a decrease in CRN fibrosis by at least 1
stage; Worsening of NASH defined by an increase of Inflammation or Ballooning grades (2) improvement in NASH activity index, as measured by NAS or
SAF, without worsening fibrosis; Improvement in NAS as defined by at least two points improvement contributed by more than one parameter; Improvement
in SAF as defined by at least two points improvement in the SAF Activity score. Any stage increase in fibrosis is considered fibrosis worsening; (3) NASH
resolution without worsening of fibrosis defined as disappearance of ballooning (score = 0) together with disappearance of inflammation or the persistence of
mild inflammation (score= 0 or 1). Any stage increase in fibrosis is considered fibrosis worsening.
In communications received in response to our submission of an update to our IND in 2014, the FDA recommended that future clinical studies
should be discussed at an end-of-Phase II meeting, which could take place within three months from the date we complete the analysis of the results of our
ARREST Study, and at which time the trial results could be considered. The FDA communication further noted that we must discuss with the FDA a
methodology for our drug development. In light of the publication of the FDA and AASLD joint workshop guidance, and based on the Phase III trial designs
published to date by other companies drugs for NASH, we currently believe that we will likely be approved based on a design that includes a histology based
interim after 72 weeks of treatment which is intended to seek marketing approval while the study continues to a clinical end-point (predefined adverse liver-
related clinical events, including progression to cirrhosis). The failure to successfully complete any required post-market study could result in FDA
withdrawing approval for Aramchol.
Potential Phase III Program for Aramchol
The development work we have completed to date with regard to Aramchol was deemed appropriate for the initiation of a Phase IIB study by the
MHRA, BfArM and ANSM, in addition to FDA as noted above. Our ARREST Study design is in accordance with the study design recommended by the
MHRA, deemed acceptable by BfArM and deemed satisfactory by ANSM. BfArM and ANSM also confirmed, in minutes of each of their respective
scientific advisory meetings, that, if our ARREST Study is successful in reaching its primary endpoint, we may proceed to pivotal randomized, double-blind,
placebo-controlled, Phase III trial. We expect the primary endpoints of such trials to be histology endpoint based on NASH resolution and/or fibrosis
improvement. Like FDA, as noted above, the MHRA invited us to discuss the next steps in the development of Aramchol after we complete the analysis of
the results of our ARREST Study, at which time the data from the study will be considered.
Aramchol for the Treatment of Other Indications
In addition to the ARREST Study, we are exploring other indications for the use of Aramchol.
On December 1, 2015 we announced that our Investigational New Drug (IND) for the ARRIVE Study, a proof-of-concept clinical trial that will
evaluate the safety and efficacy of Aramchol in up to 50 patients with HIV-associated lipodystrophy and NAFLD, was allowed by FDA to proceed. The
ARRIVE Study is an investigator-initiated study sponsored by the University of California San Diego, where it will be conducted, and led by Professor Rohit
Loomba. The Study is designed as a randomized, double-blinded, allocation-concealed, placebo-controlled, proof-of-concept Phase IIA clinical trial, and will
evaluate either Aramchol at 600 mg or placebo for 16 weeks in up to 50 patients with HIV-associated lipodystrophy and NAFLD. Pre- and post-treatment
MRI-measured liver fat content and total body fat via dual energy x-ray absorptiometry (DEXA) will be compared. The primary end point of successful
therapy will be an improvement in hepatic steatosis as measured by MRI. Secondary endpoints will be an improvement in total body fat, metabolic profile,
and liver biochemistry. On March 1, 2016, we announced that we have randomized the first patient in the ARRIVE study. We believe that top line results will
be available in proximity to the ARREST Study data.
56
HIV is a major global health issue, with 35.3 million people living with the disease worldwide, 2-3 million of whom are in the United States and
Western and Central Europe. While effective combination antiretroviral therapy (cART) has resulted in a major reduction in acquired immunodeficiency
syndrome (AIDS)-related mortality overall, liver disease is now the second leading cause of death in patients with HIV, accounting for nearly 7-14% of all
deaths in this population. The prevalence of NAFLD is higher in individuals with HIV infection than in the general population. A recently conducted clinical
trial at the University of California San Diego by Professor Rohit Loomba, the largest such study to-date, compared age- and sex-matched patients with
primary NAFLD, with patients with HIV-associated NAFLD, and found that patients with HIV-associated NAFLD had significantly higher rates of definite
steatohepatitis (63% vs. 37%, P = 0.04), and more features of liver injury.
On November 13, 2014, we announced the first administration of Aramchol in a proof-of-concept Phase IIA clinical trial for the treatment of newly
formed cholesterol gallstones following bariatric surgery. However, due to poor patient recruitment and higher-priority clinical programs, we decided to
terminate the study on October 1, 2015. At the moment, we believe that it is unlikely that we will revive another study in cholesterol gallstones.
We also currently plan to conduct a Phase IIa, double blind Proof of Concept (PoC) Study to evaluate the safety and efficacy of Aramchol 600 mg
versus placebo in patients with Heart Failure with preserved Ejection Fraction (HFpEF), and a Phase I-IIa Study, proof of concept study, with a primary
objective of evaluating the safety and PK of Aramchol, followed by the assessment of the safety and efficacy based on hepatic fat content as measured by
magnetic resonance imaging-estimated proton density fat fraction (MRI-PDFF) in young patients with NAFLD. On September 22, 2016, we announced we
entered into an investigator initiated clinical trial agreement with the Regents of the University of California on behalf of its San Diego campus to perform
such study. See “Item 4.B. Information on the Company—Business Overview—Strategic Collaborations, Research Arrangements and Other Material
Agreements—NAFLD Juvenile Population.” for more information regarding the UCSD Agreement.
Topical Development
We selected to test Steamchol, a synthetic FABAC, a conjugate of stearic acid (C18:0) and colic acid with similar properties of Aramchol, in proof of
concept studies through a cosmeceutical route of development. Accordingly, on October 13, 2015, Steamchol received a CAS (Chemical Abstracts Service
Registry) name and number to allow its cosmeceutical development.
On January 1, 2016, Steamchol (formulated as topical cream) was successfully tested for safety assessment in 50 human subjects in a trial initially
lasting six weeks with two weeks of follow-up, by the Institute for Skin Research in Tel Aviv, Israel. Subsequently, on October 6, 2016, we initiated a proof-
of-concept 20-week, double blind, controlled study to evaluate the efficacy and tolerance of Steamchol in subjects with Acne Vulgaris. The study is being
conducted at the IRSI Institute (International Research Services Inc.) in Port Chester, New York, US. A total of 68 subjects are participating in the study. Top
line results are expected by June 2017.
Based on the results of this proof-of-concept study, we will evaluate and decide whether to also advance Aramchol for topical clinical studies.
Our Competitive Strengths
We believe our competitive strengths include our propriety family of molecules (FABACs) and our skilled, experienced, professional personnel,
which enables product development in an efficient and cost effective manner.
The competitive strengths of Aramchol – our lead product for NASH.
57
·
·
·
A once-daily oral drug that targets the main NASH pathology, steatosis, inflammation and fibrosis, currently under development
for NASH patients. We believe that the mechanism of action of Aramchol exerts its clinical effects, include its ability to reduce liver fat
content and its anti-fibrotic effects, shown in animal models for fibrosis, will be translate to effects on steatosis, inflammation and fibrosis
in the ARREST clinical trial. These effects will enable physicians to treat NASH patients from moderate to severe and in all stages of
NASH. It is important to note that Aramchol does not induce any notable side effects in animals dosed with high doses and in human in our
clinical trials. We believe that simple and convenient delivery through once-daily oral administration, its unique mode of action, targeting
all aspects of NASH pathologies, and significant safety profile position it well against the competition in the treatment of NASH. We
believe that such characteristics may also lead to Aramchol’s acceptance and adoption by the medical community and patients as an
alternative to the medical treatments used today, which are not approved by applicable regulatory authorities for treatment of NASH as their
efficacy has not been proven in adequate and well-controlled clinical studies. We believe Aramchol is well-positioned against drugs in
development for NASH, some of which may require intravenous delivery or may cause adverse events, such as itching or an increase in
LDL, which can be highly inconvenient for patients with chronic diseases, such as NASH, and may result in low patient compliance.
We recently discovered that Aramchol has a dual mode of action and it targets both steatosis and fibrosis. We previously demonstrated that
Aramchol down regulates SCD1 and therefor target steatosis. Using animal models for NASH and fibrosis, we discovered that Aramchol
targets also fatty acid oxidation and fibrosis. We have good reasons to believe that Aramchol up regulates glutathione which is well known
antioxidants that mediates better oxidation of fatty acid in the mitochondria and cause significant reduction of ROS. This results in reducing
liver damage.
Extensive knowledge and expertise in the treatment of liver diseases, the development of FABACs and working with lipid molecules.
We believe our management team, scientific advisors and personnel have extensive knowledge and experience in the treatment of liver
diseases, developing FABACs, such as Aramchol, for the treatment of liver diseases and working with lipid molecules, which due to their
special physiochemical characteristics, are difficult to synthesize, develop and work with. We believe that such knowledge and expertise
makes us competitive in the metabolic and liver diseases.
Non-invasive diagnostic tools for NAFLD/NASH and the assessment of Aramchol’s therapeutic responses. On July 8, 2015, we
announced that we entered into a Research, Option and License Agreement and a Share Purchase Agreement with One Way Liver
Genomics S.L., or OWL, which developed the proprietary OWL LIVERTest®, a test seeking to stratify NAFLD and NASH patients
according to their metabolomic profile. Under the License Agreement, we and OWL will work together during our ARREST Study to
develop a non-invasive blood test including metabolomic markers that could potentially predict therapeutic responses to Aramchol.
Our Strategy
Our strategy is to build a specialized biopharmaceutical company that develops, in a cost-effective manner, novel molecules from clinical stage to
Phase III readiness. We seek to create global partnerships with academic institutions and biotechnology or pharmaceutical companies to effectively
collaborate in developing a portfolio and ultimately out-license our products. Through this approach, we have successfully advanced Aramchol into various
stages of clinical development. Key elements of our strategy include:
·
·
Continuing to advance the development of Aramchol for the treatment of NASH. Our development of Aramchol for treatment of
NASH currently includes our ongoing Phase IIB ARREST Study. If this study is successful, the results will serve as a basis for potential
Phase III pivotal trial(s) in the United States, Latin America, Europe and Israel for the same indication. Assuming successful completion of
Phase III trial(s).
Exploring other indications for the use of Aramchol, which includes the ARRIVE Study, a proof-of-concept Phase IIA clinical trial that
will evaluate the safety and efficacy of Aramchol in up to 50 patients with HIV-associated lipodystrophy and NAFLD and potentially
others.
58
·
·
Establishing a development and commercialization partnerships for Aramchol in different geographies. We intend to out-license
Aramchol to a multinational pharmaceutical company that possesses experience, resources and infrastructure to execute pivotal trial(s),
regulatory approval and market launch. As part of this strategy, in July 28, 2016, we signed a license agreement with Samil Pharm Co., Ltd.,
for the commercialization of Aramchol in Korea.
Advancing existing collaborations, and seeking additional partnerships, for the discovery and validation of diagnostic tools and
biomarkers for the diagnosis of liver disease. We intend to advance our existing collaborations and strategic arrangements for the
discovery and validation of non-invasive diagnostic tools and biomarkers for the diagnosis of liver disease, including NASH. We are
currently collaborating with OWL, on the development of a non-invasive biomarker, which, if successful, may help to predict individual
responses to Aramchol for the treatment of liver diseases. OWL also granted us a right of first refusal, exercisable upon completion of our
ARREST Study, to enter into a business transaction with OWL regarding the commercial exploitation of the data generated during the
collaboration. In the future, we may seek additional collaborations of this nature.
·
In-license, develop or acquire additional drug candidates.
We believe that our strategy will increase the likelihood of advancing clinical development and potential commercialization of Aramchol in multiple
indications. By activating our pipeline expansion strategy, we believe we could extrapolate additional commercial potential, as well as de-risk our company
through reducing our reliance on the success of any one given trial or indication.
Strategic Collaborations, Research Arrangements and other Material Agreements
NAFLD Juvenile Population
On September 22, 2016, we entered into an investigator initiated clinical trial agreement, or the UCSD Agreement, with the Regents of the
University of California on behalf of its San Diego campus, or UCSD, to conduct a Phase I/IIA study, or the ARTISAN Study, entitled: “A Phase I-IIa Study
to Assess Safety, Tolerability, Efficacy, and Pharmacokinetics of Aramchol in a NAFLD Juvenile Population” (the “Protocol”). The ARTISAN Study
(ARamchol Trial to Improve Steatosis in Adolescent NAFLD) will be led by Jeffrey Schwimmer, MD, professor of pediatrics, UC San Diego School of
Medicine and Director, Fatty Liver Clinic, Rady Children’s Hospital, San Diego. The performance of the ARTISAN Study is subject to submission of the
Protocol to the U.S. FDA and receipt of FDA IND approval. There is no certainty that the FDA IND approval will be obtained. The ARTISAN Study is
currently expected to be initiated in the second half of 2017.
Pursuant to the terms of the UCSD Agreement, we shall provide our proprietary drug product candidate Aramchol, without cost, to conduct the study
as required pursuant to the Protocol and shall provide funds to conduct the ARTISAN Study over the duration of the study.
Under the UCSD Agreement, UCSD has granted us a non-exclusive, royalty-free license to use any UCSD or joint invention and ARTISAN Study
data for our internal research and development purposes. Further, UCSD grants us a time-limited first right to negotiate a commercial, royalty-bearing,
exclusive license, to make, use, and sell any patentable UCSD or joint invention conceived and reduced to practice in the performance of the research, for the
term of any patent thereon.
59
All rights, title and interest in ARTISAN Study data shall be the sole and exclusive property of UCSD; however, we shall be entitled to make use of
such ARTISAN Study data for legal purpose consistent with the informed consent, including publication and regulatory filings, after the earlier of the
publication of the ARTISAN Study data by UCSD or upon the expiration of a period of eighteen (18) months from the completion of the ARTISAN Study.
The Protocol and research design of the ARTISAN Study are the property of UCSD.
Either party may terminate the UCSD Agreement (i) upon thirty (30) days prior written notice to the other Party, in its sole discretion; (ii) upon
written notice to the other Party, if the terminating Party determines that termination of the ARTISAN Study is necessary for the safety of the ARTISAN
Study subjects; or (iii) upon the other party’s material breach if such party fails to cure such breach within thirty days after receiving written notice thereof.
Upon receipt of notice of early termination, UCSD will stop screening subjects for and enrolling subjects in the Study and will discuss in good faith a plan to
continue monitoring ARTISAN Study subjects as appropriate and determine an orderly winding down of the ARTISAN Study. Upon termination or
expiration of the UCSD Agreement, all CRFs outstanding must be completed and copies returned to us together with completed ARTISAN Study Drug
inventory and records, and all our confidential information. If the UCSD Agreement is terminated before completion of the ARTISAN Study, the parties shall
negotiate in good faith on the phase-out for ARTISAN Study subjects and subsequent treatment of ARTISAN Study subjects.
The UCSD Agreement also includes customary indemnification provisions.
Samil Pharma. Co., Ltd.
On July 28, 2016, we entered into a license agreement, referred to herein as the Samil Agreement, with Samil Pharma. Co., Ltd., or Samil, for the
commercialization of Aramchol (with the option to manufacture) in the Republic of Korea, or the Territory.
Under the terms of the Samil Agreement, the Company has granted Samil an exclusive licence, or the Samil License, for fatty liver indications
including NASH (the “Field of Use”) in the Republic of Korea (the “Territory”) to such information concerning Aramchol as may be required to support
Samil's applications for regulatory approvals (the “Licensed Information”) and the patents for the import, marketing, use, sale, offer for sale,
commercialisation and distribution (and, if the option is exercised, manufacture) of Aramchol in tablet form, or any other physical form as may be produced
or manufactured by or on behalf of Galmed or by a third party for Galmed and, if the option set out below is exercised, any products within the Field of Use,
the development, manufacture or sale of which is based, in whole or in part, on, or involves the use of, the Licensed Information or covered under any patent
(the “Product”).
The Samil License shall remain in force with respect to each Product (if the Samil Agreement is not early terminated) until the later of: (i) the date of
expiry in the Territory of the last of any patent covering such Product or any formulation, dosing or administration form thereof; and (ii) the date of expiry of
a period of 20 years commencing on the date of first commercial sale by Samil or a sublicensee of such Product in the Territory.
Upon the signing of the Samil Agreement, Samil paid the Company a gross upfront fee of approximately $2.1 million. Samil has also agreed to pay
additional clinical and regulatory-based milestone payments, which may aggregate to additional $6.0 million, as well as tiered, double-digit royalties payable
on sales (lower if sales of a generic equivalent commences in the Territory).
Pursuant to the terms of the Samil Agreement, following the first achievement of US$25 million of net sales in any calendar year following the first
commercial sale of the Product in the Territory, Samil shall have the option to request that the Licensed Information include methods for the formulation of
Aramchol from its active pharmaceutical ingredient, or API, to allow for the manufacture of Aramchol by Samil; provided, however, that we shall have the
option, to widen the definition of the Licensed Information as aforesaid at any time.
60
We shall be entitled, at our option: (i) to modify the Samil License with respect to any Product so that it is non-exclusive only; or (ii) to terminate the
Samil License hereunder, with respect to any Product if: (a) a first purchasing order from Samil for at least one Product shall not have been placed by 6
months following the grant of the Korean Ministry of Food and Drug Safety new drug approval; or (b) commercial sale of such Product having commenced
and either (i) there shall be a period of 1 year during which no sales of any Product shall take place, or (ii) within 1 year of such commencement, aggregate
sales of Products shall not have reached a reasonable level, as determined by the joint development committee, in each case, except as a result of force
majeure or other factors beyond the control of Samil. Further, we shall be entitled to terminate the Samil Agreement if Samil challenges the validity of any of
the patents. If any such challenge is unsuccessful, Samil shall (in addition to our right to terminate) pay us liquidated damages in the amounts of
US $8,000,000. Either party may terminate the Samil Agreement (i) upon the other party’s material breach if such party fails to cure such breach within 30
days, or, in the case of failure by Samil to pay any amount due from Samil to us pursuant to or in connection with the Samil Agreement 14 days after
receiving written notice thereof, or (ii) upon customary events such as the granting of a winding-up order if such order or act is not cancelled within 60 days.
In the event that we do not achieve the primary endpoint as defined in the study protocol (the “Successful Completion”) of the ARREST Study, we
shall as soon as practicable notify Samil of the non-achievement of such Successful Completion, and within 60 days thereof, notify Samil in writing either: (i)
that we have decided not to develop the Licensed Information further for the Field of Use (“Cessation Notice”), or (ii) that we intend to continue with such
development notwithstanding the non-achievement of such Successful Completion (“Licensor Continuation Notice”). Also, in the event that we do not
achieve the Successful Completion of the potential Phase III Study, we shall, as soon as practicable, notify Samil accordingly (“Notice of Non-Success”).
Samil shall thereafter have the option, by notice in writing served to us within 45 days of Samil's receipt of either a Cessation Notice, a Licensor Continuation
Notice or a Notice of Non-Success, as applicable, to indicate its intention either: (i) to terminate the Samil License, or (ii) to continue research and
development of the Licensed Information in the Field of Use in the Territory. In the event Samil shall serve a Licensee Continuation Notice following the
service of a Cessation Notice or a Notice of Non-Success, any such continuation by Samil shall be subject to the entry by Samil into a written agreement with
us as to the terms and conditions which would govern such continued research and development, which would be carried out according to Samil's own
development plan and at its sole expense. In the event Samil serves a Licensee Continuation Notice following the service of a Licensor Continuation Notice
(“Agreed Continuation”), the Samil Agreement shall continue in accordance with its terms.
Additionally, in the event of an Agreed Continuation following non-achievement of Successful Completion of the ARREST Study, Samil shall, for a
period of 90 days following the date of written notification to it by us of such Successful Completion or following the date of Agreed Continuation following
non-achievement of Successful Completion, have the option to require that the Territory be extended to include Vietnam, or the Extension Option. In the
event that Samil exercises its Extension Option, the parties shall conduct negotiations in good faith for up to 30 days thereafter in order to agree on milestone
payments which would replace those set out in the Samil Agreement. In the event that agreement is not reached in such regard within such period, the
Extension Option shall terminate.
Microbiome
On June 30, 2016, we entered into a research and option agreement, referred to herein as the Yeda Agreement, with Yeda Research and Development
Co. Ltd, or Yeda, the commercial arm of the Weizmann Institute of Science, to assess the effects of our proprietary molecule, Aramchol, on the human gut
microbiome for the treatment of fatty liver disease (the “Research”). The Research is to be performed in collaboration with Prof. Eran Segal and Dr. Eran
Elinav from the Weizmann Institute of Science (together, the “Scientists”).
Under the terms of the Yeda Agreement, at any time until the expiration of a period of 120 days from the our receipt of the final Research report, or
the Notification Period, we have the right to notify Yeda that we wish to enter into exclusive negotiations with Yeda to complete a license agreement to
commercialize (i) a diagnostic and/or prognostic tool for Aramchol and/or (ii) a diagnostic and/or prognostic tool in the field of liver disease (the “Option”).
The negotiation period will not exceed 120 days, or the Negotiation Period.
61
All data generated in the course of the performance of the Research that relates to the effects of Aramchol on the microbiome, or the Data, shall be
our property. Yeda, Weitzman Institute of Science and the Scientists shall have the right to further research and analyze the Data, and we grant to Yeda a fully-
paid up, irrevocable, perpetual, non-exclusive license to make use of the Data for such purpose. Results in respect of such research and analysis in and as
relating to a diagnostic and/or prognostic tool in the field of fatty liver disease and cholestatic diseases as well as any tool identifying responders/non-
responders to Aramchol (“Additional Results”), shall be subject to the Option. In connection to the Additional Results, the Option shall be in force until the
later of (i) the expiry of the Notification Period; and (if applicable): (ii) the expiry of the Negotiation Period (the “Additional Result Period”); provided that, if
an Additional Result shall be disclosed by the Scientists to Yeda at any time prior to the expiry of the Additional Result Period the corresponding terms of the
Option (including the provision for a full 120 day negotiation period and as relating to termination) shall apply.
Additionally, subject to the Option, all results discovered in the course of, or arising from, the performance of the Research, excluding the Data
(except to the extent covered or claimed in any of our patents or patent applications in effect or existence as June 30, 2016) (the “Research Results”) and all
patent applications or applications for certificates of invention covering the Research Results or which may be granted thereon, including inventive discovery
resulting from the Data, shall be the property of Yeda.
The Yeda Agreement shall terminate upon the occurrence of the earlier of the following: (i) the date of expiry of the Notification Period, or earlier if
the date we notify Yeda that we do not wish to receive a License; (ii) if a notice has been given by us to Yeda, then upon the earlier of: (a) the date of
execution of a License Agreement; (b) 12 months after the date of expiry of the Negotiation Period, in the event that the parties fail to agree upon and execute
a License Agreement. Either party may terminate the Yeda Agreement (i) upon the other party’s breach if such party fails to cure such breach within 45 days
after receiving written notice thereof, or (ii) upon customary events such as insolvency or bankruptcy if such order or act is not cancelled within 60 days.
We shall be entitled to effect publication of the Data at our discretion. Any publications that Yeda or the Scientists shall wish to make relating to the
Research Results shall be coordinated in advance with us.
To date, we decided to postpone the initiation of the microbiome Research as a standalone research. One of the options we are currently considering
is to combine this short one month study as an exploratory endpoint into one of our planned clinical studies.
Vitamin D
On May 3, 2016, we signed an investigator initiated clinical trial agreement, referred to herein as the MS Agreement, with the Icahn School of
Medicine at Mount Sinai, or Mount Sinai, to conduct a Phase IIA Study entitled: “A Placebo-controlled Single-blinded Study of Aramchol with Supplemental
Vitamin D in Patients with Vitamin D Deficiency and Nonalcoholic Fatty Liver Disease (NAFLD) and Fibrosis”, or the Vitamin D Study.
Pursuant to the terms of the MS Agreement, we shall provide our proprietary drug product candidate Aramchol and shall provide funds to conduct
the Vitamin D Study over the duration of the Vitamin D Study. Under the MS Agreement, Mount Sinai grants us a worldwide, perpetual, irrevocable, fully
paid up, royalty-free, non-exclusive, non-sublicensable (except to affiliates) license to use any intellectual property generated or first conceived and reduced
to practice in performance of the Vitamin D Study using Aramchol during the term of the MS Agreement, whether jointly or solely by employees, agents,
and/or independent contractors of Mount Sinai (the “Invention”), for our internal research and development purposes, excluding patent applications (and any
patents resulting therefrom) claiming Inventions that we have not requested that Mount Sinai defend on our behalf. In addition, Mount Sinai further grants us
a worldwide, perpetual, irrevocable, fully paid up, royalty-free, non-exclusive, non-sublicensable (except to affiliates) license to make, use, sell, offer for sale
and import any Inventions that are new formulations or improvements or derivatives of Aramchol, provided that such license shall be subject to minimum
licensing terms, including provisions concerning use of name, indemnification, insurance, patent infringement and limited warranty. Further, in consideration
for the payment for intellectual property expenses as details above, Mount Sinai grants us an exclusive option to negotiate a fee, milestone, and/or royalty
bearing an exclusive license to practice Mount Sinai’s rights in Inventions, including the right to make, use, sell, offer for sale and import any such Inventions
claimed or otherwise included therein, with respect to patent applications filed at our request. If the parties fail to execute such license agreement within eight
months (extendable upon mutual agreement of the parties) after our provision of notice of exercise of the option, or if we fail to make payment for intellectual
property expenses as provided for therein, then Mount Sinai may license such intellectual property to any party upon terms that Mount Sinai deems
appropriate, without any further obligation to us.
62
All data and results from the Vitamin D Study, or the Study Data, shall be the property of Mount Sinai; however, we shall be entitled to make use of
such Study Data for any legal purpose after the earlier of the publication of the Study Data by Mount Sinai or twelve months after disclosure of the Study
Data by Mount Sinai; provided, however, that in the event any Study Data materially contributes to any regulatory approval of any of our products combined
with Supplemental Vitamin D3, we agree to negotiate a reasonable compensation appropriate for Mount Sinai's contribution, such amount not to exceed two
hundred and fifty thousand U.S. Dollars ($250,000).
Either party may terminate the MS Agreement (i) upon the other party’s breach if such party fails to cure such breach within thirty days after
receiving written notice thereof, or (ii) if the authorization and approval to perform the Vitamin D Study in the United States is withdrawn by the FDA or, if
the emergence of any adverse reaction or side effect with the drug administered or the device employed in the Vitamin D Study is of such magnitude or
incidence in the opinion of either the Company or Mount Sinai to support termination. We may terminate the MS Agreement for convenience upon thirty
days’ prior written notice. Further, either party may terminate the MS Agreement upon customary events such as insolvency or bankruptcy. Upon any
termination, (i) Mount Sinai will stop screening and enrolling subjects and will reasonably cooperate with us to continue monitoring Vitamin D Study subjects
and shall reasonably cooperate with us to provide for an orderly winding down of the services provided under the MS Agreement, and (ii) all case report
forms outstanding must be completed and returned to us together with completed product inventory and records.
We shall indemnify Mount Sinai from and against all liabilities Mount Sinai may suffer to the extent directly arising from (i) our negligence or
misconduct in the manufacture of any study drugs or devices provided by us to Mount Sinai for use in the Vitamin D Study; (ii) the exercise of the license
rights granted to us, subject to customary exclusions.
Recently published data from other short term fibrosis clinical studies and certain internal drug related studies we performed led us to reconsider the
design of the Vitamin D Study. Consequently, we decided to put the initiation of this Vitamin D Study on hold until we have further histological results, which
will be available when the ARREST Study data is published.
OWL
On July 8, 2015, we entered into a Research, Option and License Agreement, or the OWL License Agreement, with OWL, for the development of a
non-invasive, blood-based complimentary diagnostic tool, which we believe could increase the likelihood of success of our Phase III trials and facilitate the
market adoption of Aramchol. Pursuant to the terms of the OWL License Agreement, we have partially funded the research and development of the
diagnostic tool in the amount of Euro 437,000. Subject to development under the OWL License Agreement, we have an option to exclusively license from
OWL a complimentary diagnostic tool for NASH using Aramchol, or the OWL License Agreement Option, in consideration for the payment of a 10% royalty
to OWL on annual net sales of the complimentary diagnostic product, exercisable by written notice to OWL at any time during the period commencing on
July 8, 2015 and ending on the earlier of (I) December 31, 2016; or (II) the completion of the ARREST Study (the “Option Period”). In addition, if OWL
develops any other complimentary diagnostic tool for NASH not using Aramchol, it will pay us a royalty from revenues. Concurrently with the OWL License
Agreement, we have entered into a Share Purchase Agreement, or the OWL SPA, pursuant to which we undertook to invest Euro 175,000 in OWL, subject to
certain specified milestones, in exchange for the issuance by OWL of such number of common shares that result from dividing our investment amount by the
price per share (the “Investment”). In addition, under the OWL SPA, OWL has granted us an option which will allow us to invest up to €1,000,000 (the “First
Option”) at the higher of (i) the OWL company valuation in an equity financing (or series of related financings) of at least €1,000,000 that takes place at the
same time as the exercise of the First Option; or (ii) a 15% premium to OWL's valuation in the most recent equity investments of at least €1,000,000 (the
“Baseline Valuation”). The First Option will expire at the earlier of (i) an investment by a third party in OWL in excess of €1,000,000, or (ii) the completion
of the ARREST Study in our reasonable opinion. Furthermore, we have the option to purchase additional shares up to 19.9% of OWL (the “Second Option”)
at the higher of (x) the OWL company valuation in an equity financing (or series of related financings) of at least €2,500,000 that takes place at the same time
as the exercise of the Second Option; (y) at a 15% premium to OWL's valuation in the most recent equity investment of at least €2,500,000; or (z) the
Baseline Valuation. The Second Option will expire at the earlier of (A) the completion of a third party investment in OWL in excess of €2,500,000, or (B) one
year following the successful completion of the ARREST Study in our reasonable opinion. Moreover, pursuant to the OWL SPA, in the event OWL issues
new common shares or securities convertible into common shares, except in the event of customary curve outs (the “New Securities”), we have an option to
purchase up to our pro-rata share of the New Securities for the price and on the same terms as the most senior class of participating shareholders, upon our
notification to OWL within 21 days of OWL's notification of their intention to issue New Securities (the “Preemptive Right”). This Preemptive Right shall
survive termination of the OWL SPA, provided that either the Investment or the exercise of the First option or the Second Option has taken place. On
December 31, 2016, the Option Period expired and the parties are actively negotiating an extension to the Option Period.
63
Upon exercise of the OWL License Agreement Option, we will own all rights, title and interest in and to (i) the complimentary diagnostic tool for
NASH using Aramchol, excluding serum and plasma markers developed by OWL using proprietary methods and any of the OWL patents, OWL's know-how,
and any other results of whatsoever nature, which are discovered, developed or invented in the course of, or directly arising from, the performance of the
Research, excluding our technology (“Research Results”) which is owned by OWL; (ii) the complimentary diagnostic tool for NASH using Aramchol
intellectual property; (iii) all results and intellectual property pertaining to (a) our technology, (b) markers or other diagnostics for use in connection with liver
diseases and/or cholesterol gallstones and/or any other indications utilizing Aramchol and/or any other synthetic fatty-acid/bile conjugates or FABACs owned
by us, (c) metabolomics markers predicting therapeutics or safety response of Aramchol; or (iv) any additional markers improving NASH patient selection for
treatment with Aramchol that are generated, discovered, reduced to practice and/or arising in the course of and/or from the performance of any research,
services and/or development activities by or on behalf of or for us (including by OWL hereunder), excluding research results, and including any regulatory
filing or approval (if any) filed or obtained by us or any of our affiliates in respect of the OWLiverGAL kit and any other product, kit, device, material,
process, method, activities or service that incorporates, uses, or is reliant upon the licensed technology (the “Licensed Technology Product”), and all
communications with regulatory authorities, and any data, information or document covered by data protection or data exclusivity, production processes,
standard operating procedures, subcontractors’ information and other technical information required for the sale and/or commercialization of the Licensed
Technology Products, test protocols and final reports of any testing or studies with respect to the Licensed Technology Products.
Either party may terminate the OWL License Agreement (i) upon the other party’s breach if such party fails to cure such breach within 60 days after
receiving written notice thereof; or (ii) upon customary events such as the granting of a winding up order or upon the appointment of a temporary or
permanent liquidator or receiver if such order or act is not cancelled within 60 days. We may terminate the OWL License Agreement for any reason upon 30
days’ prior written notice. Further, OWL may terminate the OWL License Agreement upon 30 days' prior written notice, in the event that within 18 months of
receipt of the required regulatory approval to market and sell the first Licensed Technology Product in the U.S, there has not been a first commercial sale,
unless such failure or delay is caused by (i) force majeure; or (ii) the requirements of a regulatory or other governmental authority, any contract manufacturer,
or due to any market shortage; or (iii) a significant technological and/or scientific barrier.
University of California, San Diego
In February 2015, we entered into an Investigator Initiated Trial Agreement with the University of California, San Diego to conduct a Phase IIA
Study for the treatment of HIV-associated with Lipodystrophy and NAFLD, or the ARRIVE Study. The ARRIVE Study principal investigator is Dr. Rohit
Loomba, a member of our scientific advisory board. The ARRIVE Study is a randomized, double-blinded, allocation-concealed, placebo-controlled, proof-of-
concept Phase IIA clinical trial. The study will evaluate up to 50 patients with HIV-associated lipodystrophy and NAFLD, with either Aramchol at 600 mg or
placebo for 16 weeks. Pre- and post-treatment MRI-measured liver fat content and total body fat via DEXA will be compared. The primary end point of
successful therapy will be an improvement in hepatic steatosis as measured by MRI. Secondary endpoints will include an improvement in total body fat,
metabolic profile, and liver biochemistry. On December 1, 2015, we announced that the FDA has cleared our IND application for the ARRIVE Study. Top
line results are expected in proximity to the ARREST Study data.
64
Perrigo API Ltd.
On January 28, 2015, the Company entered into a Manufacturing Services Agreement, or the Perrigo Agreement, with Perrigo API Ltd., or Perrigo, a
subsidiary of Perrigo Company plc, for, among other things, the large-scale production of Aramchol API and the scale-up and manufacturing process
optimization for large-scale production of the Aramchol API. Pursuant to the Perrigo Agreement, Perrigo will provide manufacturing process, optimization
services for large-scale production of the Aramchol API, manufacture the Aramchol API pursuant to cGMPs and perform additional development services
regarding scale-up and manufacturing optimization for the Aramchol API. In consideration for the services to be provided by Perrigo, the Company agreed to
pay in accordance with the Perrigo Agreement a maximum aggregate amount of approximately $3.6 million U.S. dollars to Perrigo. The Perrigo Agreement
also provides Perrigo, under certain circumstances, with the option to manufacture commercial supplies of the Aramchol API in the future. To date, Perrigo
has manufactured 3 pilot batches of approximately 70 kg of Aramchol API. However, while the material obtained was of appropriate quality and produced
under GMP, it resulted in higher manufacturing costs than originally anticipated. Therefore, additional research and development work pertaining to the scale-
up and optimization of the process is currently being done by two other CRO's under cGMP and cGLP, in order, inter alia, to simplify, increase yields and
improve the volume capacity of the manufacturing process in attempt to achieve the target price. Based on the results of the additional research and
development work, we will decide how to progress with the future manufacture of Aramchol API.
Itamar Medical Ltd.
On September 29, 2014, we purchased 60 EndoPAT™ devices and accessories from, and entered into a collaboration with, Itamar to include an
assessment of endothelial, or arterial, function in our ARREST Study. The purchase price for the EndoPAT™ devices and accessories was approximately
$750,000.
Aventis Pharma Deutschland GmbH
In September 2002, we entered into an agreement, which we refer to as the Aventis Agreement, with Aventis, which merged with and into Sanofi
S.A., in connection with the settlement of court proceedings regarding an invention covered by Israeli patent application 123998 and PCT/IL99/00173. The
invention relates to certain FABACs, pharmaceutical compositions containing FABACs and the use of FABACs for dissolving cholesterol gallstones in bile
and preventing the formation thereof, as well as for the prevention and reduction of atherosclerosis, or the hardening of the arteries. Such court proceedings
resulted from a claim filed by us and Prof. Tuvia Gilat, our founder, in the Tel Aviv District Court seeking a declaratory judgment that Prof. Gilat was the sole
inventor of the invention and the owner of all rights in and to the invention and the patent application with respect thereto, and that neither Aventis nor anyone
on its behalf has any rights in or to the invention or such patent application. We filed the claim with Prof. Gilat based on assertions by Aventis that it had
certain rights to the invention as a result of the participation of one of its employees in the discovery of the same. Under the Aventis Agreement, Aventis
agreed that we had the exclusive worldwide right to commercialize the invention and we agreed to pay Aventis a royalty of 10% in respect of all income that
we or our affiliates may receive from the commercialization of such invention for the prevention and treatment of cholesterol gallstones (less certain standard
deductions, including taxes, credits, allowances, rebates, freight and insurance costs), for as long as there is a valid patent or pending patent application
covering such invention. Once all our valid patents covering the invention expire, which will occur in 2018, and provided that one of Aventis’ other patents
that covers an aspect of the invention is still valid and has received marketing approval prior to the expiration of all our patents covering the invention, the
royalty will be reduced to 5%.
The Aventis Agreement does not contain any diligence obligations that require us to exert any special efforts to develop a product for the prevention
and treatment of cholesterol gallstones, nor are we contractually required to meet any milestones in respect of the development or commercialization of the
invention. We have not yet paid, nor do we currently owe, any amounts to Aventis under the Aventis Agreement. Additionally, after experiencing poor patient
recruitment and due to higher-priority clinical programs, at this point in time we have decided not to pursue the indications of cholesterol gallstones and we
believe that it is unlikely that we will revive another study in cholesterol gallstones.
Unipharm
On October 7, 2000, in connection with a certain share subscription agreement, we sent a letter to Unipharm Ltd., or Unipharm, pursuant to which
we agreed to negotiate the grant of an exclusive license to Unipharm with respect to the use of patents within our first patent family covering the composition
of matter of Aramchol within Israel on to-be-agreed upon terms and conditions. The letter stated that, if granted, such license would at all times be subject to
our best interests, as determined in our sole discretion, and all approvals and proceedings required by agreement or by law. As of the date hereof, no such
definitive agreement has been executed with regard to this matter and at this stage we have no intention to pursue such an agreement. The letter is silent as to
term, termination and whether or not it is binding.
65
Competition
The pharmaceutical industry is characterized by rapidly evolving technology, intense competition and a highly risky, costly and lengthy research and
development process. Adequate protection of intellectual property, successful product development, adequate funding and retention of skilled, experienced
and professional personnel are among the many factors critical to success in the pharmaceutical industry.
Other companies, including, Intercept Pharmaceuticals, Inc. Gilead Sciences, Inc., and Genfit S.A., have molecules currently in Phase III clinical
development; Allergan (through its acquisition of Tobira Therapeutics Inc.), Shire, and Novartis (through the acquisition of Conatus Pharmaceuticals Inc.)
have molecules in Phase IIB clinical development for the treatment of NASH and the fibrosis associated therewith. There are a host of other potential
competitors in earlier stages of development relative to us for the treatment of NASH including, but not limited to, Galectin Therapeutics Inc., AstraZeneca,
Bristol-Myers Squibb, and Novartis.
We believe that Aramchol offers important potential advantages over other drugs in development that could enable Aramchol, if approved for these
indications, to capture meaningful market share. We believe that Aramchol’s ability (as observed in our non-clinical and clinical studies to date) to reduce
liver fat content without observable adverse side effects, which we believe may prove to have an anti-fibrotic effects, as well as a direct effect on fibrosis (via
collagen production from human stellate cells) as shown in our non-clinical studies, and convenient once-daily oral administration, position Aramchol well
against the potential competition in the NASH market and make it a potentially valuable drug for the treatment of liver diseases.
Notwithstanding the foregoing, see “Item 3. Key Information—Risk Factors—Risks Related to Our Business, Industry and Regulatory Requirements
—Our market is subject to intense competition. If we are unable to compete effectively, Aramchol or any other product candidate that we develop may be
rendered noncompetitive or obsolete.”
Intellectual Property and Patent Strategy
The proprietary nature of, and protection for, our product candidates and our discovery programs for new indications, processes and know-how are
important to our business. We own patent rights to Aramchol in various jurisdictions worldwide, including within and outside of Israel. We have sought patent
protection in the United States and internationally for Aramchol and our discovery programs, and any other inventions to which we have rights, where
available and when appropriate. The term of U.S. Patent No. 7,501,403, covering the use of Aramchol for the treatment of fatty liver, has been extended due
to patent term adjustments of 567 days, resulting in an effective expiration date of November 3, 2023.
Our policy is to pursue, maintain and defend patent rights, whether developed internally or licensed from third parties, and to protect the technology,
inventions and improvements that are commercially important to the development of our business. We also rely on trade secrets that may be important to the
development of our business.
Patent Portfolio for Aramchol (First-in-Class Synthetic FABAC)
The patent portfolio for Aramchol contains patents and pending patent applications directed to composition of matter, manufacturing methods and
methods of use. As of March 16, 2017, the latest practicable date for inclusion in this annual report, we own six U.S. patents, and corresponding foreign
patents and pending patent applications, as detailed below. We have also recently filed a PCT patent application for second generation FABAC compounds.
66
The first patent family discloses and claims FABACs, including Aramchol, as well as methods for preventing or dissolving cholesterol gallstones in
bile and reducing or preventing arteriosclerosis using FABACs. This patent family includes three issued U.S. patents and an issued European patent that was
validated in Austria, Belgium, Cyprus, Denmark, Finland, France, Germany Greece, Ireland, Italy, Latvia, Lithuania, Luxembourg, Monaco, Netherlands,
Portugal, Romania, Slovenia, Spain, Sweden, Switzerland and the United Kingdom. Corresponding patents have been granted in Australia, Brazil, Canada,
China, Czech Republic, Eurasia, Hungary, Indonesia, Israel, Japan, Korea, Mexico, New Zealand, Norway, Poland, Turkey and the Ukraine. If the appropriate
maintenance, renewal, annuity or other governmental fees are paid, the non-extended patent term for this patent family is due to expire on March 25, 2019,
with the exception of the Israeli patent, which is due to expire on April 8, 2018.
The second patent family discloses and claims additional FABACs with different conjugation moieties, as well as the use of these and the
compounds disclosed in the first patent family above, including Aramchol, in the treatment of fatty liver, reduction of serum cholesterol and treatment of
hyperglycemia and diabetes. This patent family includes a U.S. patent directed to the treatment of fatty liver a U.S. patent directed to reduction of serum
cholesterol by administering additional forms of FABACs, and a U.S. patent (Continuation-in-Part) directed to the treatment of hyperglycemia and diabetes.
This patent family also includes two European patents, one patent which was validated in Austria, Belgium, Cyprus, Denmark, Finland, France, Germany
Ireland, Italy, Luxembourg, Monaco, Netherlands, Portugal, Spain, Sweden, Switzerland, Turkey and the United Kingdom, and the second patent which was
validated in Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Netherlands, Spain, Sweden, Switzerland, Turkey and the United Kingdom.
The family also includes patents in Australia, Canada, China, Czech Republic, Eurasia, Indonesia, Japan, Korea, Israel, Mexico, New Zealand, Norway,
Poland, Hungary and the Ukraine. A foreign patent application is pending in the Czech Republic. If the appropriate maintenance, renewal, annuity or other
governmental fees are paid, the non-extended patent term for this patent family is due to expire on April 15, 2022, with the exception of the Israeli patent,
which is due to expire on April 17, 2021. The terms of the U.S. patents in this family have been extended due to patent term adjustments of 567 days for U.S.
Patent 7,501,403, which is directed to the treatment of fatty liver, and 24 days for U.S. Patent 8,110,564, which is directed to reduction of serum cholesterol,
and 356 days for U.S. Patent 8,975,246, which is directed to disorders associated with altered glucose metabolism or insulin action.
A third patent family that is due to expire on February 1, 2030, discloses the use of FABACs in the treatment, prevention and inhibition of
progression of Alzheimer’s Disease, cerebral amyloid angiopathy and other brain diseases characterized by amyloid plaque deposits. This patent family
includes an issued European patent that was validated in France, Germany, Switzerland and the United Kingdom.
A fourth patent family discloses and claims second generation FABAC compounds. This patent family includes a pending U.S. patent application as
well as foreign patent applications in Australia, Brazil, Canada, China, Europe, Hong Kong, India, Israel, Japan and Korea.
A fifth patent family, including one PCT patent application, discloses and claims compositions comprising second generation FABAC compounds.
A sixth patent family covers the use of Aramchol for the treatment of lipodystrophy. This patent family includes a pending U.S. patent application
and applications in Australia, Canada, China, Europe, India, Israel and Japan.
The seventh and an eighth patent families, each including one Israeli patent application and one PCT patent application, and patent families nine to
twelve, each including one U.S. Provisional patent application, cover additional therapeutic uses of Aramchol.
Patent families thirteen and fourteen, each including pending U.S. and foreign patent applications, are directed to topical uses of FABAC
compounds.
It is possible that the term of the patents issued in the United States within our first patent family, which includes the composition of matter patents,
may be extended up to five additional years under the provisions of the Drug Price Competition and Patent Term Restoration Act of 1984, or the Hatch-
Waxman Act (the longest possible extended patent term being five years from November 3, 20123). Patent term extension or supplementary protection
certificates may be available in certain foreign countries upon regulatory approval. Independent of patent term extensions, five years of data exclusivity will
be provided for this patent in the United States automatically from the day Aramchol receives regulatory approval, if it is approved, in the United States. The
data exclusivity is solely for the indication tested, in this case presumably NASH. If the Company pursues commercialization of Aramchol in other
jurisdictions, longer periods of data exclusivity may pertain.
67
Our commercial success will depend in part on obtaining and maintaining patent protection and trade secret protection of our current and future
product candidates and the methods used to develop and manufacture them, as well as successfully defending these patents against third-party challenges. Our
ability to stop third parties from making, using, selling, offering to sell or importing our products depends on the extent to which we have rights under valid
and enforceable patents or trade secrets that cover these activities. We believe that our patents provide broad and comprehensive coverage for the use of
Aramchol for the treatment of certain liver diseases. However, the patent positions of biopharmaceutical companies, such as ourselves, are generally uncertain
and involve complex legal and factual questions. Our ability to maintain and solidify our proprietary position for the technology will depend on our success in
obtaining effective claims and enforcing those claims once granted. There is no certainty that any of the Company’s pending patent applications will result in
the issuance of any patents. The issued patents and those that may be issued in the future, may be challenged, narrowed, circumvented or found to be invalid
or unenforceable, which could limit our ability to stop competitors from marketing related products or the length of term of patent protection that we may
have for our products. In addition, our competitors may independently develop similar technologies or duplicate any technology developed by us, and the
rights granted under any issued or future patents may not provide us with any meaningful competitive advantages against these competitors. Furthermore,
because of the extensive time required for development, testing and regulatory review of a potential product, before any of our products can be
commercialized, any related patent may expire or remain in force for only a short period following commercialization, thereby reducing any advantage of
such patent. For more risks associated with the protection of our licensed intellectual property, see “Item 3. Key Information—Risk Factors—Risks Related to
Our Intellectual Property.”
Trade Secrets
In addition to patents, we rely on trade secrets and know-how to develop and maintain our competitive position. Trade secrets and know-how can be
difficult to protect. We seek to protect our proprietary processes, in part, by confidentiality agreements and invention assignment agreements with our
employees, consultants, scientific advisors, contractors and commercial partners. These agreements are designed to protect our proprietary information. We
also seek to preserve the integrity and confidentiality of our data, trade secrets and know-how by maintaining physical security of our premises and physical
and electronic security of our information technology systems. While we have confidence in these individuals, organizations and systems, such agreements or
security measures may be breached, and we may not have adequate remedies for any breach. In addition, our trade secrets may otherwise become known or
be independently discovered by competitors or others.
Seasonality
Our business and operations are generally not affected by seasonal fluctuations or factors.
Raw Materials and Suppliers
We believe that the raw materials that we require to manufacture Aramchol are readily available commodities commonly used in the pharmaceutical
industry.
Manufacturing
We do not own or operate manufacturing facilities for the production of our product candidates, nor do we have plans to develop our own
manufacturing operations in the foreseeable future. We currently rely on third-party contract manufacturers for all of our required raw materials, API and
finished product for our non-clinical research and clinical trials, including our ARREST Study. We do not have long term agreements with any of these third
parties. We also do not have any current contractual relationships for the manufacture of commercial supplies of our product candidate if it is approved;
however, the Perrigo Agreement (as described herein) provides Perrigo with the option to negotiate an exclusive commercial contract for the manufacture of
commercial supplies of the Aramchol API in the future for a minimum term of five years. If our product candidate or future product candidates are approved
by any regulatory agency, we intend to enter into agreements with a third-party contract manufacturer or collaboration partner and one or more back-up
manufacturers for the commercial production of those products. Development and commercial quantities of any products that we develop will need to be
manufactured in facilities, and by processes, that comply with the requirements of the FDA and the regulatory agencies of other jurisdictions in which we are
seeking approval. We currently employ internal resources to manage our manufacturing contractors. The relevant manufacturers of our drug products for our
current non-clinical and clinical trials have advised us that they are compliant with both cGMP and current Good Laboratory Practices, or cGLP.
68
There can be no assurance that our product candidate, if approved, can be manufactured in sufficient commercial quantities, in compliance with
regulatory requirements and at an acceptable cost. We and our contract manufacturers are, and will be, subject to extensive governmental regulation in
connection with the manufacture of any pharmaceutical products or medical devices. We and our contract manufacturers must ensure that all of the processes,
methods and equipment are compliant with cGMP and cGLP for drugs on an ongoing basis, as mandated by the FDA and other regulatory authorities, and
conduct extensive audits of vendors, contract laboratories and suppliers.
On January 28, 2015, we entered into the Perrigo Agreement with Perrigo, a subsidiary of Perrigo Company plc, for, among other things, the large-
scale production of Aramchol’s API and the scale-up and manufacturing process optimization for large-scale production of the Aramchol API. To date,
Perrigo has manufactured three pilot batches of Aramchol API. The material obtained is of appropriate quality and was produced under GLP, but has resulted
in significant high manufacturing costs. Therefore, additional research and development work pertaining to the scale-up and optimization of the process is
currently being done by two other CRO's under cGMP and cGLP, in order, inter alia, to simplify, increase yields and improve the volume capacity of the
manufacturing process. Based on the results of the additional research and development work, we will decide how to proceed with the future manufacture of
Aramchol API. See “Item 4.B. Information on the Company—Business Overview—Strategic Collaborations, Research Arrangements and Other Material
Agreements—Perrigo API Ltd.” for more information regarding the Perrigo Agreement.
Contract Research Organizations
We outsource certain clinical trial activities to CROs. Our clinical CROs comply with guidelines from the International Conference on
Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use, which attempt to harmonize the FDA, the EMA, and the
Pharmaceuticals and Medical Devices Agency of Japan regulations and guidelines. We create and implement the drug development plans and manage the
CROs according to the specific requirements of the drug candidate under development. To the extent clinical research is overseen by the CROs (or directly by
us), compliance with certain federal regulations, including but not limited to 21 C.F.R. parts 50, 54, 56, 58 and 312, which pertain to, among other things,
IRBs, informed consent, financial conflicts of interest by investigators, correct administration of treatment, follow up of adverse events, good laboratory
practices and submitting IND applications, may be required.
Marketing, Sales and Commercialization
Given our stage of development, we do not have any internal sales, marketing or distribution infrastructure or capabilities. In the event we receive
regulatory approval for Aramchol, we intend, where appropriate, to pursue commercialization relationships, including strategic alliances and licensing, with
pharmaceutical companies and other strategic partners, which are equipped to market and/or sell our products, if any, through their well-developed sales,
marketing and distribution organizations in order to gain access to global markets. In addition, we may out-license some or all of our worldwide patent rights
to more than one party to achieve the fullest development, marketing and distribution of any products we develop. Over the longer term, we may consider
ultimately building an internal marketing, sales and commercial infrastructure. See “Item 4.B. Information on the Company—Business Overview—Strategic
Collaborations, Research Arrangements and other Material Agreements—Samil Pharm Co.” for information regarding the license Agreement we entered with
Samil for the commercialization of Aramchol (with an option to manufacture) for the treatment of fatty liver indications including NASH, in the Republic of
Korea.
69
Environmental Matters
We, our agents and our service providers, including our manufacturers, may be subject to various environmental, health and safety laws and
regulations, including those governing air emissions, water and wastewater discharges, noise emissions, the use, management and disposal of hazardous,
radioactive and biological materials and wastes and the cleanup of contaminated sites. We believe that our business, operations and facilities, including, to our
knowledge, those of our agents and service providers, are being operated in compliance in all material respects with applicable environmental and health and
safety laws and regulations. All information with respect to any chemical substance is filed and stored as a Material Safety Data Sheet, as required by
applicable environmental regulations. Based on information currently available to us, we do not expect environmental costs and contingencies to have a
material adverse effect on us. However, significant expenditures could be required in the future if we, our agents or our service providers are required to
comply with new or more stringent environmental or health and safety laws, regulations or requirements.
Government Regulation and Product Approval
Governmental authorities in the United States and in other countries extensively regulate, among other things, the research, development, testing,
manufacture, labeling, packaging, promotion, storage, advertising, distribution, marketing and export and import of products such as those we are developing.
Our product candidates must be approved by the FDA through the NDA process before they may be legally marketed in the United States and by the
Committee on Human Medicinal Products, or CHMP, via the EMA and European Commission through the MAA process before they may be legally
marketed in Europe. Our product candidate and future product candidates will be subject to similar requirements in other countries prior to marketing in those
countries. The process of obtaining regulatory approvals and the subsequent compliance with applicable federal, state, local and foreign statutes and
regulations require the expenditure of substantial time and financial resources.
We are conducting a global development program for Aramchol for the treatment of NASH in OD patients, and we may make our submissions for
regulatory approval in parallel; initially in Europe and in the United States. Typically, approval time in the United States with the FDA for an NDA is faster
than that within Europe with the EMA and the European Commission for an MMA, especially when the novelty of the submission is considered. First in
class, high medical need and rare disease drugs can experience faster review. Nevertheless, marketing and pricing approval presents a further delay in many
countries that should be considered in addition to the regulatory approvals noted above.
United States Government Regulation
NDA Approval Processes
In the United States, the FDA regulates drugs under the Federal Food, Drug, and Cosmetic Act, or the FDCA, and implementing regulations and
guidance documents. Failure to comply with the applicable U.S. requirements at any time during the product development process or approval process, or
after approval, may subject an applicant to administrative or judicial sanctions, any of which could have a material adverse effect on us. These sanctions could
include refusal to approve pending applications, withdrawal of an approval, imposition of a clinical hold, issuance of warning letters, product seizures, total or
partial suspension of production or distribution, injunctions, fines, disgorgement, and civil or criminal penalties.
The process required by the FDA before a drug may be marketed in the United States generally involves the following:
·
·
·
completion of non-clinical laboratory tests, animal studies and formulation studies conducted according to Good Laboratory Practices, or
GLPs, or other applicable regulations;
submission to the FDA of an IND application, which must become effective before human clinical trials may begin;
performance of adequate and well-controlled human clinical trials according to Good Clinical Practices, or GCPs, to establish the safety and
efficacy of the proposed drug for its intended use;
70
·
·
·
·
submission to the FDA of an NDA;
satisfactory completion of an FDA inspection of the manufacturing facility or facilities at which the product is produced to assess
compliance with cGMPs to assure that the facilities, methods and controls are adequate to preserve the drug’s identity, strength, quality and
purity;
satisfactory completion of FDA inspections of clinical sites and GLP toxicology studies; and
FDA review and approval of the NDA.
The testing and approval process requires substantial time, effort and financial resources, and we cannot be certain that any approvals for our product
candidates will be granted on a timely basis, if at all.
Once a product candidate is identified for development, it enters the non-clinical or non-clinical testing stage. Non-clinical tests include laboratory
evaluations of product chemistry, toxicity and formulation, as well as animal studies. An IND sponsor must submit the results of the non-clinical tests,
together with manufacturing information and analytical data, to the FDA as part of the IND. Some non-clinical testing may continue after the IND is
submitted. In addition to including the results of the non-clinical studies, the IND will also include a clinical trial protocol detailing, among other things, the
objectives of the clinical trial, the parameters to be used in monitoring safety and, depending on the phase of the study, the effectiveness criteria to be
evaluated. The IND automatically becomes effective 30 days after receipt by the FDA, unless the FDA, within the 30-day time period, places the IND on
clinical hold. In such a case, the IND sponsor and the FDA must resolve any outstanding concerns before clinical trials can begin. A clinical hold may occur
at any time during the life of an IND, due to safety concerns or non-compliance, and may affect one or more specific studies or all studies conducted under
the IND.
All clinical trials must be conducted under the supervision of one or more qualified investigators in accordance with the FDA’s GCP regulations.
These regulations include the requirement that all research subjects provide informed consent. Further, an IRB must review and approve the plan for any
clinical trial, including the informed consent document, before it commences at any institution. An IRB considers, among other things, whether the risks to
individuals participating in the trials are minimized and are reasonable in relation to anticipated benefits. The IRB also approves the investigator brochure and
other information about the trial distributed by the sponsor and the consent form that must be provided to each trial subject or his or her legal representative
and must monitor the study until completed. All clinical trials must be conducted under protocols detailing the objectives of the trial, dosing procedures,
research subject inclusion and exclusion criteria and the safety and effectiveness criteria to be evaluated. Each protocol must be submitted to the FDA as part
of the IND, and progress reports detailing the status of the clinical trials must be submitted to the FDA annually. Sponsors must also report within set
timeframes to FDA serious and unexpected adverse reactions, any clinically important increase in the rate of a serious suspected adverse reaction over that
listed in the protocol or investigation brochure, or any findings from other studies or animal or in-vitro testing that suggest a significant risk in humans
exposed to the drug. Sponsors must also report to FDA certain amendments to the protocol and other essential information concerning the IND that does not
fall within the scope of other required reports.
Human clinical trials are typically conducted in three sequential phases that may overlap or be combined:
·
·
·
Phase I. The drug is initially introduced into healthy human subjects and tested for safety, dosage tolerance, absorption, metabolism,
distribution and elimination. In the case of some products for severe or life-threatening diseases, such as cancer, especially when the product
may be inherently too toxic to ethically administer to healthy volunteers, the initial human testing is often conducted in patients.
Phase II. Clinical trials are performed on a limited patient population intended to identify possible adverse effects and risks, to preliminarily
evaluate the efficacy of the product for specific targeted diseases and to determine dosage tolerance and optimal dosage.
Phase III. Clinical trials are undertaken to further evaluate dosage, clinical efficacy and safety in an expanded patient population at
geographically dispersed clinical study sites. Phase III clinical trials are conducted to provide sufficient data for the statistically valid
evidence of safety and efficacy.
71
Human clinical trials are inherently uncertain and Phase I, Phase II and Phase III testing may not be successfully completed. The FDA or the sponsor
may suspend a clinical trial at any time for a variety of reasons, including a finding that the research subjects or patients are being exposed to an unacceptable
health risk. Similarly, an IRB can suspend or terminate approval of a clinical trial at its institution if the clinical trial is not being conducted in accordance
with the IRB’s requirements or if the drug has been associated with unexpected serious harm to patients.
During the development of a new drug, sponsors are given opportunities to meet with the FDA at certain points. These points are typically prior to
the submission of an IND, at the end of Phase II and before an NDA is submitted. Meetings at other times may also be requested. These meetings can provide
an opportunity for the sponsor to share information about the data gathered to date and for the FDA to provide advice on the next phase of development.
Sponsors typically use the meeting at the end of Phase II to discuss their Phase II clinical results and present their plans for the pivotal Phase III clinical trial
that they believe will support the approval of the NDA. If a Phase II clinical trial is the subject of discussion at the end of Phase II meeting with the FDA, a
sponsor may be able to request a Special Protocol Assessment, or SPA, the purpose of which is to reach agreement with the FDA on the Phase III clinical trial
protocol design and size that will form the primary basis for the demonstration of effectiveness in a marketing application.
According to published guidance on the SPA process, a sponsor which meets the prerequisites may make a specific request for an SPA and provide
information regarding the design and size of the proposed clinical trial. The FDA has a goal of completing the majority of SPA reviews within 45 days,
although certain circumstances may result in a delay in FDA’s decision. An SPA request must be made before the proposed trial begins, and all open issues
must be resolved before the trial begins. If a written agreement is reached, it will be documented and made part of the record. The agreement will be binding
on the FDA and may not be changed by the sponsor or the FDA after the trial begins except with the written agreement of the sponsor and the FDA or if the
FDA determines that a substantial scientific issue essential to determining the safety or efficacy of the drug was identified after the testing began. There is no
indication that we will be able to meet the requirements necessary for an SPA.
Concurrent with clinical trials, sponsors usually complete any remaining animal safety studies and also develop additional information about the
chemistry and physical characteristics of the drug and finalize a process for manufacturing commercial quantities of the product in accordance with cGMP
requirements. The manufacturing process must be capable of consistently producing quality batches of the drug and the manufacturer must develop methods
for testing the quality, purity and potency of the drug. Additionally, appropriate packaging must be selected and tested and stability studies must be conducted
to demonstrate that the drug candidate does not undergo unacceptable deterioration over its proposed shelf-life.
The results of product development, non-clinical studies and clinical trials, along with descriptions of the manufacturing process, analytical tests and
other control mechanisms, proposed labeling and other relevant information are submitted to the FDA as part of an NDA requesting approval to market the
product for one or more specified indications. The submission of an NDA is subject to the payment of an application fee, but a waiver of such fees may be
obtained under specified circumstances. We will seek a waiver of these fees as a small business submitting its first human drug application to the FDA. If the
waiver is granted it would not extend to establishment or product fees. The FDA reviews all NDAs submitted to ensure that they are sufficiently complete for
substantive review before it accepts them for filing. It may request additional information rather than accept an NDA for filing. In this event, the NDA must
be resubmitted with the additional information. The resubmitted application also is subject to review before the FDA accepts it for filing.
Once the submission is accepted for filing, the FDA begins an in-depth review. The FDA may refuse to approve an NDA if the applicable statutory
and regulatory criteria are not satisfied or may require additional clinical or other data. Even if such data are submitted, the FDA may ultimately decide that
the NDA does not satisfy the criteria for approval. The FDA reviews an NDA to determine, among other things, whether a product is safe and effective for its
intended use and whether its manufacturing is cGMP-compliant. The FDA may refer the NDA to an advisory committee for review and recommendation as
to whether the application should be approved and under what conditions. The FDA is not bound by the recommendation of an advisory committee, but it
generally follows such recommendations. Before approving an NDA, the FDA will typically inspect the facility or facilities where the product is
manufactured and tested. The FDA will also inspect selected clinical sites that participated in the clinical studies and may inspect the testing facilities that
performed the GLP toxicology studies cited in the NDA.
72
Expedited Review and Approval
NDAs receive either standard or expedited review. A drug representing a significant improvement in treatment, prevention or diagnosis of disease
may receive expedited review. The FDA has various specific programs, including Fast Track, Breakthrough Therapy, Priority Review, and Accelerated
Approval, which, in different ways, are each intended to expedite the process for reviewing and approving drugs. Even if a drug qualifies for one or more of
these programs, the FDA may later decide that the drug no longer meets the conditions for qualification or that the time period for FDA review or approval
will be shortened. Generally, drugs that are eligible for these programs are those for serious or life-threatening conditions, those with the potential to address
unmet medical needs and those that offer meaningful benefits over existing treatments. For example, Fast Track is a process designed to facilitate the
development and expedite the review of drugs to treat serious or life-threatening diseases or conditions and fill unmet medical needs, and Breakthrough
Therapy designation is designed to expedite the development and review of drugs that are intended to treat a serious condition where preliminary clinical
evidence indicates that the drug may demonstrate substantial improvement over available therapy on a clinically significant endpoint(s). Priority review is
designed to give drugs that offer major advances in treatment or provide a treatment where no adequate therapy exists an initial review within six months as
compared to a standard review time of ten months. Although Fast Track, Breakthrough Therapy designation and priority review do not affect the standards for
approval, the FDA will attempt to facilitate early and frequent meetings with a sponsor of a Fast Track or Breakthrough Therapy designated drug and expedite
review of the application for a drug designated for priority review. The FDA will also provide Breakthrough Therapy designated drugs intensive guidance on
an efficient drug development program and provide these drug developers with an organizational commitment from the FDA involving senior managers.
Since sponsors can design clinical trials in a number of ways, in providing its guidance for drugs designated as breakthrough therapies, the FDA will seek to
ensure that the sponsor of the product designated as a breakthrough therapy receives timely advice and interactive communications in order to help the
sponsor design and conduct a development program as efficiently as possible. During these interactions, the FDA may suggest, or a sponsor can propose,
alternative clinical trial designs (e.g., adaptive designs, an enrichment strategy, use of historical controls) that may result in smaller trials or more efficient
trials that require less time to complete. Such trial designs could also help minimize the number of patients exposed to a potentially less efficacious treatment
(i.e., the control group treated with available therapy). On September 23, 2014, the FDA granted Fast Track designation status to Aramchol for the treatment
of OD patients with NASH.
Accelerated Approval, which is described in 21 C.F.R. § 314.500 et seq., provides for approval of a new drug that is intended to treat a serious or
life-threatening disease or condition and that fills an unmet medical need based on a surrogate endpoint. A surrogate endpoint is a laboratory measurement or
physical sign used as an indirect or substitute measurement representing a clinically meaningful outcome. To be used in accelerated approval, a surrogate
endpoint must be “reasonably likely, based on epidemiologic, therapeutic, pathophysiologic, or other evidence to predict benefit on irreversible morbidity or
mortality.” The term “reasonable likely” implies that some uncertainty remains about the relationship of the surrogate to the clinical benefit to the patient.
Therefore, accelerated approval is typically contingent on a sponsor’s agreement to conduct additional post-approval studies to verify and describe the drug’s
clinical benefit. Accelerated Approval does not change the standards for approval, but by allowing a demonstration of efficacy based on a surrogate endpoint
may expedite the approval process.
Liver histology currently offers the best short-term method for tracking the progression of NASH. Certain features on histopathology provide some
prognostic information regarding risk for progression. Steatohepatitis, not isolated fatty liver, is associated with a substantial increase in the long-term risk of
developing cirrhosis and liver-related outcomes (15, 35). This is believed to be related to the underlying inflammation and activation of pro-fibrogenic
pathways in NASH. Based on this current understanding of the pathogenesis of NASH, one would expect that reversal of steatohepatitis would reduce the risk
of developing cirrhosis. However, steatosis and inflammation can decrease as fibrosis advances (37). Therefore, the reversal of steatohepatitis with no
evidence of progression to advanced fibrosis (stage 3 or 4), may be an acceptable surrogate endpoint suitable both for phase IIB and III trials that enroll
patients with NASH and evidence of early fibrosis.
73
In 2016, the U.S. Congress enacted the 21st Century Cures Act. The law contains several provisions aimed at accelerating drug approval. In
particular, it directs FDA to implement a formal review pathway to qualify biomarkers and other drug development tools. It is unclear when this new pathway
will be implemented or whether using this pathway would have any impact on our clinical program.
Patent Term Restoration and Marketing Exclusivity
Depending upon the timing, duration and specifics of FDA approval of the use of our product candidates, U.S. patents may be eligible for limited
patent term extension under the Hatch-Waxman Act. The Hatch-Waxman Act permits a patent restoration term of up to five years as compensation for patent
term lost during product development and the FDA regulatory review process. However, patent term restoration cannot extend the remaining term of a patent
beyond a total of 14 years from the product’s approval date. The patent term restoration period is generally one-half the time between the effective date of an
IND, and the submission date of an NDA, plus the time between the submission date of an NDA and the approval of that application. Only one patent
applicable to an approved drug is eligible for the extension and the application for extension must be made prior to expiration of the patent. The USPTO, in
consultation with the FDA, reviews and approves the application for any patent term extension or restoration. In the future, we intend to apply for restorations
of patent term for some of our currently owned patents to add patent life beyond their current expiration date, depending on the expected length of clinical
trials and other factors involved in the submission of the relevant NDA.
Market exclusivity provisions under the FDCA also can delay the submission or the approval of certain applications. The FDCA provides a five year
period of non-patent marketing exclusivity within the United States to the first applicant to gain approval of an NDA for a new chemical entity. A drug is a
new chemical entity if the FDA has not previously approved any other new drug containing the same active moiety, which is the molecule or ion responsible
for the action of the drug substance. During the exclusivity period, the FDA may not accept for review an abbreviated new drug application, or ANDA, or a
505(b)(2) NDA submitted by another company for another version of such drug where the applicant does not own or have a legal right of reference to all the
data required for approval. However, an application may be submitted after four years if it contains a certification of patent invalidity or non-infringement.
The FDCA also provides three years of marketing exclusivity for an NDA, 505(b)(2) NDA or supplement to an approved NDA if new clinical investigations,
other than bioavailability studies, that were conducted or sponsored by the applicant are deemed by the FDA to be essential to the approval of the application,
for example, for new indications, dosages or strengths of an existing drug. This three year exclusivity covers only the conditions associated with the new
clinical investigations and does not prohibit the FDA from approving ANDAs for drugs containing the original active agent. Five year and three year
exclusivity will not delay the submission or approval of a full NDA; however, an applicant submitting a full NDA would be required to conduct or obtain a
right of reference to all of the non-clinical studies and adequate and well-controlled clinical trials necessary to demonstrate safety and effectiveness.
Post-approval Requirements
Once an approval is granted, the FDA, European authorities and other regulatory authorities may withdraw the approval if compliance with
regulatory requirements is not maintained or if problems occur after the product reaches the market. Later discovery of previously unknown problems with a
product may result in restrictions on the product or even complete withdrawal of the product from the market. After approval, some types of changes to the
approved product, such as adding new indications, manufacturing changes and additional labeling claims, are subject to further regulatory authority review
and approval. Some of these modifications, especially adding indications, would likely require additional clinical studies. In addition, the FDA may require
testing and surveillance programs to monitor the effect of approved products that have been commercialized, and the FDA has the power to prevent or limit
further marketing of a product based on the results of these post-marketing programs.
Any drug product manufactured or distributed by us pursuant to FDA approvals are subject to continuing regulation by the FDA, including, among
other things record-keeping requirements; GMPs; reporting of adverse experiences with the drug; providing the FDA with updated safety and efficacy
information; drug sampling and distribution requirements; notifying the FDA and gaining its approval of specified manufacturing or labeling changes; and
complying with FDA promotion and advertising requirements.
74
Drug manufacturers and other entities involved in the manufacture and distribution of approved drugs are required to register their establishments
with the FDA and certain state agencies, and are subject to periodic unannounced inspections by the FDA and some state agencies for compliance with cGMP
and other laws.
We rely, and expect to continue to rely, on third parties for the production of clinical and commercial quantities of our products. Future FDA and
state inspections may identify compliance issues at the facilities of our contract manufacturers that may disrupt production or distribution, or require
substantial resources to correct.
From time to time, legislation is drafted, introduced and passed in Congress that could significantly change the statutory provisions governing the
approval, manufacturing and marketing of products regulated by the FDA. In addition, FDA regulations and guidance are often revised or reinterpreted by the
agency in ways that may significantly affect our business and our products. It is impossible to predict whether legislative changes will be enacted, or FDA
regulations, guidance or interpretations changed or what the impact of such changes, if any, may be. In particular, it is unknown whether any of the provisions
of the 2016 21st Century Cures Act that are intended to accelerate drug approval will result in any change in the current approval pathway for Aramchol.
Pursuant to the Affordable Care Act (discussed in greater detail below), the Centers for Medicare & Medicaid Services (CMS) is required to collect
and publish information reported by applicable manufacturers about payments and other transfers of value manufacturers have made to physicians and
teaching hospitals. Such a law, when applicable to our products, could increase the company’s regulatory liability through the imposition of additional
reporting and regulatory requirements. There are also an increasing number of state laws that require manufacturers to make similar reports to states on
pricing and marketing information.
Reimbursement
We face uncertainties over the pricing of pharmaceutical products. Sales of our products will depend, in part, on the extent to which the costs of our
products will be covered by third-party payors, such as federal health programs, commercial insurance and managed care organizations. These third-party
payors are increasingly challenging the prices charged for medical products and services. Additionally, the containment of healthcare costs has become a
priority of federal and state governments and the prices of drugs have been a focus in this effort. The U.S. government, state legislatures, foreign governments
and third party payors have shown significant interest in implementing cost-containment programs, including price controls, restrictions on reimbursement
and requirements for substitution of generic products. Adoption of price controls and cost-containment measures, and adoption of more restrictive policies in
jurisdictions with existing controls and measures, could further limit our net revenue and results. If these third-party payors do not consider our products to be
cost-effective compared to other therapies, they may not cover our products after approved as a benefit under their plans or, if they do, the level of payment
may not be sufficient to allow us to sell our products on a profitable basis.
The Medicare Modernization Act imposed new requirements for the distribution and pricing of prescription drugs for Medicare beneficiaries under
Part D. Under Part D, Medicare beneficiaries may enroll in prescription drug plans offered by private entities that provide coverage of outpatient prescription
drugs. Part D prescription drug plan sponsors are not required to pay for all covered Part D drugs, and each drug plan can develop its own drug formulary that
identifies which drugs it will cover and at what tier or level. However, Part D prescription drug formularies must include drugs within each therapeutic
category and class of covered Part D drugs, though not necessarily all the drugs in each category or class. The Centers for Medicare & Medicaid Services
published a final rule in 2014 implementing the Medicare Modernization Act. Contrary to the proposed rule, which would have enabled Part D plans to offer
fewer drugs, the final rule maintained the existing six protected classes of drug categories, but stated that some of the proposals not included in the final rule
could still be finalized in the future, which would impact payor formulary and coverage decisions.
The American Recovery and Reinvestment Act of 2009 provides funding for the federal government to compare the effectiveness of different
treatments for the same illness. A plan for the research will be developed by the Department of Health and Human Services, the Agency for Healthcare
Research and Quality and the National Institutes for Health, and periodic reports on the status of the research and related expenditures will be made to
Congress. Although the results of the comparative effectiveness studies are not intended to mandate coverage policies for public or private payors, it is not
clear what effect, if any, the research will have on the sales of any product, if any such product or the condition that it is intended to treat is the subject of a
study. It is also possible that comparative effectiveness research demonstrating benefits in a competitor’s product could adversely affect the sales of our
product candidates. If third-party payors do not consider our products to be cost-effective compared to other available therapies, they may not cover our
products as a benefit under their plans or, if they do, the level of payment may not be sufficient to allow us to sell our products on a profitable basis.
75
The Affordable Care Act, enacted in March 2010, has had a significant impact on the health care industry. Some of the key changes made to date
pursuant to the Affordable Care Act include an expansion of coverage for the uninsured, the creation of insurance marketplaces and increased protection of
insureds with new benefits, rights and protections. With regard to pharmaceutical products, among other things, the Affordable Care Act made major changes
to the Medicare prescription drug program, which helped reduce drug costs for seniors and increased rebates and other costs for the pharmaceutical industry.
On January 20, 2016, President Donald J. Trump was inaugurated as the President of the United States. President Trump has stated that he intends to
“repeal and replace” the Affordable Care Act, and Congress has taken initial steps to repeal the law. We cannot predict the impact of the change in
administration on the Affordable Care Act and the subsequent effect on the pharmaceutical industry at this time.
In addition, in some non-U.S. jurisdictions, the proposed pricing for a drug must be approved before it may be lawfully marketed. The requirements
governing drug pricing vary widely from country to country. For example, the EU provides options for its member states to restrict the range of medicinal
products for which their national health insurance systems provide reimbursement and to control the prices of medicinal products for human use. A member
state may approve a specific price for the medicinal product or it may instead adopt a system of direct or indirect controls on the profitability of the company
placing the medicinal product on the market. There can be no assurance that any country that has price controls or reimbursement limitations for
pharmaceutical products will allow favorable reimbursement and pricing arrangements for any of our products. Historically, products launched in the EU do
not follow price structures of the United States and generally tend to be significantly lower.
Healthcare Fraud and Abuse Laws
In the U.S., the research, development, testing, manufacturing, handling, storage, distribution, sale and promotion of drug products and medical
devices are potentially subject to regulation by various federal, state and local authorities in addition to the FDA, including the Centers for Medicare &
Medicaid Services, other divisions of the U.S. Department of Health and Human Services (e.g., the Office of Inspector General), the U.S. Department of
Justice, state Attorneys General, and other state and local government agencies. For example, sales, marketing and scientific/educational grant programs must
comply with the fraud and abuse provisions applicable to pharmaceutical manufacturers, including the federal “Anti-Kickback Statute”, the Civil Monetary
Penalty Statute, the Stark Law, the federal False Claims Act, as amended, the privacy regulations promulgated under the Health Insurance Portability and
Accountability Act, or HIPAA, and similar state laws. Pricing and rebate programs must comply with the Medicaid Drug Rebate Program requirements of the
Omnibus Budget Reconciliation Act of 1990, as amended, and the Veterans Health Care Act of 1992, as amended. If products are made available to
authorized users of the Federal Supply Schedule of the General Services Administration, additional laws and requirements apply. All of these activities are
also potentially subject to federal and state consumer protection and unfair competition laws.
The Anti- Kickback Statute makes it illegal for any person, including a prescription drug manufacturer (or a party acting on its behalf) to knowingly
and willfully solicit, receive, offer, or pay any remuneration that is intended to induce the referral of business, including the purchase, order, or prescription of
a particular drug, for which payment may be made under a federal healthcare program, such as Medicare or Medicaid.
The federal False Claims Act prohibits anyone from knowingly presenting, or causing to be presented, for payment to federal programs (including
Medicare and Medicaid) claims for items or services, including drugs, that are false or fraudulent, claims for items or services not provided as claimed, or
claims for medically unnecessary items or services. Increasingly, U.S. federal agencies are requiring nonmonetary remedial measures, such as corporate
integrity agreements in False Claims Act settlements. The U.S. Department of Justice announced in 2016 its intent to follow the “Yates Memo,” taking a far
more aggressive approach in pursuing individuals as False Claims Act defendants in addition to the corporations.
76
The Physician Payment Sunshine Act, enacted in 2010 as part of the Affordable Care Act, requires manufacturers of pharmaceuticals and medical
devices to annually report certain payments and other transfers of value to physicians and teaching hospitals, as well as investment interests held by
physicians and their immediate family members. In recent years, several states in the United States have also enacted legislation requiring pharmaceutical
companies to file periodic reports with the state, make periodic public disclosures on sales, marketing, pricing, clinical trials and other activities, and/or
register their sales representatives, as well as establish marketing compliance programs. These laws may affect our sales, marketing, and other promotional
activities by imposing administrative and compliance burdens on us. Failure to meet these requirements, to the extent they are applicable to our activities, also
could result in a variety of governmental sanctions that could have a material adverse effect on our business.
European Economic Area
In addition to approval in the United States, we currently intend to seek regulatory approval of Aramchol in the EU. As such, a summary of the EU
regulatory processes follows below.
A medicinal product may only be placed on the market in the European Economic Area, or EEA, composed of the 28 EU member states, plus
Norway, Iceland and Lichtenstein, when a marketing authorization has been issued by the competent authority of a member state pursuant to Directive
2001/83/EC (as recently amended by Directive 2004/27/EC), or an authorization has been granted under the centralized procedure in accordance with
Regulation (EC) No. 726/2004 or its predecessor, Regulation 2309/93. There are essentially three community procedures created under prevailing European
pharmaceutical legislation that, if successfully completed, allow an applicant to place a medicinal product on the market in the EEA.
Centralized Procedure
Regulation 726/2004/EC now governs the centralized procedure when a marketing authorization is granted by the European Commission, acting in
its capacity as the European Licensing Authority on the advice of the EMA. That authorization is valid throughout the entire community and directly or (as to
Norway, Iceland and Liechtenstein) indirectly allows the applicant to place the product on the market in all member states of the EEA. The EMA is the
administrative body responsible for coordinating the existing scientific resources available in the member states for evaluation, supervision and
pharmacovigilance of medicinal products. Certain medicinal products, as described in the Annex to Regulation 726/2004, must be authorized centrally. These
are products that are developed by means of a biotechnological process in accordance with Paragraph 1 to the Annex to the Regulation. Medicinal products
for human use containing a new active substance for which the therapeutic indication is the treatment of acquired immune deficiency syndrome, or AIDS,
cancer, neurodegenerative disorder or diabetes must also be authorized centrally. Starting on May 20, 2008, the mandatory centralized procedure was
extended to autoimmune diseases and other immune dysfunctions and viral diseases. Finally, all medicinal products that are designated as orphan medicinal
products pursuant to Regulation 141/2000 must be authorized under the centralized procedure. An applicant may also opt for assessment through the
centralized procedure if it can show that the medicinal product constitutes a significant therapeutic, scientific or technical innovation or that the granting of
authorization centrally is in the interests of patients at the community level. For each application submitted to the EMA for scientific assessment, the EMA is
required to ensure that the opinion of the Committee for Medicinal Products for Human Use, or CHMP, is given within 210 days after receipt of a valid
application. This 210 days period does not include the time that the applicant to answer any questions raised during the application procedure, the so-called
‘clock stop’ period. If the opinion is positive, the EMA is required to send the opinion to the European Commission, which is responsible for preparing the
draft decision granting a marketing authorization. This draft decision may differ from the CHMP opinion, stating reasons for diverging for the CHMP
opinion. The draft decision is sent to the applicant and the member states, after which the European Commission takes a final decision. If the initial opinion of
the CHMP is negative, the applicant is afforded an opportunity to seek a re-examination of the opinion. The CHMP is required to re-examine its opinion
within 60 days following receipt of the request by the applicant. All CHMP refusals and the reasons for refusal are made public on the EMA website. Without
a centralized marketing authorization it is prohibited to place a medicinal product that must be authorized centrally on the market in the EU.
77
Mutual Recognition and Decentralized Procedures
With the exception of products that are authorized centrally, the competent authorities of the member states are responsible for granting marketing
authorizations for medicinal products placed on their national markets. If the applicant for a marketing authorization intends to market the same medicinal
product in more than one member state, the applicant may seek an authorization progressively in the community under the mutual recognition or
decentralized procedure. Mutual recognition is used if the medicinal product has already been authorized in a member state. In this case, the holder of this
marketing authorization requests the member state where the authorization has been granted to act as reference member state by preparing an updated
assessment report that is then used to facilitate mutual recognition of the existing authorization in the other member states in which approval is sought (the so-
called concerned member state(s)). The reference member state must prepare an updated assessment report within 90 days of receipt of a valid application.
This report together with the approved Summary of Product Characteristics, or SmPC (which sets out the conditions of use of the product), and a labeling and
package leaflet are sent to the concerned member states for their consideration. The concerned member states are required to approve the assessment report,
the SmPC and the labeling and package leaflet within 90 days of receipt of these documents. The total procedural time is 180 days.
The decentralized procedure is used in cases where the medicinal product has not received a marketing authorization in the EU at the time of
application. The applicant requests a member state of its choice to act as reference member state to prepare an assessment report that is then used to facilitate
agreement with the concerned member states and the grant of a national marketing authorization in all of these member states. In this procedure, the reference
member state must prepare, for consideration by the concerned member states, the draft assessment report, a draft SmPC and a draft of the labeling and
package leaflet within 120 days after receipt of a valid application. As in the case of mutual recognition, the concerned member states are required to approve
these documents within 90 days of their receipt.
For both mutual recognition and decentralized procedures, if a concerned member state objects to the grant of a marketing authorization on the
grounds of a potential serious risk to public health, it may raise a reasoned objection with the reference member state. The points of disagreement are in the
first instance referred to the Co-ordination Group on Mutual Recognition and Decentralized Procedures, or CMD, to reach an agreement within 60 days of the
communication of the points of disagreement. If member states fail to reach an agreement, then the matter is referred to the EMA and CHMP for arbitration.
The CHMP is required to deliver a reasoned opinion within 60 days of the date on which the matter is referred. The scientific opinion adopted by the CHMP
forms the basis for a binding European Commission decision.
Irrespective of whether the medicinal product is assessed centrally, de-centrally or through a process of mutual recognition, the medicinal product
must be manufactured in accordance with the principles of GMP as set out in Directive.
2003/94/EC and Volume 4 of the rules governing medicinal products in the European community. Moreover, community law requires the clinical
results in support of clinical safety and efficacy based upon clinical trials conducted in the European community to be in compliance with the requirements of
Directive 2001/20/EC, which implements good clinical practice in the conduct of clinical trials on medicinal products for human use. Clinical trials conducted
outside the European community and used to support applications for marketing within the EU must have been conducted in a way consistent with the
principles set out in Directive 2001/20/EC. The conduct of a clinical trial in the EU requires, pursuant to Directive 2001/20/EC, authorization by the relevant
national competent authority where a trial takes place, and an ethics committee to have issued a favorable opinion in relation to the arrangements for the trial.
It also requires that the sponsor of the trial, or a person authorized to act on his behalf in relation to the trial, be established in the community.
National Procedure
This procedure is available for medicinal products that do not fall within the scope of mandatory centralized authorization. Specific procedures and
timelines differ between member states, but the duration of the procedure is generally 210 days and based on a risk/efficacy assessment by the competent
authority of the member state concerned, followed by determination of SmPC, package leaflet and label text/layout and subsequently grant of the marketing
authorization. Marketing authorizations granted on this basis are not mutually recognized by other member states.
78
There are various types of applications for marketing authorizations:
·
·
Full Applications. A full application is one that is made under any of the community procedures described above “stands alone” in the sense
that it contains all of the particulars and information required by Article 8(3) of Directive 2001/83 (as amended) to allow the competent
authority to assess the quality, safety and efficacy of the product and in particular the balance between benefit and risk. Article 8(3)(l) in
particular refers to the need to present the results of the applicant’s research on (i) pharmaceutical (physical-chemical, biological or
microbiological) tests, (ii) non-clinical (toxicological and pharmacological) studies and (iii) clinical trials in humans. The nature of these
tests, studies and trials is explained in more detail in Annex I to Directive 2001/83/EC. Full applications would be required for products
containing new active substances not previously approved by the competent authority, but may also be made for other products.
Abridged Applications. Article 10 of Directive 2001/83/EC contains exemptions from the requirement that the applicant provide the results
of its own non-clinical and clinical research. There are three regulatory routes for an applicant to seek an exemption from providing such
results, namely (i) cross-referral to an innovator’s results without consent of the innovator, (ii) well established use according to published
literature and (iii) consent to refer to an existing dossier of research results filed by a previous applicant.
Cross-referral to Innovator’s Data
Articles 10(1) and 10(2)(b) of Directive 2001/83/EC provide the legal basis for an applicant to seek a marketing authorization on the basis that its
product is a generic medicinal product (a copy) of a reference medicinal product that has already been authorized, in accordance with community provisions.
A reference product is, in principle, an original product granted an authorization on the basis of a full dossier of particulars and information. This is the main
exemption used by generic manufacturers for obtaining a marketing authorization for a copy product. The generic applicant is not required to provide the
results of non-clinical studies and of clinical trials if its product meets the definition of a generic medicinal product and the applicable regulatory results
protection period for the results submitted by the innovator has expired. A generic medicinal product is defined as a medicinal product:
·
·
·
having the same qualitative and quantitative composition in active substance as the reference medicinal product;
having the same pharmaceutical form as the reference medicinal product; and
whose bioequivalence with the reference medicinal product has been demonstrated by appropriate bioavailability studies.
Applications in respect of a generic medicinal product cannot be made before the expiry of the protection period. Where the reference product was
granted a national marketing authorization pursuant to an application made before October 30, 2005, the protection period is either six years or 10 years,
depending upon the election of the particular member state concerned. Where the reference product was granted a marketing authorization centrally, pursuant
to an application made before November 20, 2005, the protection period is 10 years. For applications made after these dates, Regulation 726/2004 and
amendments to Directive 2001/83/EC provide for a harmonized protection period regardless of the approval route utilized. The harmonized protection period
is in total 10 years, including eight years of research data protection and two years of marketing protection. The effect is that the originator’s results can be the
subject of a cross-referral application after eight years, but any resulting authorization cannot be exploited for a further two years. The rationale of this
procedure is not that the competent authority does not have before it relevant tests and trials upon which to assess the efficacy and safety of the generic
product, but that the relevant particulars can, if the research data protection period has expired, be found on the originator’s file and used for assessment of the
generic medicinal product. The 10 year protection period can be extended to 11 years where, in the first eight years post-authorization, the holder of the
authorization obtains approval for a new indication assessed as offering a significant clinical benefit in comparison with existing products.
79
If the copy product does not meet the definition of a generic medicinal product or if certain types of changes occur in the active substance(s) or in the
therapeutic indications, strength, pharmaceutical form or route of administration in relation to the reference medicinal product, Article 10(3) of Directive
2001/83/EC provides that the results of the appropriate non-clinical studies or clinical trials must be provided by the applicant.
Well-established Medicinal Use
Under Article 10a of Directive 2001/83/EC, an applicant may, in substitution for the results of its own non-clinical and clinical research, present
detailed references to published literature demonstrating that the active substance(s) of a product have a well- established medicinal use within the community
with recognized efficacy and an acceptable level of safety. The applicant is entitled to refer to a variety of different types of literature, including reports of
clinical trials with the same active substance(s) and epidemiological studies that indicate that the constituent or constituents of the product have an acceptable
safety/efficacy profile for a particular indication. However, use of the published literature exemption is restricted by stating that in no circumstances will
constituents be treated as having a well- established use if they have been used for less than 10 years from the first systematic and documented use of the
substance as a medicinal product in the EU. Even after 10 years’ systematic use, the threshold for well-established medicinal use might not be met. European
pharmaceutical law requires the competent authorities to consider among other factors the period over which a substance has been used, the amount of patient
use of the substance, the degree of scientific interest in the use of the substance (as reflected in the scientific literature) and the coherence (consistency) of all
the scientific assessments made in the literature. For this reason, different substances may reach the threshold for well-established use after different periods,
but the minimum period is 10 years. If the applicant seeks approval of an entirely new therapeutic use compared with that to which the published literature
refers, additional non-clinical and/or clinical results would have to be provided.
Informed Consent
Under Article 10c of Directive 2001/83/EC, following the grant of a marketing authorization the holder of such authorization may consent to a
competent authority utilizing the pharmaceutical, non-clinical and clinical documentation that it submitted to obtain approval for a medicinal product to assess
a subsequent application relating to a medicinal product possessing the same qualitative and quantitative composition with respect to the active substances
and the same pharmaceutical form.
Law Relating to Pediatric Research
Regulation (EC) 1901/2006 (as amended by Regulation (EC) 1902/2006) was adopted on December 12, 2006. This Regulation governs the
development of medicinal products for human use in order to meet the specific therapeutic needs of the pediatric population. It requires any application for
marketing authorization made after July 26, 2008 in respect of a product not authorized in the European Community on January 26, 2007 (the time the
Regulation entered into force), to include the results of all studies performed and details of all information collected in compliance with a pediatric
investigation plan agreed by the Pediatric Committee of the EMA, unless the product is subject to an agreed waiver or deferral or unless the product is
excluded from the scope of Regulation 1902/2006 (generics, hybrid medicinal products, biosimilars, homeopathic and traditional (herbal) medicinal products
and medicinal products containing one or more active substances of well-established medicinal use). Waivers can be granted in certain circumstances where
pediatric studies are not required or desirable. Deferrals can be granted in certain circumstances where the initiation or completion of pediatric studies should
be deferred until appropriate studies in adults have been performed. The EMA does not evaluate an application for market authorization if there is no agreed
PIP, deferral or waiver. Moreover, this regulation imposes the same obligation from January 26, 2009 on an applicant seeking approval of a new indication,
pharmaceutical form or route of administration for a product already authorized and still protected by a supplementary protection certificate granted under
Regulation EC 469/2009 and its precursor (EEC) 1768/92 or by a patent that qualifies for the granting of such a supplementary protection certificate. The
pediatric Regulation 1901/2006 also provides, subject to certain conditions, a reward for performing such pediatric studies, regardless of whether the pediatric
results provided resulted in the grant of a pediatric indication. This reward comes in the form of an extension of six months to the supplementary protection
certificate granted in respect of the product, unless the product is subject to orphan drug designation, in which case the 10 year market exclusivity period for
such orphan products is extended to 12 years. If any of the non-centralized procedures for marketing authorization have been used, the six month extension of
the supplementary protection certificate is only granted if the medicinal product is authorized in all member states.
80
Post-authorization Obligations
In the pre-authorization phase the applicant must provide a detailed pharmacovigilance plan that it intends to implement post- authorization. An
authorization to market a medicinal product in the EU carries with it an obligation to comply with many post- authorization organizational and behavioral
regulations relating to the marketing and other activities of authorization holders. These include requirements relating to post-authorization efficacy studies,
post-authorization safety studies, adverse event reporting and other pharmacovigilance requirements, advertising, packaging and labeling, patient package
leaflets, distribution and wholesale dealing. The regulations frequently operate within a criminal law framework and failure to comply with the requirements
may not only affect the authorization, but also can lead to financial and other sanctions levied on the company in question and responsible officers. As a result
of the currently on-going overhaul of EU pharmacovigilance legislation the financial and organizational burden on market authorization holders will increase
significantly, such as the obligation to maintain a pharmacovigilance system master file that applies to all holders of marketing authorizations granted in
accordance with Directive 2001/83/EC or Regulation (EC) No 726/2004. Marketing authorization holders must furthermore collect data on adverse events
associated with use of the authorized product outside the scope of the authorization. Pharmacovigilance for biological products and medicines with a new
active substance will be strengthened by subjecting their authorization to additional monitoring activities. The EU is currently in the process of issuing
implementing regulations for the new pharmacovigilance framework.
Any authorization granted by member state authorities, which within three years of its granting is not followed by the actual placing on the market of
the authorized product in the authorizing member state ceases to be valid. When an authorized product previously placed on the market in the authorizing
member state is no longer actually present on the market for a period of three consecutive years, the authorization for that product shall cease to be valid. The
same two three year periods apply to authorizations granted by the European Commission based on the centralized procedure.
Israel
Clinical Testing in Israel
In order to conduct clinical testing on humans in Israel, special authorization must first be obtained from the ethics committee and Chief Executive
Officer and Director of the institution in which the clinical studies are scheduled to be conducted, or in certain cases, the Head of Clinical Trials Department
of the Ministry of Health, as required under the Guidelines for Clinical Trials in Human Subjects implemented pursuant to the Israeli Public Health
Regulations (Clinical Trials in Human Subjects), as amended from time to time, and other applicable legislation. In addition, these regulations also require
authorization from the Israeli Ministry of Health, in the case of genetic trials, certain fertility trials and in such other matters as set forth by the Ministry of
Health, which also include our ARREST Study. The institutional ethics committee must, among other things, evaluate the anticipated benefits that are likely
to be derived from the project to determine if it justifies the risks and inconvenience to be inflicted on the human subjects, and the committee must ensure that
adequate protection exists for the rights and safety of the participants as well as the accuracy of the information gathered in the course of the clinical testing.
Because we perform a portion of the ARREST Study on therapeutic candidates in Israel, we obtained authorization from the Chief Executive Officer and
Director of ethics committee of each institution in which we conduct our ARREST Trial, and from the Israeli Ministry of Health. We will also seek such
authorizations from the ethics committee and the Israeli Ministry of Health concerning any of our other or future clinical trials to be conducted in Israel.
Israeli Ministry of Health
Israel’s Ministry of Health, which regulates medical testing, has adopted guidelines that correspond, generally, to those of the FDA and the EMA,
making it comparatively straightforward for studies conducted in Israel to satisfy FDA and the EMA requirements, thereby enabling medical technologies
subjected to clinical trials in Israel to reach U.S. and EU commercial markets in an expedited fashion. Many members of Israel’s medical community have
earned international prestige in their chosen fields of expertise and routinely collaborate, teach and lecture at leading medical centers throughout the world.
81
Other Countries
In addition to regulations in the United States, the EU and Israel, we are subject to a variety of other regulations governing clinical trials and
commercial sales and distribution of drugs in other countries. Whether or not our product candidate or future product candidates receive approval from the
FDA, approval of such product candidates must be obtained by the comparable regulatory authorities of countries other than the United States before we can
commence clinical trials or marketing of the product in those countries. The approval process varies from jurisdiction to jurisdiction, and the time may be
longer or shorter than that required for FDA approval. The requirements governing the conduct of clinical trials and product licensing vary greatly from
country to country.
The requirements that we and our collaborators must satisfy to obtain regulatory approval by government agencies in other countries prior to
commercialization of our products in such countries can be rigorous, costly and uncertain. In the European countries, Canada and Australia, regulatory
requirements and approval processes are similar in principle to those in the United States. Additionally, depending on the type of drug for which approval is
sought, there are currently two potential tracks for marketing approval in the European countries: Mutual recognition and the centralized procedure. These
review mechanisms may ultimately lead to approval in all EU countries, but each method grants all participating countries some decision-making authority in
product approval. Foreign governments also have stringent post-approval requirements including those relating to manufacture, labeling, reporting, record
keeping and marketing. Failure to substantially comply with these on-going requirements could lead to government action against the product, us and/or our
representatives.
Related Matters
From time to time, legislation is drafted, introduced and passed in governmental bodies that could significantly change the statutory provisions
governing the approval, manufacturing and marketing of products regulated by the FDA or EMA and other applicable regulatory bodies to which we are
subject. In addition, regulations and guidance are often revised or reinterpreted by the national agency in ways that may significantly affect our business and
our therapeutic candidates. It is impossible to predict whether such legislative changes will be enacted, whether FDA or EMA regulations, guidance or
interpretations will change, or what the impact of such changes, if any, may be. We may need to adapt our business and therapeutic candidates and products to
changes that occur in the future.
Description of Property and Facilities
Our corporate headquarters are located at 16 Tiomkin Street, Tel Aviv, Israel, 6578317 pursuant to a lease to occupy approximately 356 square
meters of space. GRD entered into the lease agreement on March 22, 2015 with Mintz K. Construction Company (the “Lease Agreement”), following the
termination of GRD’s previous lease agreement at 8 Shaul Hamelech Blvd., Amot Mishpat Bldg., Tel Aviv, Israel, 6473307. The term of the lease is for four
years with an option, at the election of GRD, for two additional years. The aggregate quarterly rental payment for four years, together with adjustments and
the maintenance fees, is approximately NIS33,055 plus VAT. On February 27, 2017, GRD entered into an addendum to the Lease Agreement pursuant to
which GRD leased an additional 90 square meters for a space adjacent to the current premises, totaling in 446 square meters. The fees for the additional space
are payable quarterly in an aggregate amount of NIS 17,700 plus VAT.
ITEM 4A. Unresolved Staff Comments.
Not applicable.
ITEM 5. Operating and Financial Review and Prospects.
The following discussion and analysis of our financial condition and results of operations should be read in conjunction with “Item 3. Key
Information—Selected Financial Data” above and our financial statements and related notes that appear elsewhere in this annual report. In addition to
historical financial information, the following discussion contains forward-looking statements that reflect our plans, estimates and beliefs. Our actual results
could differ materially from those discussed in the forward-looking statements. Factors that could cause or contribute to these differences include those
discussed below and elsewhere in this prospectus, particularly in the sections titled “Risk Factors” and “Cautionary Note Regarding Forward-Looking
Statements.”
82
Overview
We are a clinical-stage biopharmaceutical company focused on the development of Aramchol, a first in class, novel, once-daily, oral therapy for the
treatment of NASH for variable populations, as well as other liver associated disorders. We believe that our product candidate, Aramchol, has the potential to
be a disease modifying treatment for fatty liver disorders, including NASH, which is a chronic disease that constitutes a large unmet medical need, and for
HIV-associated lipodystrophy and NAFLD.
On February 1, 2015, we began our ARREST Study, a multi-center, randomized, double-blind, placebo-controlled, dose-ranging Phase IIB clinical
trial of Aramchol in 248 OD patients who have been biopsy-diagnosed as having NASH. Our ARREST Study is in accordance with the study design
recommended by the MHRA and has been deemed acceptable by the BfArM and deemed satisfactory by the ANSM. The study design has been confirmed by
the FDA in a written pre-IND advice as acceptable for a Phase IIB study. The BfArM and ANSM also confirmed, in minutes of each of their respective
scientific advisory meetings, that if successful, this ARREST Study may serve as a basis for Phase III pivotal trial of Aramchol. The FDA and MHRA invited
us to discuss the next steps in the development of Aramchol after we analyze the results of the ARREST Study. If the Phase III trials are successful, we intend
to submit an NDA to the FDA and an MAA to the EMA for the approval of Aramchol for the treatment of NASH in the United States, Europe, China and
Latin America. We currently expect top line data from the ARREST Study to be available during the second quarter of 2018.
The interim analysis we conducted after 120 patients in our ARREST Study completed six months of treatment was limited to analysis of safety
related signals only, as conducted by the DMC. The DMC met on February 8, 2017 to review the accumulated safety data in accordance with a protocol
defined safety interim review. Following review of the data, the DMC recommended the continuation of the ARREST study without changes.
We are also exploring other indications for the use of Aramchol, including patients with HIV-associated lipodystrophy and NAFLD. On December 1,
2015, we announced that the FDA had allowed our IND application to proceed for the ARRIVE Study. The ARRIVE Study is an investigator-initiated study
sponsored by the University of California San Diego, where it will be conducted, and led by Professor Rohit Loomba. The Study is designed as a randomized,
double-blinded, allocation-concealed, placebo-controlled, proof-of-concept Phase IIA clinical trial, and will evaluate either Aramchol at 600 mg or placebo
for 16 weeks in up to 50 patients with HIV-associated lipodystrophy and NAFLD. Pre- and post-treatment MRI-measured liver fat content and total body fat
via DEXA will be compared. The primary end point of successful therapy will be an improvement in hepatic steatosis as measured by MRI. Secondary
endpoints will be an improvement in total body fat, metabolic profile, and liver biochemistry.
To date, we have successfully completed four clinical trials of Aramchol. The first was performed in two parts: (a) a single dose, double-blind,
placebo- controlled, Phase IA study with ascending doses of Aramchol in healthy volunteers in one center in Israel, in which no serious adverse side effects
were observed; and (b) a Phase IB repeated dose trial completed on healthy volunteers in one center in Israel also showed that Aramchol has no observable
adverse side effects and confirmed the suitability of a once-daily dose of Aramchol. Thereafter, we commenced a multi-center, randomized, double-blind,
placebo-controlled Phase IIA trial of Aramchol in 60 NAFLD and NASH patients in 12 centers in Israel. This study, which design was deemed acceptable by
the FDA in 2007 at a pre-IND scientific advisory meeting, suggested that Aramchol reduced liver fat in a dose dependent manner, as evidenced by a
statistically significant reduction of liver fat over a three month treatment period of once-daily 300 mg doses of Aramchol, and induces positive trends of
changes in several metabolic parameters. Additionally, we performed a single-site, randomized, partially double-blind, placebo-controlled PK and food effect
study conducted in three parts. The first part of the study assessed the PK, safety and tolerability of Aramchol tablets at single doses of either 200 mg or
400 mg under fasting conditions. The second part of the study evaluated the effect of a high-calorie, high-fat meal on the bioavailability of a single 600 mg
dose of Aramchol and assessed the safety and tolerability. The third part of the study assessed the PK and comparative bioavailability, safety and tolerability
of Aramchol tablets after repeated administrations of three different doses (200 mg, 400 mg and 600 mg) for ten consecutive days, with dosing occurring
following the consumption of a light meal. No serious adverse events or deaths occurred during the study. Adverse events were equally distributed between
placebo and Aramchol doses, were mild (with only one moderate adverse event) and the majority defined unrelated to Aramchol. Additionally, in 2016 we
performed the Chinese PK Study involving 64 healthy, Chinese volunteers, which consisted of two parts. Part A comprised of a single escalating dose to
evaluate the pharmacokinetics, safety and tolerability of Aramchol tablets at 400 mg and 600 mg. Part B was a randomised double blind study evaluating the
pharmacokinetics, safety and tolerability of Aramchol tablets at 400 mg and 600 mg dosed for ten consecutive days. No safety signal was identified in this
study and we deemed no changes were required in the enrollment of Chinese patients into the ARREST Study.
83
To date, we have not generated revenue from the sale of any product, excluding the licensing revenue we recorded in connection with the Samil
Agreement, and we do not expect to generate any significant revenue other than the amortization of the upfront payments under the license agreement with
Samil and of the subsequent royalties and/or milestones that may be earned in connection with the Samil Agreement or potential other license Agreements,
unless and until we commercialize Aramchol, or license the product to additional third parties. As of December 31, 2016, the Company had an accumulated
deficit of approximately $64.3 million
Our financing activities are described below under “Liquidity and Capital Resources.” Obtaining approval of an NDA, MMA, or other similar
application is an extensive, lengthy, expensive and uncertain process, and the FDA, EMA and other regulatory agencies may delay, limit or deny approval of
our product.
Financial Overview
We have funded our operations primarily through the sale of equity and debt securities in private equity offerings and debt financings in Israel to our
affiliates (which has subsequently been converted in whole to common equity; no debt remains on our balance sheet), shareholders and third-party investors,
and as of March 18, 2014, through the sale of our ordinary shares in our initial public offering and through our ATM Offering. At December 31, 2016, we had
current assets $15.7 million, which is mainly comprised of cash and cash equivalents of $3.1 million and short-term investment securities of $12.4 million.
This compares with current assets of $23.4 million at December 31, 2015, which is mainly comprised of cash and cash equivalents of $4.2 million and short-
term investment securities of $18.8 million. We believe that such existing funds and the proceeds from our initial public offering will be sufficient to continue
our business and operations as currently conducted through the first half of 2018. However, we will continue to incur operating losses, which may be
substantial over the next several years, and we may need to obtain additional funds to further develop our research and development programs.
Revenues
We have entered into the Samil Agreement for the commercialization of Aramchol in Korea. Under the terms of the Samil Agreement, we have
received upfront payments of $2.1 million, and may be eligible to receive up to approximately $6.0 million in additional payments for development and
regulatory milestones for Aramchol in the licensed territories.
For accounting purposes, the upfront payment has been recorded as deferred revenue. The deferred revenue is then amortized on a straight-line basis
over the contractual period and milestone payments are recognized once earned. Accordingly, during the year ended December 31, 2016, we recognized
revenue of $467 thousand.
Costs and Operating Expenses
Our current costs and operating expenses consist of two components: (i) research and development expenses; and (ii) general and administrative
expenses.
Research and Development Expenses
Our research and development expenses consist primarily of outsourced development expenses, salaries and related personnel expenses and fees paid
to external service providers, patent-related legal fees, costs of non-clinical studies and clinical trials and drug and laboratory supplies. We account for all
research and development expenses as they are incurred. We expect our research and development expense to remain our primary expense in the near future
as we continue to develop our products. Increases or decreases in research and development expenditures are primarily attributable to the number and/or
duration of the non-clinical and clinical studies that we conduct.
84
We expect that a substantial amount of our research and development expense in the future will be incurred in support of our current and anticipated
non-clinical and clinical development projects. Due to the inherently unpredictable nature of non-clinical and clinical development studies, we are unable to
estimate with any certainty the costs we will incur in the continued development of Aramchol for NASH and other indications in our pipeline for potential
partnering and/or commercialization. Clinical development timelines, the probability of success and development costs can differ materially from
expectations. We currently expect to continue testing our product candidate in non-clinical studies for toxicology, safety and efficacy, and to conduct
additional clinical trials for our product candidate.
While we are currently focused on advancing our product development, our future research and development expenses will depend on the clinical
success of our product candidate, as well as ongoing assessments of the candidate’s commercial potential. As we obtain results from clinical trials, we may
elect to discontinue or delay clinical trials for our product candidate in certain indications in order to focus our resources on more promising indications for
such product candidate. Completion of clinical trials may take several years or more, but the length of time generally varies according to the type, complexity,
novelty and intended use of a product candidate.
We expect our research and development expenses to increase in the future from current levels as we continue to advance of our clinical product
development and, potentially, the in-licensing of additional product candidates.
The lengthy process of completing clinical trials and seeking regulatory approval for our product candidate requires the expenditure of substantial
resources. Any failure or delay in completing clinical trials, or in obtaining regulatory approvals, could cause a delay in generating product revenue and cause
our research and development expenses to increase and, in turn, have a material adverse effect on our operations. Because of the factors set forth above, we
are not able to estimate with any certainty when we would recognize any net cash inflows from our projects.
General and Administrative Expenses
General and administrative expenses consist primarily of compensation for employees in executive and operational roles, including
finance/accounting, legal and other operating positions in connection with our activities. Our other significant general and administrative expenses include
non-cash stock-based compensation costs and facilities costs (including the rental expense for our offices in Tel Aviv, Israel), professional fees for outside
accounting and legal services, travel costs, investors relations, insurance premiums and depreciation.
Financial Income, Net
Our financial income consists of interest income from marketable securities and our financial expense consists of fees associated with banking
activities and losses from realization of marketable securities.
Critical Accounting Policies and Estimate
We prepare our financial statements in accordance with U.S. GAAP. In doing so, we must make estimates and assumptions that affect our reported
amounts of assets, liabilities and expenses, as well as related disclosure of contingent assets and liabilities. In some cases, we could reasonably have used
different accounting policies and estimates. Changes in the accounting estimates are reasonably likely to occur from period to period. Accordingly, actual
results could differ materially from our estimates. To the extent that there are material differences between these estimates and actual results, our financial
condition or results of operations will be affected. Significant estimates include, but are not limited to, those related to deferred revenue, revenue recognition,
stock-based compensation and accounting for income taxes, including valuation allowances. For further significant accounting policies please see Note 2 to
our audited consolidated financial statements of this annual report. We believe that our accounting policies contained therein are critical in fully understanding
and evaluating our financial condition and operating results.
85
Jumpstart Our Business Startups Act of 2012
We are an emerging growth company within the meaning of the rules under the Securities Act and we will utilize certain exemptions from various
reporting requirements that are applicable to public companies that are not emerging growth companies. We could remain an “emerging growth company” for
up to five years from the date of our first sale of common equity securities pursuant to an effective registration statement under the Securities Act, or until the
earliest of (a) the last day of the first fiscal year in which our annual gross revenue exceeds $1 billion (as such amount is indexed for inflation every five years
by the SEC to reflect the change in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics, setting the threshold to
the nearest $1.0 million) or more, (b) the date that we become a “large accelerated filer” as defined in Rule 12b-2 under the Exchange Act, which would occur
if the market value of our ordinary shares that is held by non-affiliates exceeds $700.0 million as of the last business day of our most recently completed
second fiscal quarter, or (c) the date on which we have issued more than $1 billion in nonconvertible debt during the preceding three year period.
The JOBS Act also permits us, as an “emerging growth company,” to take advantage of an extended transition period to comply with certain new or
revised accounting standards if such standards apply to companies that are not issuers. We are choosing to “opt out” of this provision and, as a result, we will
comply with new or revised accounting standards when they are required to be adopted by issuers. This decision to opt out of the extended transition period
under the JOBS Act is irrevocable.
Stock-Based Compensation and Fair Value of Ordinary Shares
We apply ASC 718-10, “Share-Based Payment,” which requires the measurement and recognition of compensation expense for all share-based
payment awards made to employees and directors, including employee stock options under the Company’s stock plans, based on estimated fair values. ASC
718-10 requires companies to estimate the fair value of equity-based payment awards on the date of the grant using an option-pricing model. The value of the
portion of the award that is ultimately expected to vest is recognized as an expense over the requisite service periods in the Company’s consolidated statement
of operations. The foregoing estimates of fair value that the Company has made are highly complex and subjective. The estimates of the fair value of the
Company’s ordinary shares will not be necessary to estimate the fair value of new awards as the shares started trading on the Nasdaq Capital Market as of
March 2014.
We recognize compensation expense for the value of non-employee awards, which have graded vesting, based on the accelerated attribution method
over the requisite service period of each award, net of estimated forfeitures. We recognize compensation expense for the value of employee awards that have
graded vesting, based on the straight-line method over the requisite service period of each of the awards, net of estimated forfeitures.
In determining the fair value of our ordinary shares that was used to value previous equity issuances, we relied upon previous offering valuations
while taking into account the clinical development of the Company’s product candidate. We believe that the fair value of our ordinary shares has continuously
increased since inception as the development of our product candidate has continuously progressed.
The valuations were performed contemporaneously with the offerings of ordinary shares to which such valuations relate. Such valuations were
conducted by us and were directly observable in the marketplace. Such valuations were in accordance with the provisions of ASC 820-35 and based on the
purchase price paid by new external and independent investors with pharmaceutical or financial expertise, who purchased our convertible notes
contemporaneously with or around the time of our equity issuances. Increases in the Company’s valuations were based upon the progress in the clinical
development of our product candidate, submissions of new families of patent applications for new potential indications and new formulations of our product
candidate, an investment round and our initial public offering in March 2014.
86
Results of Operations
The table below provides our results of operations (which reflect the results of operations of the Company, post reorganization, as well as the
financial data of the GHI, our predecessor, prior to the Reorganization for the year ended December 31, 2016 as compared to the years ended December 31,
2015, 2014 and 2013.
Licensing Revenue
Research and development expenses
General and administrative expenses
Capital Loss
Operating loss
Financial (income) expenses, net
Operating loss post-finance expense & other income, net
Taxes on income
Net loss
Comprehensive loss
Loss per share
2014
Year Ended December 31,
2015
(thousands)
2016
$
$
$
$
— $
6,664
2,478
—
9,142
(40)
9,102
1
9,103 $
9,099 $
(*) 0.88 $
— $
7,629
3,246
—
10,875
(253)
10,622
-
10,622 $
10,832 $
0.96 $
(467)
14,271
3,078
—
16,882
(35)
16,847
106
16,953
16,832
1.49
(*) Retroactively adjusted to reflect the 729:1 share split, which occurred upon the consummation of the Reorganization.
Licensing Revenue
Licensing revenue amounted to $467 thousand during the year ended December 31, 2016, compared to no revenue for the year ended December 31,
2015. The above mentioned revenue resulted from the amortization of the upfront payments under the Samil Agreement.
Research and Development Expenses
Our research and development expenses amounted to approximately $14.3 million during the year ended December 31, 2016, representing an
increase of approximately $6.7 million, or approximately 88%, compared to approximately $7.6 million for the year ended December 31, 2015. The increase
primarily resulted from an increase in research and development subcontractor expenses in connection with the ARREST Study of approximately $3.9 million
and other studies of an aggregate of approximately $1.7 million. The increase in the research and development expenses is also as a result of an increase in
employee salaries and benefits, consisting of non-cash stock-based compensation of approximately $646 thousand and salaries paid to employees in the
amount of approximately $196 thousand.
Our research and development expenses amounted to approximately $7.6 million during the year ended December 31, 2015, representing an increase
of approximately $965 thousand, or approximately 14%, compared to approximately $6.7 million for the year ended December 31, 2014. The increase
primarily resulted from an increase in research and development subcontractor expenses in connection with the ARREST Study of approximately $2.8
million, which were partially offset by a decrease in drug development related expenses of approximately $2.0 million, as compared to such expenses for the
comparable prior year.
General and Administrative Expenses
Our general and administrative expenses amounted to approximately $3.1 million for the year ended December 31, 2016, representing a decrease of
approximately $168 thousand, or 5%, compared to approximately $3.2 million for the year ended December 31, 2015. The decrease primarily resulted from a
decrease in investor relations and business development expenses.
Our general and administrative expenses amounted to approximately $3.2 million for the year ended December 31, 2015, representing an increase of
approximately $768 thousand, or approximately 31%, compared to approximately $2.5 million for the year ended December 31, 2014. The increase primarily
resulted from an increase in salaries and benefits to new employees hired since the comparable prior year period, consisting of non-cash stock-based
compensation of approximately $257 thousand and salaries paid to employees in the amount of approximately $164 thousand. The increase in the general and
administrative expenses is also as a result of an increase in professional services of approximately $290 thousand, which includes primary legal, accounting
and investor relations and business development expenses.
87
Operating Loss
As a result of the foregoing research and development and general and administrative expenses, as well as our failure to generate substantial
operating revenues, our operating loss for the year ended December 31, 2016 was approximately $16.9 million, representing an increase in our operating loss
of approximately $6.0 million, or approximately 55%, compared to approximately $10.9 million for the year ended December 31, 2015.
Our operating loss for the year ended December 31, 2015 was approximately $10.9 million, representing an increase in our operating loss of
approximately $1.8 million, or approximately 20%, compared to approximately $9.1 million for the year ended December 31, 2014.
Financial Income (Expense), Net
Our financial income, net, for the year ended December 31, 2016 was approximately $35 thousand, representing a decrease of approximately $218
thousand, or approximately 86%, compared to approximately $253 thousand for the year ended December 31, 2015. The decrease primarily resulted from an
increase in realized losses from marketable securities.
Our financial income, net, for the year ended December 31, 2015 was approximately $253 thousand, representing an increase of approximately $213
thousand, or approximately 533%, compared to approximately $40 thousand for the comparable prior year period. The increase primarily resulted from an
increase in interest income from marketable securities and short-term deposit resulting from our implementation of a cash management strategy during the
year in an effort to generate revenues with excess liquidity.
Net Loss
Our net loss for the year ended December 31, 2016 was approximately $17.0 million, representing an increase of approximately $6.4 million, or
approximately 60%, compared to approximately $10.6 million for the year ended December 31, 2015. The increase primarily resulted from the above
mentioned increase in research and development expenses.
Our net loss for the year ended December 31, 2015 was approximately $10.6 million, representing an increase of approximately $1.5 million, or
approximately 16%, compared to $9.1 million for the year ended December 31, 2014. The increase primarily resulted from the above mentioned increase in
research and development expenses and general and administrative expenses.
Liquidity and Capital Resources
Overview
To date, we have funded our operations primarily through the sale of equity and debt securities in private equity offerings and debt financings in
Israel to our affiliates (that has subsequently been converted in whole to common equity; no debt or debt-related securities remains on our balance sheet),
shareholders and third-party investors, and as of March 18, 2014, through the sale of our ordinary shares in our initial public offering (approximately $39.9
million of net proceeds) and through our ATM Offering (approximately $4.5 million of net proceeds), and as well, through the upfront payment received from
Samil (approximately $2.1 million). Furthermore, under our Sales Agreement, we may still raise up to approximately $13.5 million through the sale of
additional ordinary shares in our ATM Offering.
88
We have incurred substantial losses since our inception. As of December 31, 2016, we had an accumulated deficit of approximately $64.3 million
and working capital (current assets less current liabilities) of approximately $11.2 million. Do to our expectation that we will continue to not generate
substantial revenues for the foreseeable future, we expect that losses will continue for the foreseeable future.
As of December 31, 2016, we had cash and cash equivalents of approximately $3.1 million and marketable securities of approximately $12.4 million
invested in accordance with our investment policy, totaling approximately $15.5 in highly-liquid assets, as compared to approximately $4.2 million and
approximately $18.8 million as of December 31, 2015, totaling approximately $23.0 million in highly-liquid assets, respectively. The decrease is primarily
attributable to our net loss of approximately $17.0 million for the year ended December 31, 2016, partially offset by approximately $4.5 million, net of
issuance expenses from our ATM Offering and the upfront payment of approximately $2.1 million received from Samil.
As of December 31, 2015, we had cash and cash equivalents of approximately $4.2 million and marketable securities of approximately $18.8
million, totaling approximately $23.0 million in highly-liquid assets, as compared to approximately $23.7 million and approximately $8.2 million as of
December 31, 2014, respectively. The decrease is mainly attributable to our net loss of approximately $10.6 million for the year ended December 31, 2015.
Cash Flow From Operating Activities
We had negative cash flow from operating activities of approximately $12.1 million for the year ended December 31, 2016 as compared to a
negative cash flow from operating activities of approximately $8.5 million for the year ended December 31, 2015. The negative cash flow from operating
activities for the year ended December 31, 2016 was mainly attributable to our net loss of approximately $17.0 million, offset by a stock-based compensation
expense of approximately $1.6 million and an increase of upfront payment for license fee of approximately $1.6 million.
We had negative cash flow from operating activities of approximately $8.5 million for the year ended December 31, 2015 as compared to a negative
cash flow from operating activities of approximately $9.2 million for the year ended December 31, 2014. The negative cash flow from operating activities for
the year ended December 31, 2015 was mainly attributable to our net loss of approximately $10.6 million, offset by a stock based compensation expense of
approximately $970 thousand and an increase of trade payables of approximately $1.4 million.
Cash Flow From Investing Activities
We had positive cash flow from investing activities of approximately $6.3 million for the year ended December 31, 2016 as compared to a negative
cash flow from investing activities of approximately $11.1 million for the year ended December 31, 2015. The positive cash flow from investing activities for
the year ended December 31, 2016 was mainly due to proceeds from sale of marketable securities in the amount of approximately $14.0 million, offset by
investment in marketable securities in the amount of approximately $7.6 million.
We had negative cash flow from investing activities of approximately $11.1 million for the year ended December 31, 2015 as compared to a negative
cash flow from investing activities of $9.0 million for the year ended December 31, 2014. The negative cash flow from investing activities for the year ended
December 31, 2015 was mainly due to an investment in marketable securities in the amount of approximately $26.5 million, offset by maturity of marketable
securities and short term deposits in the amount of approximately $15.5 million.
Cash Flow From Financing Activities
We had positive cash flow from financing activity of approximately $4.7 million for the year ended December 31, 2016 as compared no cash flow
from financing activities for the year ended December 31, 2015. The positive cash flow from financing activity for the year ended December 31, 2016 was
mainly due to net proceeds from our ATM Offering in the amount of approximately $4.5 million, net of issuance expenses.
89
We did not generate any cash flow from financing activity for the year ended December 31, 2015 as compared to a positive cash flow from financing
activities of approximately $41.9 million for the year ended December 31, 2014. The positive cash flow from financing activities for the year ended
December 31, 2014 was primarily due to the issuance of our ordinary shares in our initial public offering for net proceeds of approximately $39.9 million and
the issuance of our ordinary shares in the amount of $2.0 million in a private placement financing completed in February 2014, prior to the consummation of
our initial public offering.
We believe that our existing cash resources will be sufficient to fund our projected cash requirements approximately through the first half of 2018.
Nevertheless, we will require significant additional financing in the future to fund our operations if and when we progress into Phase III trials of Aramchol
and clinical trials for other indications and other research and development related activities.
Current Outlook
According to our current financial forecast, if we are not successful in obtaining additional capital resources, there is substantial doubt that we will
be able to continue our activities beyond the first half of 2018. Even with the funds raised in our initial public offering and ATM Offering, we believe that we
will need to raise significant additional funds before we have any cash flow from operations, if at all.
Developing drugs, conducting clinical and non-clinical trials and commercializing products is expensive and we will need to raise substantial
additional funds to achieve our strategic objectives. We believe that our existing cash resources and the net proceeds from our initial public offering and ATM
Offering will be sufficient to fund our projected cash requirements approximately through the first half of 2018. Nevertheless, we will require significant
additional financing in the future to fund our operations, including if and when we progress into Phase III trials of Aramchol for the treatment of NASH in
OD patients and clinical trials for other indications, obtain regulatory approval for Aramchol and commercialize the drug. We currently anticipate that we will
utilize approximately $12 million to support our research and development activity and the related general and administrative expenses over the course of the
next 12 months. Our future capital requirements will depend on many factors, including:
·
·
·
·
·
·
·
·
·
·
·
the progress and costs of our non-clinical studies, clinical trials and other research and development activities;
the scope, prioritization and number of our clinical trials and other research and development programs;
the amount of revenues and contributions we receive under future licensing, development and commercialization arrangements with respect
to our product candidate;
the costs of the development and expansion of our operational infrastructure;
the costs and timing of obtaining regulatory approval for our product candidate;
the ability of us, or our collaborators, to achieve development milestones, marketing approval and other events or developments under our
potential future licensing agreements;
the costs of filing, prosecuting, enforcing and defending patent claims and other intellectual property rights;
the costs and timing of securing manufacturing arrangements for clinical or commercial production;
the costs of contracting with third parties to provide sales and marketing capabilities for us;
the costs of acquiring or undertaking development and commercialization efforts for any future products, product candidates or platforms;
the magnitude of our general and administrative expenses; and
90
·
any cost that we may incur under future in- and out-licensing arrangements relating to our product candidate.
Until we can generate significant recurring revenues, we expect to satisfy our future cash needs through the net proceeds from our initial public
offering, debt or equity financings (such as the ATM Offering) or by out-licensing applications of our product candidate. We cannot be certain that additional
funding will be available to us on acceptable terms, if at all. If funds are not available, we may be required to delay, reduce the scope of or eliminate research
or development plans for, or commercialization efforts with respect to, one or more applications of our product candidate. This may raise substantial doubts
about the Company’s ability to continue as a going concern.
Contractual Obligations
The following table summarizes our significant contractual obligations at December 31, 2016.
Facility leases (1)
Purchase Obligations
Termination payment (2)
Total
Total
Less than 1 year
1 – 3 years
(in thousands)
$
$
115 $
3,330
270
3,715 $
52 $
1,996
-
2,048 $
63 $
1,334
-
1,397 $
3 – 5 years
More than 5 years
- $
-
-
- $
-
270
270
(1) For a more detailed description of the facility leases, see “Description of Property and Facilities” above.
(2) Consists of remuneration for our Chief Executive Officer’s non-competition undertakings, in the event of termination of his employment, other than
for cause.
The above mentioned obligations relates to agreements with medical facilities in connection with ongoing clinical trials. We have included as
purchase obligations our commitments under agreements to the extent they are quantifiable and are not cancelable. We enter into contracts in the ordinary
course of business with CROs for clinical trials and clinical supply manufacturing and with vendors for non-clinical research studies and other services and
products for operating purposes, which generally provide for termination within 30 days of notice, and therefore are cancelable contracts and not included in
the Contractual Obligations table above.
Other than as described above, we did not have any material commitments for capital expenditures, including any anticipated material acquisition of
plant and equipment or interests in other companies, as of December 31, 2016.
Trend Information
We are a development stage company and it is not possible for us to predict with any degree of accuracy the outcome of our research, development
or commercialization efforts. As such, it is not possible for us to predict with any degree of accuracy any known trends, uncertainties, demands, commitments
or events that are reasonably likely to have a material effect on our net sales or revenues, income from continuing operations, profitability, liquidity or capital
resources, or that would cause reported financial information to not necessarily be indicative of future operating results or financial condition. However, to the
extent possible, certain trends, uncertainties, demands, commitments and events are in this “Operating and Financial Review and Prospects.”
Off-Balance Sheet Arrangements
The Company currently does not have any off-balance sheet arrangements that have had, or are reasonably likely to have, a current or future effect
on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that
are material to investors.
91
ITEM 6. Directors, Senior Management and Employees.
A. Directors and Senior Management.
Set forth below is information concerning the directors, senior management and executive officers of the Company as of March 16, 2017, the latest
practicable date for inclusion in this annual report. The business address for each of our directors, senior management and corporate officers is c/o Galmed
Pharmaceuticals Ltd., 16 Tiomkin St., Tel Aviv 6578317, Israel.
Name
Age
Position
Chaim Hurvitz(1)(2)(6)
Allen Baharaff
Dr. Tali Gorfine(9)
Dr. Liat Hayardeny
Yohai Stenzler(7)
George Tonelli(8)
Guy Nehemya
Yael Hollander
William Marth(1)(2)(6)
Shmuel Nir(2)(3)(4)
Tali Yaron-Eldar(2)(3)(4)(5)(6)
David Sidransky, M.D. (1)(2)(3)(4)(5)(6)
Prof. Ran Oren, M.D.(9)
56
Chairman of the Board, Class III Director; Chairman of the R&D
Committee
52
47
50
34
57
32
34
62
54
52
55
65
President and Chief Executive Officer, Class II Director
Chief Medical Officer
Chief Scientist Officer
Chief Financial Officer
Vice President, Clinical Operations
Vice President, Operations
Vice President, Legal Affairs and Strategy
Class III Director, Chairman of our Nomination Committee
Class I Director
External Director; Chairman of our Audit Committee, Chairman of our
Remuneration Committee
External Director
Director, Class II director nominee
(1) A member of our research & development committee, or our R&D Committee.
(2) Independent director under applicable Nasdaq Capital Market and SEC rules, as affirmatively determined by our Board.
(3) A member of our audit committee, or our Audit Committee.
(4) A member of our remuneration committee, or our Remuneration Committee.
(5) An external director under the Companies Law, approved by our shareholders.
(6) A member of our Nomination Committee.
(7) On November 7, 2016, we announced that Mr. Josh Blacher, the Company's then-Chief Financial Officer, had notified the Company of his desire to leave
the Company to pursue other opportunities effective as of January 31, 2017. The Company accepted Mr. Blacher's decision and intends to appoint a new
Chief Financial Officer in due course. In the meantime, the Company approved the appointment of CPA Yohai Stenzler, to serve as the Company's
interim Chief Financial Officer. Mr. Stenzler's employment with the Company commenced on June 1, 2014, where he previously served as a Controller
and subsequently served as the Company's Director of Finance. On March 15, 2017, our Board approved the appointment of Mr. Stenzler as the
Company's permanent Chief Financial Officer.
(8) The Company engages George Tonelli, our VP Clinical Operations, through a services agreement. The services agreement expires on April 30, 2017 and
the parties to the agreement have agreed not to extend it for an additional period. Therefore, Mr. Tonelli will stop providing services to the Company and
to act as its VP Clinical Operations, effective as of April 30, 2017. On February 7, 2017, in exchange for the extension of the services agreement through
April 30, 2017, Mr. Tonelli agreed to waive and/or release any demands and/or claims against the Company.
92
(9) On March 15, 2017, the Board appointed Prof. Ran Oren, M.D., the Company's then Chief Medical Officer, to serve as a member of the Board until the
close of the annual general meeting of shareholders of the Company to be held in 2017 (the "2017 AGM"). In addition, the Board has recommended that
the shareholders elect, at the 2017 AGM, Prof. Oren as a class II director until the close of the annual general meeting to be held in 2019. In connection
with the appointment of Prof. Oren as a member of the Board, on March 15, 2017 the Board also approved the appointment of Dr. Tali Gorfine, the
Company's Senior Medical Director, as the Company’s Chief Medical Officer, to succeed Prof. Ran Oren.
Chaim Hurvitz, our chairman of the Board and the Chairman of our R&D Committee joined our Board in 2011. Mr. Hurvitz currently serves as the
Chief Executive Officer of CH Health, a private venture capital firm, a position he has held since May 2011. Mr. Hurvitz served as a member of the board of
directors of Teva Pharmaceuticals Industries Ltd. from 2010 to 2014. Previously, he was a member of the senior management of Teva Pharmaceuticals
Industries Ltd., serving as the President of Teva International Group from 2002 until 2010, as President and Chief Executive Officer of Teva Pharmaceuticals
Europe from 1992 to 1999 and as Vice President - Israeli Pharmaceutical Sales from 1999 until 2002. Mr. Hurvitz presently serves as a member of the
management of the Manufacturers Association of Israel and head of its pharmaceutical branch. Mr. Hurvitz holds a Bachelor of Arts degree in political
science and economics from Tel Aviv University, which was awarded in 1985.
Allen Baharaff, our controlling shareholder, President and Chief Executive Officer and a member of our Board, co-founded the Group in 2000,
served as the Chief Financial Officer of GHI from 2000 until January 2015, and has served as our Chief Executive Officer since January 2012 and as our
President since March 2015. Previously, he held a number of senior executive positions, including a Senior Vice President position at Isramex Projects Ltd.,
an energy project financing company, and Managing Director of T+M Trusteeship & Management Services (Israel) Ltd., a subsidiary of a Swiss company
providing trust and similar services. Since 2005, Mr. Baharaff serves as a Director of the Rubin Museum. Mr. Baharaff holds a Bachelor of Science degree in
economics from the London School of Economics, University of London and LLB and MA degrees from Cambridge University. Since 1993, Mr. Baharaff
has been a member of the Israel Bar Association.
Dr. Tali Gorfine, our Chief Medical Officer since March 15, 2017, joined the Company in May 2016 as the Company's Senior Medical Director. In
her role as Senior Medical Director, Dr. Gorfine provided the Company with expertise regarding the Company's clinical development plan and was the point
of contact for all medical related issues. Prior to joining the Company, Dr. Gorfine served as “Senior Clinical Program Leader” at Teva Pharmaceuticals Ltd.,
where she led the product strategy and clinical development of Phase II and III assets. Dr. Gorfine holds a MD, PhD from Tel-Aviv University with a
specialization in functional magnetic resonance imaging (fMRI). Dr. Gorfine succeeded Prof. Ran Oren, in connection with Prof. Oren's appointment to the
Board on March 15, 2017.
Dr. Liat Hayardeny, our Chief Scientific Officer (“CSO”), joined the Company in September 2016 bringing more than 16 years of experience in drug
development at all stages as part of Teva Pharmaceuticals’ global Resarch and Development Division. Prior to joining Galmed, Dr. Hayardeny served as
Teva’s Senior Director and Head of Research Scientific Affairs. In that capacity, Dr. Hayardeny established the scientific positioning of Teva’s innovative
compounds. Additionally, Dr. Hayardeny was responsible for Teva’s relationship with institutions of higher education; managing Teva’s global research
collaborations and publications. Dr. Hayardeny holds a Ph.D. from Sackler School of Medicine and an MBA from Recanati Business School at Tel Aviv
University.
Yohai Stenzler, our Chief Financial Officer, has served in such capacity since February 1, 2017. Mr. Stenzler joined the Company in June 2016 as the
company's corporate controller, and later on served as the Company's Director of Finance. Mr. Stenzler has six years of financial management experience as
an accountant at the real estate department at Ernst & Young LLP, where he was involved in financing, taxes, auditing, advising and accounting of public and
private companies, both domestic and international. Mr. Stenzler is a certified CPA and holds a MBA in Finance from Recanati Business School at Tel Aviv
University, and a BA in Economics and Accounting from Ben-Gurion University of the Negev.
George Tonelli, our Vice President, Clinical Operations, has served in such capacity since March 2015. Mr. Tonelli has 25 years of progressive
experience in clinical development operations and regulatory affairs. Prior to joining the Company, Mr. Tonelli planned and managed diabetes trials at
MannKind Corporation from 2005 to 2014, culminating in FDA approval of Afrezza® Inhalable Insulin. Prior to joining Mankind Corporation, Mr. Tonelli
held leadership positions in clinical development and project management at Innapharma. He began his career in regulatory affairs in the Medical Research
Division of American Cyanamid (Lederle Labs). He holds a Bachelor of Science degree from Rutgers University. The Company engages Mr. Tonelli through
a services agreement. The services agreement expires on April 30, 2017 and the parties to the agreement have agreed not to extend it for an additional period.
Therefore, Mr. Tonelli will stop providing services to the Company and to act as its VP Clinical Operations, effective as of April 30, 2017. On February 7,
2017, in exchange for the extension of the services agreement through April 30, 2017, Mr. Tonelli agreed to waive and/or release any demands and/or claims
against the Company.
93
Guy Nehemya, our Vice President, Operations, has served in such capacity since March 2017. Mr. Nehemya joined the Company in October 2013 as
the Company's Director of Operations, after completing his internship at Agmon, Rosenberg, HaCohen & Co. Law Offices. Mr. Nehemya was a key member
of management during the Company’s initial public offering and execution thereof. Mr. Nehemya, holds a LL.B. from the College of Management and is
currently completing his MBA degree at the IDC Herzliya. Mr. Nehemya has been a member of the Israeli Bar Association since 2012.
Yael Hollander, our Vice President, Legal Affairs and Strategy, has served in such capacity since March 2017. Ms. Hollander, joined the Company in
July 2014 as the Company's General Counsel and Corporate Secretary. Ms. Hollander has five years of experience as a commercial lawyer at Gross,
Kleinhendler, Hodak, Halevy, Greenberg & Co. law offices, where she was involved in the representation of both publicly-traded and private companies in
connection with corporate finance, public offerings, mergers and acquisitions, commercial transactions, corporate governance, and other securities related,
legal and business issues. Ms. Hollander holds a MBA in Finance from Recanati Business School at Tel Aviv University, and a LL.B. and BA in Economics
from the Hebrew University of Jerusalem. Ms. Hollander has been a member of the Israeli Bar Association since 2010.
William Marth, a director of the Company since May 2012, serves as president and chief executive officer of Albany Molecular Research Inc. since
January 2014. Previously, Mr. Marth served as a Director of Albany Molecular Research Inc. He also served as Chairman of the Board from June to
December 2013. Prior to this, he served as President and Chief Executive Officer of Teva Pharmaceutical Industries Ltd. in the Americas from June 2010 to
November 2012 and Chief Executive Officer of Teva North America from January 2008 to June 2010 and CEO of Teva USA from January 2005 to January
2008. In addition, Mr. Marth worked with several large equity firms providing guidance on their healthcare investments. He was a member of Teva’s global
executive management team from 2007 to 2012. From July 1999 to January 2002, he was the Executive Vice President and Vice President of Sales and
Marketing for Teva USA. Prior to joining Teva USA, he held various positions with the Apothecon division of Bristol-Myers Squibb. Mr. Marth earned his
B.Sc. in Pharmacy from the University of Illinois in 1977 and his M.B.A. in 1989 from the Keller Graduate School of Management, DeVry University. He is
a pharmacist and is currently the Chairman of the Board of Directors of Sorrento Therapeutics, and a director at the University of Illinois at Chicago College
of Pharmacy (UIC). Previously, Mr. Marth served as the Chairman of the Board of the Generic Pharmaceutical Association (GPhA) in 2008 and 2009 and the
American Society for Health-System Pharmacists (ASHP) in 2010, and various boards and committees, including the University of the Sciences in
Philadelphia and the Board of Ambassadors for John Hopkins’ Project RESTORE.
Shmuel Nir, a director of the Company since 2007, serves as President and Chief Executive Officer of Tushia Consulting Engineers Ltd., an
investment and management services company. From January 2001 to January 2016, Mr. Nir served as Chairman of the board of directors of Matan Digital
Printers Ltd. From March 1998 to January 2008, he served as President and Chief Executive Officer of Macpell Industries Ltd., a leading industrial group.
Between January 1991 and March 1998, Mr. Nir was an Executive Vice President of Operations at Macpell Industries Ltd. and President and Chief Executive
Officer of two of its subsidiaries, New Net Industries Ltd. and New Net Assets Ltd. Prior to January 1991, Mr. Nir had held various positions with Intel
Corporation in Jerusalem, Israel and Tefen Management Consulting. Between 1999 and 2006, Mr. Nir served as managing partner at Spring Venture Capital
Fund. Mr. Nir holds a B.Sc. in Industrial Engineering and Management from the Technion - Israel Institute of Technology in Haifa, which was awarded in
1989.
Tali Yaron-Eldar, an external director and the chairman of our Audit Committee and Remuneration Committee, joined our Board in March 2014. Ms.
Yaron-Eldar is an Israeli attorney specializing in taxation and co-founded Yaron-Eldar, Paller, Schwartz & Co., Law Offices, in January 2013. Prior to January
2013, she was a partner at the law firm of Tadmor & Co. from March 2007 until December 2012 and a partner at the law firm of Cohen, Yaron-Eldar & Co.
from 2004 until March 2007. From January 2004 until January 2008, Ms. Yaron-Eldar served as the Chief Executive Officer of Arazim Investment Company
and she has also served in a variety of public positions, including as the Chief Legal Advisor of the Customs and V.A.T department of the Finance Ministry of
the State of Israel from 1998 to 2001 and as the Commissioner of Income Tax and Real Property Tax Authority of the State of Israel from 2002 to 2004. Ms.
Yaron-Eldar also serves as a director of a number of public companies, including Rossetta Genomics Ltd., Medtechnica Ltd., Magicjack Vocaltec Ltd., Lodgia
Rotex Investments Ltd., Tadea Technological Development and Automation Ltd among others. Ms. Yaron-Eldar holds an M.B.A. specializing in finance from
Tel Aviv University which was awarded in 1995 and an LL.B. from Tel Aviv University which was awarded in 1987. Ms. Yaron-Eldar is also a member of the
Israeli Bar Association.
94
David Sidransky, M.D., an external director and the chairman of our Nomination Committee, joined our Board in June 2014. Dr. Sidransky is a
renowned oncologist and research scientist named and profiled by TIME magazine in 2001 as one of the top physicians and scientists in America, recognized
for his work with early detection of cancer. He serves as the Director of the Head and Neck Cancer Research Program at the Sidney Kimmel Comprehensive
Cancer Center at Johns Hopkins University. He is a Professor of Oncology, Otolaryngology, Cellular & Molecular Medicine, Urology, Genetics, and
Pathology at John Hopkins University and Hospital. Dr. Sidransky has written over 500 peer-reviewed publications, and has contributed to more than 60
cancer reviews and chapters. Dr. Sidransky is a founder of a number of biotechnology companies and holds numerous biotechnology patents. He has been the
recipient of many awards and honors, including the 1997 Sarstedt International prize from the German Society of Clinical Chemistry, 1998 Alton Ochsner
Award Relating Smoking and Health by the American College of Chest Physicians and the 2004 Hinda Rosenthal Award presented by the American
Association of Cancer Research. Dr. Sidransky has served as Vice Chairman of the Board of Directors of ImClone. He is Chairman of the Board of
Champions Oncology, Advaxis, and Tamir Biotechnology and is on the board of directors of Rosetta Genomics Ltd. and Orgenesis Inc. He is serving and has
served on scientific advisory boards of corporations and institutions, including Amgen, MedImmune, Roche and Veridex, LLC (a Johnson & Johnson
diagnostic company), among others. In addition, Dr. Sidransky served as Director of American Association for Cancer Research from 2005 to 2008.
Dr. Sidransky received his B.A. from Brandeis University and his M.D. from the Baylor College of Medicine.
Prof. Ran Oren, M.D. joined our Board on March 15, 2017 and has served as a member of our scientific advisory board since 2014, and as the
Company's Chief Medical Officer from August 1, 2016 to March 14, 2017. Prof. Oren is a Professor of Gastroenterology & Hepatology at the Faculty of
Medicine, Hebrew University of Jerusalem, Israel, and is the Head of the Institute of Gastroenterology and Liver Disease at Hadassah Medical Center,
Jerusalem, Israel. Prof. Oren has received numerous academic and professional awards in his field and holds several patents related to the prevention and
arresting of human liver disease. In 2000, Prof. Oren established the Liver Unit at the Tel Aviv Sourasky Medical Center, where he served as Chief of
Medicine from 2008 to 2010. Prof. Oren concurrently served as the President of the Israeli Association for the Study of the Liver between 2007 and 2010.
Prof. Oren, in his role as the Company's CMO, succeeded Dr. Maya Halpern, who retired from the Company in April 2016.
There are no family relationships between any director or executive officer. There are no arrangements or understandings with major shareholders,
customers, suppliers or others, pursuant to which any director or executive officer was selected as a director or member of senior management, as the case
may be.
Scientific Advisory Board
We seek advice from our Scientific Advisory Board generally on scientific and medical matters. Our Scientific Advisory Board includes: Professor
Vlad Ratziu, from the University Pierre et Marie Curie in Paris, France and coordinator of the EU FP7 FLIP consortium; Professor Scott Friedman from the
Icahn School of Medicine at Mount Sinai in New York, United States; Professor Arun Sanyal, from the Virginia Commonwealth University in Richmond,
Virginia; Professor Rohit Loomba, from the University of California San Diego School of Medicine in San Diego, California; Professor Jose Mato, from CIC
bioGUNE and CIC biomaGUNE, Spain; Professor Eric Gershwin, Chief, Division of Rheumatology Allergy and Clinical Immunology of University of
California at Davis, in Davis, California; and Professor Ran Oren from Hadassah University Hospital in Ein Kerem, Jerusalem, Israel.
95
B. Compensation.
Certain Approvals Required for Office Holders’ Compensation of the Companies Law
Pursuant to the Companies Law, the Company was required to adopt a compensation policy regarding the Terms of Office and Employment of its
Office Holders (as such terms are defined below), which includes exemption and release of the Office Holders from liability for breach of his or her duty of
care to the Company, an undertaking to indemnify the Office Holder, post factum indemnification or insurance; any grant, payment, remuneration,
compensation, or other benefit provided in connection with termination of service; and any benefit, other payment or undertaking to provide any payment as
aforesaid, or the Terms of Office and Employment. The Company’s compensation policy with respect to the Terms of Office and Employment of the
Company’s Office Holders, or the Compensation Policy, was approved by the Board in November 2014 after considering the recommendations of the
Remuneration Committee and was adopted by the Company’s shareholders in December 2014.
The term ‘Office Holder’ as defined in the Companies Law includes a general manager, chief business manager, deputy general manager, vice
general manager, any other person fulfilling or assuming the responsibilities of any of the foregoing positions without regard to such person’s title, as well as
a director, or a manager directly subordinate to the general manager or the chief executive officer. As of March 16, 2017, the latest practicable date for
inclusion in this annual report, in addition to the seven members of the Board (including the Company's President and Chief Executive Officer), the Company
considers six other individuals, including its Chief Medical Officer, its Chief Scientist Officer, its Chief Financial Officer, its Vice President, Clinical
Operations, its Vice President, Operations and its Vice President, Legal Affairs and Strategy, to be Office Holders.
Pursuant to the Companies Law, arrangements between the Company and its Office Holders must generally be approved by the Remuneration
Committee and the Board, and be consistent with the Compensation Policy. However, under certain circumstances, the Company may approve an
arrangement that is not consistent with the Compensation Policy, if such arrangement is approved by a majority of the Company’s shareholders, provided that
(i) such majority includes a majority of the votes cast by shareholders who are not controlling shareholders and who do not have a personal interest in the
matter, present and voting (abstentions are disregarded), or (ii) the votes cast by shareholders who are not controlling shareholders and who do not have a
personal interest in the matter who were present and voted against the arrangement constitute two percent or less of the voting power of the company, or the
Special Majority.
The Terms of Office and Employment of directors (including an officer who is a director but is not a controlling shareholder) further require the
approval of the shareholders by a simple majority in addition to the approval of the Compensation Committee and the Board, in that order; with respect to a
chief executive officer or an officer who is a controlling shareholder, the approval of the shareholders must be made by the Special Majority. In addition,
under certain circumstances, a company may be exempt from receiving the shareholders’ approval with respect to the Terms of Office and Employment of a
non-affiliated candidate for chief executive officer.
Under certain circumstances, if the terms of office and employment of Office Holders (who are not directors or controlling shareholders) are not
approved by the shareholders, where such approval is required, the Remuneration Committee and the Board may subsequently override the resolution of the
shareholders following a new discussion of the matter and for specified reasons. In addition, amendment of terms of office and employment of Office Holders
(who are not directors or controlling shareholders) requires the approval of the Remuneration Committee only, if the Remuneration Committee determines
that the amendment is not material.
Aggregate Executive Compensation
The aggregate compensation, including share-based compensation, paid by us to all of our Office Holders as a group, with respect to the year ended
December 31, 2016, was approximately $2.5 million. This amount includes approximately $133 thousand set aside or accrued to provide pension, severance,
retirement, vacation or similar benefits or expenses, but does not include business travel, relocation, professional and business association dues and expenses
reimbursed to Office Holders, and other benefits commonly reimbursed or paid by companies in our industry. In addition to the six members of the Board
(including the Company's President and Chief Executive Officer), the Company considers six other individuals, namely its Chief Medical Officer, its former
Chief Medical Officer, its Chief Scientist Officer, its former Chief Financial Officer, its VP, Clinical Operations, and its former VP Drug Development, to
have been Office Holders in 2016.
96
As of December 31, 2016, options to purchase 2,054,451 of our ordinary shares granted to our Office Holders as a group were outstanding, of which
options to purchase 902,014 of our ordinary shares were vested, with a weighted average exercise price of $1.84 per ordinary share of which 356,912 options
were exercised to 293,102 ordinary shares.
As of December 31, 2016, 58,750 restricted stock units (RSUs) granted to our Office Holders as a group were outstanding, of which none were
vested. For outstanding equity-based awards granted to our Office Holders, see below under “Item 6. Directors, Senior Management and Employees—E.
Share Ownership—Certain Information Concerning Equity Awards to Office Holders.”
Individual Compensation of Covered Executives
The following table sets forth the compensation granted to the five most highly compensated Office Holders during or with respect to the year ended
December 31, 2016. All amounts reported in the table reflect the cost to the Company, as recognized in its financial statements for the year ended December
31, 2016. The five individuals for whom disclosure is provided are referred to herein as “Covered Executives.”
Information Regarding the Covered
Executives
Name and Principal Position(1)
Allen Baharaff
(President and Chief Executive Officer and
Director)
Maya Halpern
(former Chief Medical Officer and Director)
Josh Blacher
(former Chief Financial Officer)
George Tonelli
(Vice President, Clinical Operations)
William Marth
(Director)
Base
Salary/consulting
fee($)
Benefits and
Perquisites
($)(2)
Compensation for Services(1)
Equity-
Based
Compensation
($)(4)
Cash
Bonus
($)(3)
Other
($)(5)
Total ($)
300,000
72,621
75,000
179,445
30,000
657,066
25,974
7,705
-
375,569
161,688
44,436
28,571
168,407
409,248
403,102
174,000
-
-
-
-
-
141,729
-
315,729
121,709
30,000
151,709
(1)
(2)
Mr. Baharaff is a full-time employee of the Company; Dr. Halpern was a part-time employee of the Company. Mr. The Company engages
Mr. Tonelli's services through a consulting agreement. Mr. Baharaff and Mr. Marth are and Dr. Halpern was also serving as members of our
Board. Cash compensation amounts denominated in currencies other than the Dollar were converted into Dollars at an exchange rate of NIS
3.85 = $1.00, which reflects the average conversion rate for fiscal year ended December 31, 2016.
Amounts reported in this column include benefits and perquisites, including those mandated by applicable law. Such benefits and
perquisites may include, to the extent applicable to the Covered Executives, payments, contributions and/or allocations for savings funds,
pension, severance, vacation, car allowance, medical insurances and benefits, risk insurance (e.g., life, disability, accident), telephone,
convalescence pay, relocation, payments for social security and other benefits and perquisites consistent with the Company’s policies.
97
(3)
(4)
(5)
Amounts reported in this column refer to the cash bonuses provided by the Company with respect to 2016, which have been provided for in
the Company’s financial statements for the year ended December 31, 2016 (including if such bonuses were paid in 2017). They exclude
bonuses paid in 2016 which were provided for in the Company’s financial statements for previous years. Cash bonuses are paid in
accordance with the Company’s 2016 Annual Cash Bonus Plan and are intended to promote the Company’s work plan and business strategy
by rewarding officers for achievement of the Company’s business and financial goals through team work and collaboration. Key
performance indicators which are factored into cash bonus determinations are individual specific and may include: (i) major progress in
research and development stages, (ii) the execution of in/out-license transactions, (iii) the execution of strategic collaboration agreements,
(iv) obtaining marketing approval of a new product, and (v) raising funds throughout public offering or a private placement.
Amounts reported in this column represent the expense recorded in the Company’s financial statements for the year ended December 31,
2016 with respect to equity-based compensation. Assumptions and key variables used in the calculation of such amounts are discussed in
Note 10 to the Financial Statements. For outstanding equity-based awards granted to Covered Executives see below under “Item 6.
Directors, Senior Management and Employees—E. Share Ownership—Certain Information Concerning Equity Awards to Office Holders.”
Amounts reported in this column include payments made with respect to the year 2016 and recorded in the financial statements for the year
ended December 31, 2016 relating to directors’ fees.
Compensation of Directors
As approved by our shareholders at our 2014 annual meeting of shareholders, in connection with their services as directors of the Company, each of
our directors from time to time, including external directors, is entitled to an annual payment of $30,000, plus value-added tax, or VAT, if applicable, payable
quarterly at the end of each quarter.
For the outstanding equity-based awards granted to our directors, see below under “Item 6. Directors, Senior Management and Employees—E. Share
Ownership—Certain Information Concerning Equity Awards to Office Holders.”
Compensation of External Directors
Each of our external directors is entitled to an annual amount of $30,000, plus VAT, if applicable, payable in quarterly installments at the end of each
quarter. The compensation of external directors is also subject to the provisions of the Israeli regulations promulgated pursuant to the Companies Law
governing the terms of compensation payable to external directors, or the Compensation Regulations, which provide that such compensation will not be less
than the Minimum Amount (as such term is defined in the Compensation Regulations). See also “Item 6. Directors, Senior Management and Employees—C.
Board Practices—External Directors & Financial Experts” below.
Employment Agreements and Arrangements with Directors and Related Parties
We entered into written employment agreements with each of our executive officers. These agreements provide for notice periods of varying
duration for termination of the agreement by us or by the relevant executive officer, during which time the executive officer will continue to receive base
salary and benefits. These agreements also contain customary provisions regarding non-competition, confidentiality of information and assignment of
inventions. However, the enforceability of the non-competition and assignment of inventions provisions may be limited under applicable law. See “Item 3.
Key Information—Risk Factors—Risks Related to Our Business, Industry and Regulatory Requirements.”
98
Employment Agreement with Our President and Chief Executive Officer
We entered into an employment agreement, dated December 23, 2013, with our President and Chief Executive Officer, Mr. Allen Baharaff, who is
also a controlling shareholder, which was approved and ratified by our shareholders on December 30, 2013. Under the terms of his employment agreement,
Mr. Baharaff is entitled to a gross monthly salary of $20,000. In addition, Mr. Baharaff will be eligible to receive (i) an annual bonus in an amount of two to
six times his monthly base salary, to be determined based on the achievement of certain milestones set by our Board; provided, however, that, at our
shareholders meeting held on May 25, 2016, our shareholders approved Mr. Baharaff’s eligibility to receive an annual bonus in an amount of up to 9 times his
base salary based on the achievement of certain milestones set by the Board; and (ii) upon the termination of his employment, special remuneration of nine
times his gross monthly salary as consideration for certain noncompetition provisions contained in his employment agreement. Mr. Baharaff will also receive
other benefits required under Israeli law or that are customary for senior executives in Israel such as reimbursement for cellular telephone expenses,
automobile maintenance expenses, and Company contributions equivalent to 6.5%, 5%, 8.33%, up to 2.5% and 7.5% of his gross monthly base salary towards
certain pension, or a manager’s insurance policy, severance, disability (in case of a manager's insurance plan) and tax-advantaged savings funds, or a study
fund, respectively. Mr. Baharaff will also contribute 6% and 2.5% of his gross monthly salary towards pension or the manager’s insurance policy and study
fund, respectively. Mr. Baharaff’s employment agreement is terminable by either party upon 90 days’ prior written notice, and contains customary provisions
regarding noncompetition, confidentiality of information and assignment of inventions. On May 25, 2016, our shareholders approved, following the approval
of our Board and Remuneration Committee, the following amendments to the employment terms of Mr. Baharaff: (i) increase of $10,000 in Mr. Baharaff’s
gross monthly salary (from $20,000 to $30,000), which would be made in two steps as follows: first increase in the amount of $5,000 would be effective
retroactively from January 1, 2016 and the second increase of $5,000 would be effective as of January 1, 2017; (ii) an increase of NIS 1,500 in Mr. Baharaff’s
car expenses reimbursement (from NIS 2,500 to NIS 4,000), which would be effective retroactively from January 1, 2016.
For cash bonuses granted to Mr. Baharaff see “Item 6. Directors, Senior Management and Employees— B. Compensation—Individual
Compensation of Covered Executives.” For outstanding equity-based awards granted to Mr. Baharaff see below under “Item 6. Directors, Senior Management
and Employees—E. Share Ownership—Certain Information Concerning Equity Awards to Office Holders.”
2013 Incentive Share Option Plan
We maintain one equity-based incentive plan, our 2013 Incentive Share Option Plan, or our 2013 Plan. As of March 16, 2017, the latest practicable
date for inclusion in this annual report, a total of 3,090,492 shares were reserved for issuance under our 2013 Plan, of which (1) options to purchase 2,540,890
ordinary shares and 67,656 restricted stock units, or RSUs, were issued and outstanding thereunder (i.e., were granted but not canceled, expired or exercised);
(2) options to purchase 356,912 ordinary shares and 781 restricted stock units, or RSUs were exercised and (3) 124,253 shares remain unallocated for future
equity awards pursuant to our 2013 Plan. Our 2013 Plan, which was adopted by our Board on September 2, 2013, and approved by our shareholders in
December 30, 2013 (as was amended by the Board and our shareholders on March 30, 2015 and May 11, 2015, respectively), provides for the grant of options
to purchase our ordinary shares and the issuance of RSUs to our and our affiliates’ respective directors, employees, Office Holders, service providers and
consultants. Our 2013 Plan provides for such equity-based compensation under various and different tax regimes, including those detailed below.
The 2013 Plan is administered by our Board, which, on its own or upon the recommendation of our Remuneration Committee or any other similar
committee of the Board, shall determine, subject to applicable law, the identity of grantees of awards and various terms of the grant. Consistent with our
Compensation Policy, the 2013 Plan provides for granting options to purchase our ordinary shares pursuant to Section 102 of the Israeli Income Tax
Ordinance, or the Ordinance, under the capital gains route, to directors, officers and employees who are Israeli residents holding (or have a right to hold or to
purchase) less than 10% of our total share capital and do not have a right to receive 10% or more of the Company’s profits.
99
Section 102 of the Ordinance allows Israeli employees, directors and officers, who are not controlling shareholders to receive favorable tax treatment
for compensation in the form of shares or options. However, under this route we are not allowed to deduct any expense with respect to the issuance of the
options or shares. Israeli non-employee service providers, consultants and shareholders who hold 10% or more of our total share capital or are otherwise
controlling shareholders, may be granted options pursuant to Section 3(i) of the Ordinance, which does not provide for similar tax benefits. In order to comply
with the terms of the capital gains route pursuant to Section 102 of the Ordinance, the granted options as well as the ordinary shares issued upon exercise of
these options and other shares received subsequently following any realization of rights with respect to such options (such as share dividends and share
splits), must be granted to a trustee for the benefit of the relevant grantee and should be held by the trustee for at least two years after the date of the grant. If
such options or shares are sold by the trustee or are transferred to the grantee before the end of the two year period, then the grantee would be taxed at top
marginal rates upon selling the shares.
For residents, or deemed residents, of the United States, the 2013 Plan provides grants, which are pursuant to Section 422 of the Internal Revenue
Code of 1986, as amended, or the Code, as incentive stock options, or ISOs, and any other participants which do not qualify for ISOs, as non-statutory stock
options, or NSOs, pursuant to the Code.
Section 422 of the Code allows employees, directors and officers, who are non-controlling shareholders (e.g., less than 10% shareholders) and are
considered residents of the United States or those who are deemed to be residents of the United States for purposes of the payment of tax, or are otherwise
subject to taxation in the United States with respect to the grant of awards, to receive favorable tax treatment for compensation in the form of shares or ISOs.
10% shareholders or persons which are not service providers will receive NSOs, which do not entitle them to receive similar tax benefits. Section 422(b) of
the Code provides for the ISO track such that the individual does not have to pay ordinary income tax (nor employment taxes) on the difference between the
exercise price and the fair market value of the shares issued (however, the holder may have to pay U.S. alternative minimum tax instead). However, if the
shares are held for one year from the date of exercise and two years from the date of grant, then the profit (if any) made on sale of the shares is taxed as long-
term capital gain. Section 422 of the Code requires that any grant of awards shall not be made at a price which is less than 100% of the fair market value of
such awards on the date of the grant, all pursuant to the terms of Section 409A of the Code. However, under this ISO track, we are not allowed to deduct any
expense with respect to the issuance of the options or shares. In order to comply with the terms of the ISO track, the option granted thereunder must meet the
requirements of Section 422 of the Code when granted and at all times until the exercise thereof.
Options and RSUs granted under the 2013 Plan will vest in accordance with the vesting dates as determined by the Board following the
recommendation of the Remuneration Committee or any other similar committee of the Board with respect to each grant. Generally, options and RSUs that
are not exercised within ten years from the grant date expire, unless otherwise determined by the Board and the Remuneration Committee, as applicable,
provided however, that, pursuant to our Compensation Policy, any equity-based awards to Office Holders must include both a minimum vesting period of not
less than one year from the date of grant, and an exercise period of no more than ten years from the date of grant.
Upon such date or dates designated in the applicable award agreement, unless earlier forfeited, subject to the receipt of any approvals required from
any relevant tax authority, we shall settle each RSU by delivering one Share.
In case of termination for reasons of disability or death, the grantee or his legal successor may exercise options that have vested prior to termination
within a period of twelve months from the date of disability or death. If we terminate a grantee’s employment or service for cause, all of the grantee’s vested
and unvested unexercised options will expire and terminate on the date of termination. If a grantee’s employment or service is terminated for any other
reason, the grantee may exercise his or her vested options within 90 days of the date of termination or within a longer period under specified circumstances.
Any expired or unvested options shall return to the option pool reserved under the 2013 Plan for reissuance.
In the event of grantee’s termination prior to a vesting date by reason of such grantee's death or disability, all of such grantee’s RSUs shall
immediately become vested as of the date of such termination. In the event of a grantee’s termination for cause prior to settlement, all of such grantee’s RSUs
shall immediately be forfeited for no consideration as of the date of such termination. If a grantee’s employment or service is terminated for any other reason,
(1) all vesting with respect to such grantee's RSUs shall cease, (2) all of such grantee’s unvested RSUs shall immediately be forfeited for no consideration as
of the date of such termination, and (3) to the extent not already settled, all of such grantee’s vested RSUs shall be settled in accordance with the settlement
schedule set forth in the applicable award agreement.
100
In the event of a merger or consolidation of our company subsequent to which we would no longer exist as a legal entity, or a sale of all, or
substantially all, of our ordinary shares or assets or other transaction having a similar effect on us, or a Transaction, any unexercised options then outstanding
will be cancelled. Notwithstanding the foregoing, the Board, or the relevant committee of the Board, may determine that the options will not be cancelled but
will be assumed or substituted for an appropriate number of the same type of shares or other securities of the successor company as were distributed to the
Company or the shareholders in connection with the Transaction. In addition, the Board, or the relevant committee of the Board, may determine to include in
certain option agreements either a clause that provides for acceleration of vesting of all or part of the unvested options in the event of a Transaction or the
occurrence of another event or a clause which provides that if the optionee’s employment with the successor company is terminated by the successor company
without cause within a certain period, not to exceed two years from the closing of such Transaction, all or part of the unvested options shall be accelerated.
C. Board Practices.
We are incorporated in Israel, and, therefore, we are subject to various corporate governance practices under Israeli law relating to such matters as
external directors, independent directors, audit committees, remuneration committees and internal auditors. These Israeli law requirements are in addition to
the requirements of the Nasdaq Listing Rules and other relevant provisions of U.S. securities laws. Under such Nasdaq Listing Rules, a foreign private issuer
may generally follow its home country practices for corporate governance in lieu of such comparable listing rules’ requirements, except for certain matters
such as composition and responsibilities of the audit committee and the SEC-mandated standards for the independence of its members. See below under “Item
16G. Corporate Governance” for further information.
Membership of the Board
Under our Articles, the Board consists of three classes of directors (not including the two external directors, each of whom are not part of any class)
which are appointed for fixed terms of office in accordance with the Companies Law and our Articles, with one class being elected each year for a term of
approximately three years by our shareholders at our annual general meeting.
Directors so elected cannot be removed from office by the shareholders until the expiration of their term of office. The directors do not receive any
benefits upon the expiration of their term of office.
The three classes of directors are Class I Directors, Class II Directors and Class III Directors. The term of the initial Class I Directors expired at the
annual general meeting of shareholders held in May 2015; the term of the initial Class II Directors expired at the annual general meeting of shareholders held
in May 2016; and the term of the initial Class III Directors will expire at the annual general meeting of shareholders to be held in 2017. Mr. Shmuel Nir serves
as our Class I Director; Mr. Allen Baharaff serve as our Class II Director; and Mr. William Marth and Mr. Chaim Hurvitz serve as our Class III Directors. In
accordance with the Articles, any vacancies on the Board of, including unfilled positions, may be filled by a vote of a majority of the directors then in office,
and each director chosen in this manner would hold office until the next annual general meeting of the Company (or until the earlier termination of his or her
appointment as provided for in the Companies Law or the Articles). In our shareholders meeting held on May 25, 2016, it was resolved to re-elect Mr. Shmuel
Nir as a Class I director to serve as a member of the Board until the close of the annual general meeting to be held in 2018 and when his successor has been
duly elected and to re-elect Mr. Allen Baharaff as a Class II director to serve as a member of the Board until the close of the annual general meeting to be held
in 2019 and when his successor has been duly elected. On March 15, 2017, the Board appointed Prof. Ran Oren, M.D. to serve as a member of the Board until
the close of the 2017 AGM. In addition, the Board has recommended that the shareholders elect, at the 2017 AGM, Prof. Oren as a class II director until the
close of the annual general meeting to be held in 2019.
101
The Articles provide that the minimum number of members of the Board is three and the maximum number is eleven. The Board is presently
comprised of seven members, two of whom are external directors. The minimum and maximum number of directors may be changed, at any time and from
time to time, by a majority vote of our directors then in office, provided that no decrease in the number of directors shall shorten the term of any incumbent
director.
Any amendment of our Articles regarding the election of directors, as described above, require the affirmative vote of at least 75% of the voting
rights in the Company. See “Item 6. Directors, Senior Management and Employees—C. Board Practices—External Directors” for a description of the
procedure for the election of external directors.
A nominee for service as a director in a public company may not be elected without submitting a declaration to the company, prior to election,
specifying that he or she has the requisite qualifications to serve as a director, independent director or external director, as applicable, and the ability to devote
the appropriate time to performing his or her duties as such.
A director, including an external director or an independent director, who ceases to meet the statutory requirements to serve as a director, external
director or independent director, as applicable, must notify the company to that effect immediately and his or her service as a director will expire upon
submission of such notice.
Alternate Directors
Our Articles provide, as allowed by the Companies Law, that any director may, subject to the conditions set thereto, appoint a person as an alternate
to act in his place, to remove the alternate and appoint another in his place and to appoint an alternate in place of an alternate whose office is vacated for any
reason whatsoever. Under the Companies Law, a person who is not qualified to be appointed as a director, a person who is already serving as a director or a
person who is already serving as an alternate director for another director, may not be appointed as an alternate director. Nevertheless, a director who is
already serving as a director may be appointed as an alternate director for a member of a committee of the board of directors so long as he or she is not
already serving as a member of such committee, and if the alternate director is to replace an external director, he or she is required to be an external director
and to have either “financial and accounting expertise” or “professional expertise,” depending on the qualifications of the external director he or she is
replacing. A person who does not have the requisite “financial and accounting experience” or the “professional expertise,” depending on the qualifications of
the external director he or she is replacing, may not be appointed as an alternate director for an external director. A person who is not qualified to be
appointed as an independent director, pursuant to the Companies Law, may not be appointed as an alternate director of an independent director qualified as
such under the Companies Law. Unless the appointing director limits the time or scope of the appointment, the appointment is effective for all purposes until
the appointing director ceases to be a director or terminates the appointment.
External Directors
Under the Companies Law and the regulations promulgated pursuant thereto, Israeli companies whose shares have been offered to the public, or that
are publicly traded outside of Israel, which we refer to as a public company, are required to appoint at least two natural persons as “external directors.”
No person may be appointed as an external director if such person is a relative of a controlling shareholder or if such person, a relative, partner or
employer of such person, or anyone to whom such person is directly or indirectly subordinate, or any entity under such person’s control, has or had, on or
within the two years preceding the date of such person’s appointment to serve as an external director, any affiliation with the company to whose board of
directors the external director is proposed to be appointed, with any controlling shareholder of the company, with a relative of such controlling shareholder, or
with any entity controlled, on the date of such appointment or within the preceding two years, by the company or by a controlling shareholder of the company.
If the company has no controlling shareholder or a shareholder holding 25% or more of the company’s voting rights, a person may not serve as an external
director if the person has any affiliation, at the time of the appointment, to the chairman of the board of directors, the chief executive officer or the most senior
financial officer of the company, or to a shareholder holding 5% or more of the outstanding shares or voting rights of the company.
102
The term “controlling shareholder” means a shareholder with the ability to direct the activities of the company, other than by virtue of being an office
holder. A shareholder is presumed to have “control” of the company and thus to be a controlling shareholder of the company if the shareholder holds 50% or
more of the “means of control” of the company. “Means of control” is defined as (1) the right to vote at a general meeting of a company or a corresponding
body of another corporation; or (2) the right to appoint directors of the corporation or its general manager.
The term “affiliation” includes:
·
·
·
·
an employment relationship;
a business or professional relationship maintained on a regular basis;
or control; and
service as an office holder, excluding service as a director in a private company prior to the first offering of its shares to the public if such
director was appointed as a director of the private company in order to serve as an external director following the initial public offering.
The term “relative” is defined as a spouse, sibling, parent, grandparent, descendant, spouse’s descendant, sibling and parent and the spouse of each of
the foregoing.
In addition, no person may serve as an external director if: (i) the person’s other positions or other business activities create, or may create, a conflict
of interest with the person’s service as an external director or interfere with the person’s ability to serve as an external director; (ii) at the time such person
serves as a non-external director of another company on whose board of directors a director of the reciprocal company serves as an external director; (iii) the
person is an employee of the Israel Securities Authority or of an Israeli stock exchange; (iv) such person or such person’s relative, partner, employer or
anyone to whom such person is directly or indirectly subordinate, or any entity under such person’s control, has business or professional relations with any
person or entity he or she should not be affiliated with, as described in the previous paragraph, unless such relations are negligible; or (v) such person
received compensation, directly or indirectly, in connection with such person’s services as an external director, other than as permitted under the Companies
Law and the regulations promulgated thereunder. If, at the time of election of an external director, all other directors who are not controlling shareholders of
such company or their relatives, are of the same gender, then the designated external director must be of the other gender.
Pursuant to the Companies Law, an external director is required to have either financial and accounting expertise or professional qualifications
according to criteria set forth in regulations promulgated under the Companies Law, provided that at least one of the external directors has financial and
accounting expertise. However, if at least one of our other directors (1) meets the independence requirements of the Exchange Act, (2) meets the Nasdaq
requirements for membership on the audit committee and (3) has financial and accounting expertise as defined in the Companies Law and applicable
regulations, then neither of our external directors is required to possess financial and accounting expertise as long as both possess other requisite professional
qualifications as required under the Companies Law and regulations promulgated thereunder.
The regulations promulgated under the Companies Law define an external director with requisite professional qualifications as a director who
satisfies one of the following requirements: (1) the director holds an academic degree in either economics, business administration, accounting, law or public
administration, (2) the director either holds an academic degree in any other field or has completed another form of higher education in the company’s
primary field of business or in an area which is relevant to his or her office as an external director in the company, or (3) the director has at least five years of
experience serving in any one of the following capacities, or at least five years of cumulative experience serving in two or more of the following capacities:
(a) a senior business management position in a company with a substantial scope of business, (b) a senior position in the company’s primary field of business
or (c) a senior position in public administration.
103
The board of directors must make the determination as to the financial and accounting expertise, and as to the professional qualifications, of a
director taking into consideration those criteria and matters set forth in the regulations. A director with financial and accounting expertise is a director who by
virtue of his or her education, professional experience and skill, has a high level of proficiency in and understanding of business accounting matters and
financial statements so that he or she is able to fully understand our financial statements and initiate debate regarding the manner in which the financial
information is presented. In addition, the boards of directors of public companies are required to make a determination as to the minimum number of directors
who must have such financial and accounting expertise based on, among other things, the type of company, its size, the volume and complexity of the
company’s activities and the number of directors. Our Board has determined that the minimum number of directors with financial and accounting expertise, in
addition to the external director or directors who have such expertise, will be one, and that Mr. Marth qualifies as such. The external director who qualifies to
have such expertise is Ms. Yaron-Eldar. In addition, our Board has determined that each of Ms. Yaron-Eldar and Mr. Marth qualifies as an audit committee
financial expert pursuant to the applicable SEC rules, and accordingly as having the necessary financial sophistication as required by the Nasdaq Capital
Market rules.
Election and Dismissal of External Directors
External directors are elected for a term of three years at the general meeting of shareholders by a simple majority, provided that the majority
includes either:
·
·
a majority of the shares that are voted at the meeting in favor of the election of the external director, excluding abstentions, include at least a majority
of the votes of shareholders who are not controlling shareholders and who do not have a personal interest in the appointment (excluding a personal
interest that did not result from the shareholder’s relationship with the controlling shareholder), or
the total number of shares held by the shareholders mentioned in the paragraph above that are voted against the election of the external director does
not exceed two percent of the aggregate voting rights in the company.
External directors may be re-elected for two additional terms of three years each, provided that with respect to the appointment for each such
additional three year term, one of the following has occurred:
·
·
·
his/her service for each such additional term is recommended by one or more shareholders holding at least 1% of the company’s voting rights and is
approved at a shareholders’ meeting by a disinterested majority, where the total number of shares held by non-controlling, disinterested shareholders
voting for such reelection exceeds 2% of the aggregate voting rights in the company, subject to additional restrictions set forth in the Companies Law
with respect to the affiliation of the external director nominee;
the external director proposed his or her own nomination, and such nomination was approved in accordance with the requirements described in the
paragraph above; or
the reappointment of the external director has been proposed by the board of directors and the appointment was approved by the majority of
shareholders required for the initial appointment of an external director.
However, under regulations promulgated pursuant to the Companies Law, companies whose shares are listed for trading on specified exchanges
outside of Israel, including the Nasdaq Capital Market, may elect external directors for additional terms that do not exceed three years each, beyond the three
year terms generally applicable, provided that, if an external director is being re-elected for an additional term or terms beyond three year terms: (i) the audit
committee and board of directors, in that order, must determine that, in light of the external director’s expertise and special contribution to the board of
directors and its committees, the re-election for an additional term is to the company’s best interest; (ii) the external director must be re-elected by the
required majority of shareholders as described above; and (iii) the term during which the nominee has served as an external director and the reasons given by
the audit committee and board of directors for extending his or her term of office must be presented to the shareholders prior to their approval.
Following termination of service as an external director, a public company, a controlling shareholder thereof and any entity controlled by a
controlling shareholder, may not grant any benefit, directly or indirectly, to any person who served as an external director of such public company, or to his or
her spouse or child, including, not appointing such person, or his or her spouse or child, as an Office Holder of such public company or of any entity
controlled by a controlling shareholder of such public company, not employing such person or his or her spouse or child and not receiving professional
services for pay from such person, either directly or indirectly, including through a corporation controlled by such person, all until the lapse of two years from
termination of office with respect to the external director, his or her spouse or child; and until the lapse of one year from termination of office with respect to
other relatives of the former external director.
104
Each committee of the Board that is authorized to exercise powers of a company’s board of directors must include at least one external director. The
audit and remuneration committees of a company’s board of directors must include all of such company’s external directors.
Under the Companies Law, an external director cannot be dismissed from office unless the board of directors has learned there is a concern that: the
external director no longer meets the statutory requirements for his appointment as an external director; or the external director is in breach of his or her duty
of loyalty to the company. The board of directors shall discuss the matter no later than in the first board of directors meeting convened after the board had
become aware of such circumstances. In the event the board of directors has determined that an external director had ceased to comply with the requirements
set forth under the Companies Law or that he or she breached his or her duty of loyalty to the company, than the board of directors shall convene a general
meeting of the shareholders and will include on the agenda a resolution for the removal from office of such external director. The shareholders vote required
to removal of an external director from office is the same majority required for the appointment; provided, however, that the external director has been given
the opportunity to present his or her position. In addition, a court of law may determine, upon a request of a director or a shareholder, to dismiss the external
director after finding that such external director no longer meets the statutory requirements of an external director set under the Companies Law or that the
external director is in breach of his or her duty of loyalty to the company.
In addition, under regulations promulgated pursuant to the Companies Law, companies with no controlling shareholder whose shares are listed for
trading on specified exchanges outside of Israel, including the Nasdaq Capital Market, may adopt exemptions from various corporate governance
requirements of the Companies Law so long as the company satisfies the applicable foreign country laws and regulations, including applicable stock
exchange rules, that apply to companies organized in that country relating to the appointment of independent directors and the composition of audit and
compensation committees. Such exemptions include an exemption from the requirement to appoint external directors and the requirement that an external
director be a member of certain committees. We may use these exemptions in the future if we do not have a controlling shareholder.
Ms. Yaron-Eldar and Dr. Sidransky are the current external directors, appointed by our Board and approved by our shareholders to serve as such.
Their initial term of office of three years expires in June 2017.
Independent Directors Under the Companies Law
Under the Companies Law an “independent director” is either an external director or a director appointed or classified as such who meets the same
non-affiliation criteria as an external director, as determined by the audit committee, and who has not served as a director of the company for more than nine
consecutive years. For these purposes, ceasing to serve as a director for a period of two years or less would not be deemed to sever the consecutive nature of
such director’s service. An independent director may be removed from office in the same manner that an external director may be removed and, upon
termination of service as an independent director, is subject to the same restrictions with respect to receipt of benefits, service as an Office Holder,
employment and provision of professional services as are applicable to external directors.
Regulations promulgated pursuant to the Companies Law provide that a director in a public company whose shares are listed for trading on specified
exchanges outside of Israel, including the Nasdaq Capital Market, such as the Company, who qualifies as an independent director under the relevant non-
Israeli rules relating to independence standards for audit committee membership and who meets certain non-affiliation criteria, which are less stringent than
those applicable to external directors, would be deemed an “independent” director pursuant to the Companies Law provided: (i) he or she has not served as a
director for more than nine consecutive years; (ii) he or she has been approved as such by the audit committee; and (iii) his or her remuneration shall be in
accordance with the Compensation Regulations. For these purposes, ceasing to serve as a director for a period of two years or less would not be deemed to
sever the consecutive nature of such director’s service.
105
Furthermore, pursuant to these regulations, such company may reappoint a person as an independent director for additional terms, beyond nine years,
which do not exceed three years each, if each of the audit committee and the board of directors determine, in that order, that in light of the independent
director’s expertise and special contribution to the board of directors and its committees, the reappointment for an additional term is in the company’s best
interest.
Committees of the Board
Our Articles also provide that the Board may delegate any, or all, of its powers to one or more committees of the Board, and may entrust to and
confer upon a “managing director” such of its powers as it deems appropriate. However, the Companies Law provides that certain powers and authorities (for
example, the power to approve the financial statements) may not be delegated and may be exercised only by the Board. Notwithstanding the foregoing, we
currently do, and intend to continue to, comply with the corporate governance requirements of the Nasdaq Capital Market, except to the extent indicated
elsewhere in this annual report, including as set forth under “Item 16G. Corporate Governance” below. The Companies Law requires public companies such
as the Company to appoint an audit committee and a remuneration committee.
Audit Committee
The Companies Law requires public companies to appoint an audit committee comprised of at least three directors, including all of the external
directors, the majority of whom must be independent directors under the Companies Law. The Companies Law further stipulates that the following may not
be members of the audit committee: (i) the chairman of the board of directors; (ii) any director employed by or providing services on an ongoing basis to the
company, to a controlling shareholder of the company or an entity controlled by a controlling shareholder of the company; (iii) a director whose livelihood
mainly depends on a controlling shareholder; and (iv) a controlling shareholder or any relative of a controlling shareholder.
The Companies Law further requires that: (i) the chairperson of the audit committee must be an external director; (ii) generally, any person who is
not entitled to be a member of the audit committee may not attend the audit committee’s meetings and voting sessions, unless such person was invited by the
chairperson of the committee for the purpose of presenting a specific subject matter thereof; and (iii) the quorum required for the convening of meetings of
the audit committee and for adopting resolutions by the audit committee is a majority of the members of the audit committee, provided that the majority of the
members present are independent directors and at least one of them is an external director.
The responsibilities of the audit committee under the Companies Law include: (i) identifying flaws in the management of a company’s business and
making recommendations to the board of directors as to how to correct them; (ii) with respect to certain actions involving conflicts of interest and with respect
to certain related party transactions, deciding whether such actions are material actions and whether such transactions are extraordinary transactions,
respectively, all for the purpose of approving such actions or transactions; (iii) reviewing and deciding whether to approve certain related party transactions
and certain actions involving conflicts of interest; (iv) reviewing the internal auditor’s work program; (v) examining the company’s internal control structure
and processes, the performance of the internal auditor and whether the internal auditor has at his or her disposal the tools and resources required to perform
his or her duties, considering, inter alia, the special needs of the company and its size; (vi) examining the external auditor’s scope of work as well as the
external auditor’s fees and providing its recommendations to the appropriate corporate organ; (vii) providing for arrangements as to the manner in which the
company will deal with employee complaints with respect to deficiencies in the management of the company’s business and the protection to be provided to
such employees; and (viii) with respect to related party transactions with a controlling shareholder, regardless of whether such transactions are extraordinary
transactions, that prior to entering into such transaction, to establish the requirement of having a competitive process under the supervision of the audit
committee or any individual, committee or body on its behalf and according to criteria established by the audit committee and to determine procedures for
approving certain related party transactions with a controlling shareholder, which were determined by the audit committee to be non-extraordinary
transactions, but which are not negligible transactions.
106
Our Board has adopted an audit committee charter setting forth the responsibilities of the Audit Committee consistent with the rules of the SEC and
the Nasdaq Listing Rules, as well as the requirements for such committee under the Companies Law, as described below.
Our Audit Committee oversees the accounting and financial reporting processes of the Company. It also provides assistance to the Board in fulfilling
its legal and fiduciary obligations with respect to matters involving the accounting, auditing, financial reporting and internal control functions of the
Company. In carrying out its duties, our Audit Committee meets with management at least once a quarter, at which time, among other things, it reviews, and
either approves or disapproves, the financial results of the Company for the immediately preceding calendar quarter and conveys its conclusions in this regard
to the Board. Our Audit Committee also monitors generally the services provided by the Company’s external auditors to ensure their independence, and
reviews all audit and non-audit services provided by them.
On March 15, 2016, our Board approved the adoption of a preapproval policy, such that the Chairman of the Audit Committee is authorized to pre-
approve any engagement of our external auditors during a period of twelve months from the date of such approval, for the provision of non-auditing services,
for fees not to exceed $20,000, and any such engagement which exceeds $20,000 shall require a pre-approval by the entire Audit Committee. Once services
have been pre-approved, our management must then report to the Audit Committee on a periodic basis regarding the extent of services actually provided in
accordance with the pre-approval policy, and regarding the fees for the services performed. Such fees for 2016 were pre-approved by the Audit Committee in
accordance with the pre-approval policy.
The Company’s external and internal auditors also report regularly to our Audit Committee, and our Audit Committee discusses with the Company’s
external auditors the quality, not just the acceptability, of the accounting principles, the reasonableness of significant judgments and the clarity of disclosures
in the Company’s financial statements, as and when it deems it appropriate to do so.
Under the provisions of the Sarbanes-Oxley Act, the audit committee is directly responsible for the appointment, compensation and oversight of the
work of the company’s external auditors. However, under Israeli law, the appointment of external auditors and their compensation require the approval of the
shareholders of a public company. Pursuant to Israeli law, the shareholders may delegate the authority to determine the compensation of the external auditors
to the board of directors. In addition, pursuant to the Companies Law, the audit committee is required to examine the external auditors’ fees and to provide its
recommendations with respect thereto to the appropriate corporate body. Accordingly, the appointment of the external auditors is required to be approved and
recommended to the shareholders by our Audit Committee and approved by the shareholders. The compensation of the external auditors for audit services is
required to be approved and recommended to the Board by our Audit Committee and approved by the Board. The Board has delegated its authority to
approve the compensation of external auditors for non-auditing services to the Audit Committee.
Mr. Nir, Ms. Yaron-Eldar and Dr. Sidransky are the current members of our Audit Committee, with Ms. Yaron-Eldar serving as chairperson. Each of
our Audit Committee members are “independent directors” in accordance with the Nasdaq Capital Market corporate governance requirements, as
affirmatively determined by our Board, and Ms. Yaron-Eldar and Dr. Sidransky also meet the qualifications for service as “external directors” under the
Companies Law and the regulations promulgated thereunder, also as affirmatively determined by our Board and our shareholders. In addition, our Board has
affirmatively determined that Ms. Yaron-Eldar also qualifies as an audit committee financial expert pursuant to the applicable SEC rules, and accordingly has
the necessary financial sophistication as required by the Nasdaq Capital Market rules, and as a financial and accounting expert under the Companies Law.
Remuneration Committee
The Companies Law requires public companies to appoint a remuneration committee comprised of at least three directors, including all of the
external directors, who must generally also constitute a majority of the members. All other members of the committee, who are not external directors, must be
directors who receive compensation consistent with that of external directors and that is in compliance with the Compensation Regulations. In addition, the
chairperson of the remuneration committee must be an external director.
107
The Companies Law further stipulates that directors who are not qualified to serve on the audit committee, as described above, may not serve on the
remuneration committee either and that similar to the audit committee, generally, any person who is not entitled to be a member of the remuneration
committee may not attend the remuneration committee’s meetings. Our Board has adopted a remuneration committee charter setting forth the responsibilities
of our Remuneration Committee, as described below.
The responsibilities of the remuneration committee under the Companies Law include: (i) making recommendations to the board of directors with
respect to the approval of the compensation policy and any extensions thereto; (ii) periodically reviewing the implementation of the compensation policy and
providing the board of directors with recommendations with respect to any amendments or updates thereto; (iii) reviewing and resolving whether or not to
approve transactions with respect to the terms of office and employment of Office Holders; and (iv) resolving, under certain circumstances prescribed under
the Companies Law, whether or not to exempt a transaction with a candidate for chief executive officer who meets non-affiliation criteria from shareholder
approval.
Our Remuneration Committee also oversees the administration of the Company’s various compensation plans and arrangements, in particular, the
incentive compensation, deferred compensation and equity based plans of the Company (and to the extent appropriate, of the subsidiaries of the Company)
and assists the Board in fulfilling its responsibilities relating to the compensation of directors, the Chief Executive Officer and other Office Holders of the
Company. In carrying out these duties, our Remuneration Committee meets on an ad hoc basis. Under the Companies Law, our Remuneration Committee
may need to seek the approval of the Board and the shareholders for certain compensation decisions as described above. Each member of our Remuneration
Committee is an “independent director” in accordance with the Nasdaq Capital Market corporate governance requirements, as affirmatively determined by
our Board. Mr. Nir, Ms. Yaron-Eldar and Dr. Sidransky are the current members of our Remuneration Committee, with Ms. Yaron-Eldar serving as
chairperson.
Nominating Committee
The Nasdaq Capital Market corporate governance requires each company adopting a nominating committee to certify that it has adopted a formal
written charter or board resolution, as applicable, addressing the nominations process and such related matters as may be required under U.S. federal
securities laws. Although not required as a foreign private issuer to adopt a nominating committee, we have decided to follow such requirement.
Our Board has adopted a nominating committee charter setting forth the responsibilities of the Nominating Committee consistent with the Nasdaq
Listing Rules.
The Nominating Committee is responsible for identifying individuals qualified to be appointed as board members, and recommending to the Board of
appropriate director nominees for election at the general meeting of shareholders.
Independent director oversight of nominations enhances investor confidence in the selection of well-qualified director nominees, as well as
independent nominees as required by the rules. The Nasdaq Capital Market listing rule is also intended to provide flexibility for a company to choose an
appropriate board structure and reduce resource burdens, while ensuring that independent directors approve all nominations.
Mr. Hurvitz, Ms. Yaron-Eldar, Mr. Marth and Dr. Sidransky are the current members of our Nominating Committee, with Dr. Sidransky serving as
chairperson. Nasdaq Capital Market Listing Rule 5605(e) requires that our Nominating Committee be comprised solely of independent directors unless the
Nominating Committee is comprised of at least three members and the Board determines that such non-independent director’s membership, which shall not
be longer than two years, is required by the best interests of the Company and our shareholders.
R&D Committee
Our R&D Committee, which was established by the Board on May 2014, advises and assists the Board in its oversight of our research and
development programs, including the rationale and timeline of clinical trials and other studies, as well as market surveys in connection therewith. The R&D
Committee operates in accordance with the purposes and objectives determined by the Board from time to time. Mr. Hurvitz, Dr. Sidransky and Mr. Marth are
the current members of our R&D Committee, with Mr. Hurvitz serving as chairperson.
108
Internal Auditor
Under the Companies Law, the board of directors of an Israeli public company must appoint an internal auditor recommended by the audit
committee and nominated by the board of directors. The role of the internal auditor is to examine, among other things, our compliance with applicable law
and orderly business procedures. An internal auditor should comply with the requirements of the Companies Law and the Internal Audit Law, 5752-1992, and
may not be:
(a) a person (or a relative of a person) who holds more than 5% of the Company’s outstanding shares or voting rights;
(b) a person (or a relative of a person) who has the power to appoint a director or the general manager of the Company;
(c) an Office Holder, including a director, of the Company (or a relative thereof); or
(d) a member of the Company’s independent accounting firm, or anyone on his or her behalf.
Pursuant to Israeli law, an internal auditor’s tenure cannot be terminated without his or her consent, nor can he or she be suspended from such
position unless the board of directors of the company has so resolved following the recommendations of the company’s audit committee and, after providing
the internal auditor with the opportunity to present his or her position to the board of directors of the company and to the audit committee.
On January 31, 2017, our Board reappointed Mr. Alon Amit, CPA, from Raveh Ravid & Co. CPA, Tel Aviv, Israel, as the Company’s internal
auditor, effective as of January 1, 2017, for a period of two years.
Exculpation and Indemnification of Directors and Officers
Under the Companies Law, a company may not exculpate an Office Holder from liability for a breach of the duty of loyalty. An Israeli company may
exculpate an Office Holder in advance from liability to the company, in whole or in part, for damages caused to the company as a result of a breach of the
duty of care but only if a provision authorizing such exculpation is included in its articles of association. Our Articles include such a provision. The Company
may not exculpate in advance a director from liability arising out of a prohibited dividend or distribution to shareholders.
Under the Companies Law, a company may indemnify, or undertake in advance to indemnify, an Office Holder for the following liabilities and
expenses, imposed on Office Holder or incurred by Office Holder due to acts performed by him or her as an Office Holder, provided its articles of association
include a provision authorizing such indemnification:
·
·
a monetary liability incurred by or imposed on him or her in favor of another person pursuant to a judgment, including a settlement or
arbitrator’s award approved by a court. However, if an undertaking to indemnify an Office Holder with respect to such liability is provided in
advance, then such an undertaking must be limited to events which, in the opinion of the board of directors, can be foreseen based on the
company’s activities when the undertaking to indemnify is given, and to an amount or according to criteria determined by the board of directors
as reasonable under the circumstances, and such undertaking shall detail the abovementioned foreseen events and amount or criteria;
reasonable litigation expenses, including attorneys’ fees, incurred by the Office Holder as a result of an investigation or proceeding instituted
against him or her by an authority authorized to conduct such investigation or proceeding, provided that (i) no indictment was filed against such
Office Holder as a result of such investigation or proceeding; and (ii) no financial liability was imposed upon him or her as a substitute for the
criminal proceeding as a result of such investigation or proceeding or, if such financial liability was imposed, it was imposed with respect to an
offense that does not require proof of criminal intent or as a monetary sanction;
109
·
·
·
·
a monetary liability imposed on him or her in favor of an injured party at an Administrative Procedure (as defined below) pursuant to Section
52(54)(a)(1)(a) of the Securities Law;
expenses incurred by an office holder in connection with an Administrative Procedure under the Securities Law, including reasonable litigation
expenses and reasonable attorneys’ fees; and
reasonable litigation expenses, including attorneys’ fees, incurred by the Office Holder or imposed by a court in proceedings instituted against
him or her by the company, on its behalf, or by a third-party, or in connection with criminal proceedings in which the Office Holder was
acquitted, or as a result of a conviction for an offense that does not require proof of criminal intent.
An “Administrative Procedure” is defined as a procedure pursuant to chapters H3 (Monetary Sanction by the Israeli Securities Authority), H4
(Administrative Enforcement Procedures of the Administrative Enforcement Committee) or I1 (Arrangement to prevent Procedures or
Interruption of procedures subject to conditions) to the Securities Law.
Under the Companies Law, a company may insure an Office Holder against the following liabilities incurred for acts performed by him or her as an
Office Holder if and to the extent provided in the company’s articles of association:
·
·
·
·
·
a breach of the duty of loyalty to the company, provided that the Office Holder acted in good faith and had a reasonable basis to believe that
such act would not prejudice the company;
a breach of the duty of care to the company or to a third-party;
a monetary liability imposed on the Office Holder in favor of a third-party;
a monetary liability imposed on the office holder in favor of an injured party at an Administrative Procedure pursuant to Section 52(54)(a)(1)(a)
of the Securities Law; and
expenses incurred by an office holder in connection with an Administrative Procedure, including reasonable litigation expenses and reasonable
attorneys’ fees.
Nevertheless, under the Companies Law, a company may not indemnify, exculpate or insure an Office Holder against any of the following:
·
·
·
·
a breach of the duty of loyalty, except for indemnification and insurance for a breach of the duty of loyalty to the company in the event Office
Holder acted in good faith and had a reasonable basis to believe that the act would not prejudice the company;
a breach of the duty of care committed intentionally or recklessly, excluding a breach arising out of the negligent conduct of the Office Holder;
an act or omission committed with intent to derive unlawful personal benefit; or
a fine, monetary sanction, penalty or forfeit levied against the Office Holder.
Under the Companies Law, exculpation, indemnification and insurance of Office Holders require the approval of the remuneration committee, board
of directors and, in certain circumstances, the shareholders, as described above under “Item 6—Directors, Senior Management and Employees—B.
Compensation.”
Our Articles permit us to exculpate, indemnify and insure our Office Holders to the fullest extent permitted by the Companies Law. Each of our
Office Holders have entered into an indemnification agreement with us, exculpating them, to the fullest extent permitted by Israeli law, from liability to us for
damages caused to us as a result of a breach of the duty of care and undertaking to indemnify them to the fullest extent permitted by Israeli law, including
with respect to liabilities resulting from certain acts performed by such Office Holders in their capacity as an Office Holder of the Company, our subsidiaries
or our affiliates.
110
In the opinion of the SEC, indemnification of directors and Office Holders for liabilities arising under the Securities Act, however, is against public
policy and therefore unenforceable.
Agreements with Directors
Other than a written agreement with our President and Chief Executive Officer, as detailed in “Item 7. Major Shareholder and Related Party
Transactions—Related Party Transactions—Employment Agreements and Arrangements with Directors and Related Parties—Employment Agreement with
Our President and Chief Executive Officer,” we do not have written agreements with any director providing for benefits upon the termination of his or her
services with our Company.
D. Employees.
As of December 31, 2016, we had 16 employees, of which 14 were full-time employees and two were part-time employees. Nine of the Company’s
employees were involved in our clinical and product development operations and seven served in general and administrative capacities. 15 of our employees
are located in Israel and one employee is located in the United Kingdom.
While none of our employees are party to any collective bargaining agreements or represented by any labor unions, certain provisions of the Israeli
labor laws and certain collective bargaining agreements between the Histadrut (General Federation of Labor in Israel) and the Coordination Bureau of
Economic Organizations (including the Industrialists’ Associations) are applicable to our employees by order of the Israel Ministry of Economics. These
provisions primarily concern the length of the workday, minimum daily wages for professional workers, pension fund benefits for all employees, insurance
for work-related accidents, procedures for dismissing employees, determination of severance pay and other conditions of employment. We generally provide
our employees with benefits and working conditions beyond the required minimums. We have never experienced any employment-related work stoppages
and believe our relationship with our employees is favorable.
E. Share Ownership.
As of March 16, 2017, the latest practicable date for inclusion in this annual report, there were 20 record holders of our ordinary shares holding an
aggregate of 33.8% of our ordinary shares on a fully diluted basis.
Certain Information Concerning Ordinary Shares Owned by Office Holders
The following table sets forth information regarding beneficial ownership of our ordinary shares as of March 16, 2017, the latest practicable date for
inclusion in this annual report, held by our directors and executive officers, individually and as a group.
Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to ordinary shares.
Ordinary shares issuable under share options, warrants or other conversion rights currently exercisable or that are exercisable within 60 days after March 16,
2017 are deemed outstanding for the purpose of computing the percentage ownership of the person holding the options, warrants or other conversion rights,
but are not deemed outstanding for the purpose of computing the percentage ownership of any other person. Percentage of shares beneficially owned is based
on 12,149,226 ordinary shares outstanding on March 16, 2017, which does not include an aggregate of 3,090,492 ordinary shares that were either subject to
outstanding equity awards granted or available for grant, of which: (i) 2,608,546 were subject to outstanding options and RSUs of which: 1,655,784 were
vested or will be vested within 60 days as of the date hereof; (ii) 357,693 were exercised into 293,102 ordinary shares and (iii) 124,253 remained available for
future equity awards pursuant to our 2013 Plan.
111
Chaim Hurvitz(2)
Allen Baharaff(3)
Shmuel Nir(4)
William Marth
Tali Yaron-Eldar
Dr. David Sidransky
Prof. Ran Oren
Dr. Tali Gorfine
Dr. Liat Hayardeny
Yohai Stenzler
Yael Hollander
Guy Nehemya
George Tonelli
As of March 16, 2017
Number of ordinary
shares beneficially
owned(1)
Percentage of ordinary
shares beneficially
owned
1,018,718
4,208,358
8.4%
32.5%
64,240
31,385
14,219
14,219
64,152
-
-
20,039
31,289
31,289
37,031
*
*
*
*
*
*
*
*
*
*
*
All directors and executive officers as a group (10 persons)
5,552,384
43.6%
*
Less than 1%.
(1) All options included are either currently exercisable or will be exercisable within 60 days of March 16, 2017.
(2) Ordinary shares beneficially owned consist of (i) 1,018,718 ordinary shares, of which 776,385 ordinary shares are held through Shirat HaChaim Ltd., a
company incorporated under the laws of the State of Israel, of which Mr. Hurvitz is the controlling shareholder, president, chief executive officer and the
chairman of its board of directors; (ii) 227,489 ordinary shares held by Mr. Chaim Hurwitz; (iii) 12,500 ordinary shares issuable upon the exercise of
options that are currently exercisable or will be exercisable within 60 days off March 16,2017; and (iv) and 2,343 ordinary shares issuable upon the
vesting of restricted stock units that are currently vested or will vest within 60 off March 16, 2017.
(3) Ordinary shares beneficially owned consist of (i) 3,420,822 ordinary shares, of which 3,416,822 are held through G. Yarom Medical Research Ltd., a
company incorporated under the laws of the State of Israel, of which Mr. Baharaff is the controlling shareholder and the chairman of its board of directors
and 4,000 ordinary shares held by Mr. Baharaff, which were purchased in the open market; and (ii) options to purchase 787,536 ordinary shares that are
currently exercisable within 60 days off March 16, 2017. In September 2016, Mr. Baharaff sold an aggregate of 51,461 ordinary shares of the Issuer
underlying exercised stock options pursuant to a Rule 10b5-1 trading plan. Of the 4,188,984 ordinary shares, Mr. Baharaff exercises sole voting and
dispositive power over 772,161 shares beneficially owned and shared voting and dispositive power with G. Yaron Medical Research Ltd. over 3,416,822
shares.
112
(4) Ordinary shares beneficially owned consist of (i) options to purchase 22,802 shares that are currently exercisable or will be exercisable within 60 days
from March 16, 2017, and (ii) 41,438 ordinary shares held through Tushia Consulting Engineers Ltd., of which Shmuel Nir is its controlling shareholder.
This table is based upon information supplied by officers and directors and is believed to be accurate. Except as indicated in footnotes to this table, we
believe that the shareholders named in this table have sole voting and investment power with respect to all shares shown to be beneficially owned by
them, based on information provided to us by such shareholders. Unless otherwise noted below, each shareholder’s address is: c/o Galmed
Pharmaceuticals Ltd., 16 Tiomkin St., Tel Aviv, Israel 6578317.
Certain Information Concerning Equity Awards to Office Holders
The following tables set forth information, as of March 16, 2017, the latest practicable date for inclusion in this annual report, concerning all
outstanding equity awards to Office Holders.
Options
Name of
Office
Holder
Chaim Hurvitz
Allen Baharaff
William Marth
Shmuel Nir
Date of grant
February 4, 2016
February 4, 2016
December 30, 2013
December 30, 2013
December 30, 2013
December 30, 2013
February 4, 2016
February 4, 2016
March 18, 2014
May 11, 2015
February 4, 2016
February 21, 2014
May 11, 2015
February 4, 2016
$
$
$
$
$
$
$
$
$
$
$
Exercise
price per
share ($)
Shares subject
to the option
Shares
vested and
unexercised
Shares
unvested
10,000(1)
30,000
266,085
123,499
150,903
150,174
140,000(1)
170,000
17,166
10,000
30,000
8,583
10,000
30,000
2,500
7,500
266,085
123,499
150,903
150,174
35,000
42,500
15,736
4,375
7,500
8,583
4,375
7,500
5.49
5.94
NIS0.01
0.53
NIS0.01
NIS0.01
5.49
5.94
3.57
5.49
5.94
3.57
5.49
5.94
113
Schedule
date of
expiration
Feb-04-2026
Feb-04-2026
Sep-2-2023
Sep-2-2023
Sep-2-2023
Sep-2-2023
Feb-04-2026
Feb-04-2026
7,500
22,500
0
0
0
0
105,000
127,500
1,430
Sep-02-2023
5,625 May-11-2025
Feb-04-2026
22,500
0
Sep-02-2023
5,625 May-11-2025
Feb-04-2026
22,500
Tali Yaron-Eldar
David Sidransky
Prof. Ran Oren
Dr. Tali Gorfine
Dr. Liat Hayardeny
Yohai Stenzler
George Tonelli
Yael Hollander
Guy Nehemya
May 11, 2015
February 4, 2016
May 11, 2015
February 4, 2016
December 22, 2013
January 3, 2016
July 28, 2016
July 28, 2016
January 31, 2017
September 6, 2016
January 31, 2017
December 30, 2014
January 3, 2016
March 30, 2015
August 6, 2015
January 3, 2016
December 30, 2014
January 3, 2016
December 30, 2014
January 3, 2016
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
10,000
30,000
10,000
30,000
64,152
30,000
20,000
40,000
40,000
40,000
40,000
20,000
22,500
10,000
45,000
30,000
40,000
22,500
40,000
22,500
4,375
7,500
4,375
7,500
64,152
7,500
0
0
0
0
0
10,000
5,625
4,375
16,875
7,500
20,000
5,625
20,000
5,625
5,625 May-11-2025
Feb-04-2026
22,500
5,625 May-11-2025
Feb-04-2026
22,500
0
22,500
20,000
Sep-02-2023
Jan-03-2026
July-28-2026
40,000
40,000
July-28-2026
Jan-31-2026
40,000
40,000
Sep-06-2026
Jan-31-2026
10,000
16,875
Dec-30-2024
Jan-03-2026
5,625 March-30-2025
April-6-2025
28,125
Jan-03-2026
22,500
20,000
16,875
Dec-30-2024
Jan-03-2026
20,000
16,875
Dec-30-2024
Jan-03-2026
5.49
5.94
5.49
5.94
3.57
7.61
4.47
4.47
3.84
4.05
3.84
5.49
7.61
9.73
9.13
7.61
5.49
7.61
5.49
7.61
114
RSUs
Name of
Office
Holder
Chaim Hurvitz
William Marth
Shmuel Nir
Tali Yaron-Eldar
David Sidransky
Yohai Stenzler
George Tonelli
Yael Hollander
Guy Nehemya
Date of grant
Feb-04-2016
Feb-04-2016
Feb-04-2016
Feb-04-2016
Feb-04-2016
Jan-03-2016
Jan-03-2026
Jan-03-2016
Jan-03-2016
Shares
subject to
the RSUs
Shares
vested
Shares
unvested
7,500
7,500
7,500
7,500
7,500
5,625
7,500
5,625
5,625
1,875
1,875
1,875
1,875
1,875
1,406
1,875
1,406
1,406
5,625
5,625
5,625
5,625
5,625
4,219
5,625
4,219
4,219
(1) This option grant was approved by our shareholders in May 2015, following the approval and recommendation of the Board and the Remuneration
Committee. However, the options were never granted as they were also subject to obtaining a tax pre-ruling from the Israeli Tax Authority, which was not
received at the time of the approval. The allocation was re-approved by our shareholders in our annual shareholders meeting held on May 25, 2016
following the re-approval and recommendation of our Board and Remuneration Committee
ITEM 7. Major Shareholders and Related Party Transactions.
A. Major Shareholders.
Except as set forth in “Item 6. Directors, Senior Management and Employees—E. Share Ownership”, to the best of our knowledge, no other person
who we know beneficially owns 5.0% or more of the Company’s ordinary shares outstanding as of March 16, 2017, the latest practicable date for inclusion in
this annual report. None of our shareholders has different voting rights from other shareholders. Other than as described herein, to the best of our knowledge,
we are not owned or controlled, directly or indirectly, by another corporation, by any foreign government or by any natural person or legal persons, severally
or jointly, and we are not aware of any arrangement that may, at a subsequent date, result in a change of control of our company.
B. Related Party Transactions.
The following is a summary description of the material terms of those transactions with related parties to which we, or our subsidiaries, are party and
which were in effect since January 1, 2016.
Financing Agreement with GRD
Following the completion of our initial public offering in the United States and following our ATM Offering, we have provided financing to GRD
from time to time, pursuant to which the Company and GRD have executed several capital notes for an aggregate outstanding principal amount of $40
million. The par value of such notes is in NIS, and they bear no interest nor repayment date; provided, however, that no repayment shall be made before the
fifth anniversary from the issuance date of each note.
Agreements with Directors and Officers
Employment and Consulting Agreements. We have entered into written employment or consulting agreements with certain of our Office Holders. These
agreements provide for notice periods of varying duration for termination of the agreement by us or by the relevant Office Holder, during which time the
Office Holder will continue to receive base salary and benefits. We have also entered into customary non-competition, confidentiality of information and
ownership of inventions arrangements with these Office Holders. However, the enforceability of the noncompetition provisions may be limited under
applicable law.
115
Options. Since our inception we have granted options to purchase our ordinary shares to certain of our Office Holders. Such option agreements may
contain acceleration provisions upon certain merger, acquisition, or change of control transactions. We describe our 2013 Plan under “Item 6. Directors,
Senior Management and Employees—B. Compensation—2013 Incentive Share Option Plan.” If the relationship between us and an Office Holder is
terminated except for “cause” (as defined in the 2013 Plan and/or the applicable option award agreement), options that are vested will generally remain
exercisable for 90 days after such termination; provided, however, that prior to the date of such termination, our Remuneration Committee may authorize an
extension of the terms of all or part of the vested options beyond the date of such termination for a period not to exceed the period during which the options
by their terms would otherwise have been exercisable, and provided further that the vested options may lose their status as incentive stock options and/or
approved 102 option if such extension extends beyond the maximum extension authorized by the Ordinance or the Code, as applicable. Dr. Maya Halpern has
ceased to serve as a director and Chief Medical Officer of the Company effective as of April 9, 2016, and officially retired from the Company on May 15,
2016. In our 2016 annual meeting, the shareholders approved an acceleration of the vesting dates of 30,000 of Dr. Halpern's unvested options and an
extension of the exercise period of all 60,000 vested options owned by Dr. Maya Halpern until the lapse of five years from the date of Dr. Halpern's retirement
date. On November 7, 2016, we announced that Mr. Josh Blacher, the Company's then-Chief Financial Officer, had notified the Company of his desire to
leave the Company to pursue other opportunities effective as of January 31, 2017. Our Remuneration Committee and Board approved an extension of the
exercise period of all 58,750 vested options owned by Mr. Josh Blacher until the lapse of one year from Mr. Blacher's termination of employment date.
RSUs. We have granted RSUs to certain of our Office Holders. Such award agreements may contain acceleration provisions upon certain merger,
acquisition, or change of control transactions. We describe our 2013 Plan under “Item 6. Directors, Senior Management and Employees—B. Compensation—
2013 Incentive Share Option Plan.” If the relationship between us and an Office Holder is terminated, RSUs that are vested shall be settled in accordance with
the settlement schedule set forth in the applicable award agreement.
C. Interests of Experts and Counsel.
Not applicable.
ITEM 8. Financial Information.
A. Consolidated Financial Statements and Other Financial Information.
See “Item 18. Financial Statements” for a list of all financial statements filed as part of this annual report.
Legal Matters
We are neither party to any legal or arbitration proceedings, including those relating to bankruptcy, receivership or similar proceedings and those
involving any third-party, nor any governmental proceedings pending or known to be contemplated, which may have, or have had in the recent past,
significant effects on the Company’s financial position or profitability.
Dividend Policy
We have never declared or paid any cash dividends on our ordinary shares and do not anticipate paying any cash dividends in the foreseeable future.
Payment of cash dividends, if any, in the future will be at the discretion of our Board and will depend on then-existing conditions, including our financial
condition, operating results, contractual restrictions, capital requirements, business prospects and other factors our Board may deem relevant.
Payment of dividends may also be subject to Israeli withholding taxes. See “Item 10. Additional Information—E. Taxation—Certain Israeli Tax
Considerations” for additional information.
B. Significant Changes.
No significant changes with respect to our consolidated financial statements have occurred since December 31, 2016.
116
ITEM 9. The Offer and Listing.
9.A.4 Offer and Listing Details
Our ordinary shares have been listed on the Nasdaq Capital Market under the symbol “GLMD” since March 13, 2014. Prior to that date, there was no
public trading market for our ordinary shares. Our initial public offering was priced at $13.50 per share. The following table sets forth for the periods
indicated the high and low sales prices per ordinary share as reported on the NASDAQ Capital Market:
Annual Information:
2014
2015
2016
Quarterly Information
First Quarter 2015
Second Quarter 2015
Third Quarter 2015
Fourth Quarter 2015
First Quarter 2016
Second Quarter 2016
Third Quarter 2016
Fourth Quarter 2016
Monthly Information:
September 2016
October 2016
November 2016
December 2016
January 2017
February 2017
9.B. Plan of Distribution
Not applicable.
9.C. Market for Ordinary Shares
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
Low
High
4.58 $
5.54 $
2.78 $
5.54 $
8.10 $
7.00 $
7.06 $
3.50 $
3.88 $
3.53 $
2.78 $
3.53 $
3.25 $
2.78 $
3.04 $
3.43 $
3.90 $
18.73
13.50
7.91
13.50
11.86
10.94
10.20
7.91
7.72
5.77
4.74
5.77
4.74
4.35
4.06
4.30
5.24
Our ordinary shares have been quoted on the NASDAQ Global Market since March 18, 2014 under the symbol “GLMD.” We are considering
applying for a dual listing of our shares on the Tel Aviv Stock Exchange and will have a separate announcement in the event we decide to proceed with such
listing and receive all necessary approvals.
9.D. Selling Shareholders
Not applicable.
9.E. Dilution
Not applicable.
9.F. Expenses of the issue
Not applicable.
117
ITEM 10. Additional Information.
A. Share Capital.
Not applicable.
B. Memorandum and Articles of Association.
Our original articles of association were registered with the Israeli Registrar of Companies at the time of incorporation of the Company on July 31,
2013, under our registration number 51-495351-2. At the 2014 annual general meeting of shareholders, our shareholders adopted our Articles, which became
effective on the consummation of our initial public offering in the United States in March 2014, whereby the Company became a public company under the
Companies Law. Under Section 2 of our Articles, the purpose of the Company is to engage in any lawful activity.
The following description of our share capital and provisions of our Articles are summaries and do not purport to be complete and are qualified in
their entirety by the complete text of the Articles, which are filed as exhibits to this annual report and incorporated by reference herein, and by Israeli law.
Election of Directors
The Board consists of three classes of directors (not including external directors who do not form part of any class), with one class being elected
each year by shareholders at the Company’s annual general meeting for a term of approximately three years. In accordance with our Articles, directors so
elected cannot be removed from office by the shareholders until the expiration of their term of office. Ordinary shares do not have cumulative voting rights.
As a result, the holders of ordinary shares that represent a simple majority of the voting power represented at a shareholders’ meeting and voting at the
meeting have the power to elect all of the directors put forward for election, subject to specific requirements under the Companies Law with respect to the
election of external directors. For further information as to these appointments, see “Item 6—Directors, Senior Management and Employees—C. Board
Practices.”
Under the Articles, a director shall vacate his or her office if that director dies; is declared bankrupt; is declared to be legally incompetent; resigns
such office by notice in writing given to the Company; is not re-elected by the shareholders upon expiration of his or her term at the relevant annual general
meeting of shareholders; or otherwise as provided in the Companies Law.
Our Articles provide that a director may, by written notice to the Company, appoint another person to serve as an alternate director provided that
such appointment is approved by a majority of the directors then in office, and that such appointing director may remove such alternate director. Any alternate
director shall be entitled to notice of meetings of the Board and of relevant committees and to attend and vote accordingly, except that the alternate has no
standing at any meeting at which the appointing director is present or at which the appointing director is not entitled to participate as provided in the
Companies Law. A person who is not qualified to be appointed as a director, or a person who already serves as a director or an alternate director, may not be
appointed as an alternate director.
Unless the appointing director limits the time or scope of the appointment, the appointment is effective for all purposes until the earlier of (i) the
appointing director ceasing to be a director; (ii) the appointing director terminating the appointment; or (iii) the occurrence, with respect to the alternate, of
any of the circumstances under which a director shall vacate his or her office. The appointment of an alternate director does not in itself diminish the
responsibility of the appointing director as a director. An alternate director is solely responsible for his or her actions and omissions and is not deemed an
agent of the appointing director. Under the Companies Law, external directors cannot generally appoint alternate directors, and a person who is not qualified
to be appointed as an “independent” director may not be appointed as an alternate to an independent director. See “Item 6—Directors, Senior Management
and Employees—C. Board Practices.” At present, there are no effective appointments of alternate directors for our Board.
118
Borrowing Powers
Our Board may from time to time, and at its reasonable discretion, borrow or secure the payment of any sum or sums of money for reasonable
Company purposes. The directors may raise or secure the repayment of such sum or sums in such manner, at such times and upon such terms and conditions
in all respects as they see fit and, in particular, by issuing bonds, perpetual or redeemable debentures, debenture stock or any mortgages, charges or other
securities on the undertaking of the whole or any part of the property of the Company, both present and future, including current uncalled capital and called
but unpaid capital.
For discussions relating to certain compensation-related requirements of the Companies Law, external directors and financial experts, committees of
the Board, and exculpation and indemnification of directors and officers, see “Item 6 - Directors, Senior Management and Employees”.
Fiduciary Duties of Directors and Executive Officers
The Companies Law codifies the fiduciary duties that Office Holders owe to a company. Each person listed in the table under “Item 6. Directors,
Senior Management and Employees—A. Directors and Senior Management” is an Office Holder under the Companies Law.
An Office Holder’s fiduciary duties consist of a duty of care and a duty of loyalty. The duty of care requires an Office Holder to act with the level of
care with which a reasonable Office Holder in the same position would have acted under the same circumstances. The duty of loyalty requires that an Office
Holder act in good faith and in the best interests of a company. The duty of care includes a duty to use reasonable means to obtain:
·
·
information on the advisability of a given action brought for his or her approval or performed by virtue of his or her position; and
all other important information pertaining to these actions.
The duty of loyalty requires an Office Holder to act in good faith and for the benefit of a company, and includes a duty to:
·
·
·
·
refrain from any conflict of interest between the performance of his or her duties to the company and his or her other duties or personal affairs;
refrain from any activity that is competitive with the company;
refrain from exploiting any business opportunity of the company to receive a personal gain for himself or herself or others; and
disclose to the company any information or documents relating to the company’s affairs which the Office Holder received as a result of his or
her position as an Office Holder.
Disclosure of Personal Interests of an Office Holder
The Companies Law requires that an Office Holder promptly disclose to the board of directors any personal interest that he or she may have
concerning any existing or proposed transaction with a company, as well as any substantial information or document with respect thereof. An interested Office
Holder’s disclosure must be made promptly and in any event no later than the first meeting of the board of directors at which the transaction is considered.
Under the Companies Law, a "personal interest" includes an interest of any person in an action or transaction of a company, including a personal
interest of one’s relative or of a corporate body in which such person or a relative of such person is a 5% or greater shareholder, director or general manager
or in which he or she has the right to appoint at least one director or the general manager, but excluding a personal interest stemming from one’s ownership of
shares in a company. A personal interest furthermore includes the personal interest of a person for whom the Office Holder holds a voting proxy or the
interest of the Office Holder with respect to his or her vote on behalf of the shareholder for whom he or she holds a proxy, even if such shareholder itself has
no personal interest in the approval of the matter. An Office Holder is not, however, obliged to disclose a personal interest if it derives solely from the
personal interest of a relative of such Office Holder in a transaction that is not considered an extraordinary transaction.
119
Under the Companies Law, an extraordinary transaction is defined as any of the following:
·
·
·
a transaction other than in the ordinary course of business;
a transaction that is not on market terms; or
a transaction that may have a material impact on a company’s profitability, assets or liabilities.
Approval Procedure
If an Office Holder has a personal interest in a transaction, approval by the board of directors is required for the transaction, unless the articles of
association of a company provide for a different method of approval. Our Articles do not provide for any such different method of approval. Further, so long
as an Office Holder has disclosed his or her personal interest in a transaction, the board of directors may approve an action by the Office Holder that would
otherwise be deemed a breach of the duty of loyalty. However, a company may not approve a transaction or action that is adverse to such company’s interest
or that is not performed by the Office Holder in good faith. Approval first by a company’s audit committee and subsequently by the board of directors is
required for an extraordinary transaction in which an Office Holder has a personal interest. Arrangements regarding the Office Holders’ terms of office and
employment (which includes compensation, indemnification or insurance) generally require the approval of the remuneration committee, board of directors
and, in certain circumstances, the shareholders, in that order, and must generally be consistent with the Company’s Compensation Policy, as described under
see “Item 6—Directors, Senior Management and Employees—B. Compensation.”
Generally, a person who has a personal interest in a matter which is considered at a meeting of the board of directors or the audit committee may not
be present at such a meeting or vote on that matter unless a majority of the directors or members of the audit committee have a personal interest in the matter,
or unless the chairman of the audit committee or board of directors (as applicable) determines that he or she should be present in order to present the
transaction that is subject to approval. Generally, if a majority of the members of the audit committee and the board of directors (as applicable) has a personal
interest in the approval of a transaction, then all directors may participate in discussions of the audit committee and/or the board of directors on such
transaction and the voting on approval thereof, but shareholder approval is also required for such transaction.
Transactions with Controlling Shareholders
Pursuant to Israeli law, the disclosure requirements regarding personal interests that apply to directors and executive officers also apply to a
controlling shareholder of a public company. In the context of a transaction involving a controlling shareholder or an officer who is a controlling shareholder
of a company, a controlling shareholder also includes any shareholder who holds 25% or more of the voting rights if no other shareholder holds more than
50% of the voting rights. Two or more shareholders with a personal interest in the approval of the same transaction are deemed to be a single shareholder and
may be deemed a controlling shareholder for the purpose of approving such transaction.
Extraordinary Transactions, including private placement transactions, with a controlling shareholder or in which a controlling shareholder has a
personal interest, and engagements with a controlling shareholder or his or her relative, directly or indirectly, including through a corporation under his or her
control, regarding the company’s receipt of services from the controlling shareholder, and if such controlling shareholder is also an office holder or an
employee of the company, regarding his or her terms of service or employment, require the approval of the audit committee or remuneration committee, the
board of directors and the shareholders of a company by a Special Majority, in that order.
Arrangements regarding the terms of office and employment of a controlling shareholder who is an Office Holder, and the terms of employment of a
controlling shareholder who is an employee of a company, require the approval of the remuneration committee, board of directors and the shareholders by a
Special Majority, in that order, as further described above under “Item 6—Directors, Senior Management and Employees—B. Compensation” with respect to
Office Holders’ compensation.
120
To the extent that any such transaction with a controlling shareholder is for a period extending beyond three years, approval is required once every
three years, unless, with respect to extraordinary transactions with a controlling shareholder or in which a controlling shareholder has a personal interest, the
audit committee determines that the duration of the transaction is reasonable given the circumstances related thereto.
Dividends and Dividend Policy
Dividends may be distributed only out of profits available for dividends as determined by the Companies Law, provided that there is no reasonable
concern that the distribution will prevent the Company from being able to meet its existing and anticipated obligations when they become due. Under the
Companies Law, the distribution amount is further limited to the greater of retained earnings or earnings generated over the two most recent years legally
available for distribution. In the event that we do not have retained earnings or earnings generated over the two most recent years legally available for
distribution, we may seek the approval of the court in order to distribute a dividend. The court may approve our request if it is convinced that there is no
reasonable concern that the payment of a dividend will prevent us from satisfying our existing and foreseeable obligations as they become due.
Generally, under the Companies Law, the decision to distribute dividends and the amount to be distributed is made by a company’s board of
directors. The Articles provide that the Board may from time to time declare, and cause the Company to pay, such dividends as may appear to it to be justified
by the profits of the Company and that the Board has the authority to determine the time for payment of such dividends and the record date for determining
the shareholders entitled to receive such dividends, provided the date is not before the date of the resolution to distribute the dividend. Declaration of
dividends does not require shareholder approval.
Pursuant to Section 4(b) of the Company’s Articles, subject to the rights of holders of shares with limited or preferred rights, ordinary shares shall
confer upon the holders thereof equal rights to receive dividends and to participate in the distribution of the assets of the Company upon its winding-up, in
proportion to the amount paid up or credited as paid up on account of the nominal value of the shares held by them respectively and in respect of which such
dividends are being paid or such distribution is being made, without regard to any premium paid in excess of the nominal value, if any.
We have never declared or paid any cash dividends on our ordinary shares and do not anticipate paying any cash dividends in the foreseeable future.
Payment of cash dividends, if any, in the future will be at the discretion of our Board and will depend on then-existing conditions, including our financial
condition, operating results, contractual restrictions, capital requirements, business prospects and other factors our Board may deem relevant.
Payment of dividends may also be subject to Israeli withholding taxes. See “Taxation — Israeli Tax Considerations” for additional information.
Transfer of Shares
Ordinary shares which have been fully paid-up are transferable by submission of a proper instrument of transfer to the Company or its transfer agent
together with the certificate of the shares to be transferred and such other evidence, if any, as the directors may require to prove the rights of the intending
transferor in the transferred shares.
Our ordinary shares that are fully paid for are issued in registered form and may be freely transferred under our Articles, unless the transfer is
restricted or prohibited by applicable law or the rules of a stock exchange on which the shares are traded. The ownership or voting of our ordinary shares by
non-residents of Israel is not restricted in any way by our Articles or the laws of the State of Israel, except for ownership by nationals of some countries that
are, or have been, declared as enemies of Israel.
121
Shareholder Meetings
The Articles provide that an annual general meeting must be held at least once in every calendar year, not later than 15 months after the last
preceding annual general meeting, at such time and place as may be determined by the Board. The Board may, in its discretion, convene additional
shareholder meetings and, pursuant to the Companies Law, must convene a meeting upon the demand of two directors or one quarter of the directors then in
office or upon the demand of the holder or holders of 5% of the Company’s issued share capital and 1% of its voting rights or upon the demand of the holder
or holders of 5% of its voting rights. All demands for shareholder meetings must set forth the items to be considered at that meeting. Pursuant to the
Companies Law, the holder or holders of 1% of the Company’s voting rights may request the inclusion of an item on the agenda of a future shareholder
meeting, provided the item is appropriate for discussion at a shareholder meeting.
The agenda for a shareholder meeting is determined by the Board and must include matters in respect of which the convening of a shareholder
meeting was demanded and any matter requested to be included by holder(s) of 1% of the Company’s voting rights. According to regulations promulgated
pursuant to the Companies Law and governing the terms of notice and publication of shareholder meetings of public companies, or the General Meeting
Regulations, holder(s) of one percent or more of the Company’s voting rights may propose any matter appropriate for deliberation at a shareholder meeting to
be included on the agenda of a shareholder meeting, generally by submitting a proposal within seven days of publicizing the convening of a shareholder
meeting, or, if the Company publishes a preliminary notice at least 21 days prior to publicizing the convening of a meeting (stating its intention to convene
such meeting and the agenda thereof), within 14 days of such preliminary notice. Any such proposal must further comply with the information requirements
under applicable law and the Articles.
Pursuant to the Companies Law and regulations promulgated thereunder with respect to the convening of general meetings in a public company,
shareholder meetings generally require prior notice of not less than 21 days, and for certain matters specified in the Companies Law, not less than 35 days.
The function of the annual general meeting is to elect directors in accordance with the Articles, receive and consider the profit and loss account, the balance
sheet and the ordinary reports and accounts of the directors and auditors, appoint auditors and fix their remuneration and transact any other business which
under the Articles or applicable law may be transacted by the shareholders of a company in general meeting.
Our Articles determine that the quorum required for either an annual (regular) or an extraordinary (special) general meeting of shareholders consists
of at least two shareholders present in person or by proxy holding shares comprising in the aggregate more than 33.33% of the voting rights of the Company.
If a meeting is convened by the Board upon the demand of shareholders or upon the demand of less than 50% of the directors then in office or directly by
such shareholders or directors and no quorum is present within half an hour from the time appointed, it shall be cancelled. If a meeting is otherwise called and
no quorum is present within such time, the meeting is adjourned to the same day one week later at the same time and place or at such other time and place as
the Board may determine and specify in the notice of the general meeting and it shall not be necessary to give notice of such adjournment. If a quorum is not
present within half an hour from the time stated for such adjourned meeting, any two shareholders present in person or by proxy at such meeting shall
constitute a quorum even if, between them, they represent shares conferring 33.33% or less of the voting rights of the Company.
Generally, under the Companies Law and the Articles, shareholder resolutions are deemed adopted if approved by the holders of a simple majority of
the voting rights represented at a meeting and voting unless a different majority is required by law or pursuant to the Articles. The Companies Law provides
that resolutions on certain matters, such as amending a company’s articles of association, assuming the authority of the board of directors in certain
circumstances, appointing auditors, appointing external directors, approving certain transactions, increasing or decreasing the registered share capital and
approving most mergers must be made by the shareholders at a general meeting. A company may determine in its articles of association certain additional
matters in respect of which resolutions by the shareholders in a general meeting will be required.
Access to Corporate Records
Under the Companies Law, all shareholders generally have the right to review minutes of our general meetings, our shareholder register and register
of significant shareholders (as defined in the Companies Law), our articles of association, our financial statements, other documents as provided in the
Companies Law, and any document we are required by law to file publicly with the Israeli Companies Registrar. Any shareholder who specifies the purpose
of its request may request to review any document in our possession that relates to: (i) any action or transaction with a related party which requires
shareholder approval under the Companies Law; or (ii) the approval, by the board of directors, of an action in which an office holder has a personal interest.
We may deny a request to review a document if we determine that the request was not made in good faith, or if such denial is necessary to protect our interest
or protect a trade secret or patent.
122
Shareholder Duties
Pursuant to the Companies Law, a shareholder has a duty to act in good faith and in a customary manner toward a company and other shareholders
and to refrain from abusing his or her power in the company, including, among other things, in voting at the general meeting of shareholders and at class
shareholder meetings with respect to the following matters:
·
·
·
·
an amendment to the company’s articles of association;
an increase of the company’s authorized share capital;
a merger; or
approval of interested party transactions and acts of Office Holders that require shareholder approval.
In addition, a shareholder also has a general duty to refrain from discriminating against other shareholders.
Certain shareholders have a further duty of fairness toward a company. These shareholders include any controlling shareholder, any shareholder who
knows that it has the power to determine the outcome of a shareholder vote or a shareholder class vote and any shareholder who has the power to appoint or to
prevent the appointment of an Office Holder of the company or other power towards the company. The Companies Law does not define the substance of this
duty of fairness, except to state that the remedies generally available upon a breach of contract will also apply in the event of a breach of the duty to act with
fairness, taking the shareholder’s position in the company into account.
Mergers and Acquisitions under Israeli Law
(i) Merger
The Companies Law permits merger transactions if approved by each party’s board of directors, and, unless certain requirements described under the
Companies Law are met, a majority of each party’s shareholders, by a majority of each party’s shares that are voted on the proposed merger at a shareholders’
meeting.
The board of directors of a merging company is required pursuant to the Companies Law to discuss and determine whether in its opinion there exists
a reasonable concern that as a result of a proposed merger, the surviving company will not be able to satisfy its obligations towards its creditors, taking into
account the financial condition of the merging companies. If the board of directors has determined that such a concern exists, it may not approve a proposed
merger. Following the approval of the board of directors of each of the merging companies, the boards of directors must jointly prepare a merger proposal for
submission to the Israeli Registrar of Companies.
For purposes of the shareholder vote, unless a court rules otherwise, the merger will not be deemed approved if a majority of the shares voting at the
shareholders meeting (excluding abstentions) that are held by parties other than the other party to the merger, any person who holds 25% or more of the
means of control of the other party to the merger or any one on their behalf including their relatives or corporations controlled by any of them, vote against
the merger. In addition, if the non-surviving entity of the merger has more than one class of shares, the merger must be approved by each class of
shareholders.
If the transaction would have been approved but for the separate approval of each class of shares or the exclusion of the votes of certain shareholders
as provided above, a court may still rule that the company has approved the merger upon the request of holders of at least 25% of the voting rights of a
company, if the court holds that the merger is fair and reasonable, taking into account the appraisal of the merging companies’ value and the consideration
offered to the shareholders.
123
Under the Companies Law, each merging company must send a copy of the proposed merger plan to its secured creditors. Unsecured creditors are
entitled to receive notice of the merger, as provided by the regulations promulgated under the Companies Law. Upon the request of a creditor of either party
to the proposed merger, the court may delay or prevent the merger if it concludes that there exists a reasonable concern that, as a result of the merger, the
surviving company will be unable to satisfy the obligations of the target company. The court may also give instructions in order to secure the rights of
creditors.
In addition, a merger may not be completed unless at least 50 days have passed from the date that a proposal for approval of the merger was filed
with the Israeli Registrar of Companies and 30 days from the date that shareholder approval of both merging companies was obtained.
(ii) Special Tender Offer
The Companies Law provides that an acquisition of shares of an Israeli public company must be made by means of a special tender offer if as a
result of the acquisition the purchaser would become a holder of 25% or more of the voting rights in the company. This rule does not apply if there is already
another holder of 25% or more of the voting rights in the company. Similarly, the Companies Law provides that an acquisition of shares in a public company
must be made by means of a special tender offer if as a result of the acquisition the purchaser would become a holder of more than 45% of the voting rights in
the company, if there is no other shareholder of the company who holds more than 45% of the voting rights in the company.
These requirements do not apply if the acquisition (i) occurs in the context of a private offering, on the condition that the shareholders’ meeting
approved the acquisition as a private offering whose purpose is to give the acquirer at least 25% of the voting rights in the company if there is no person who
holds at least 25% of the voting rights in the company, or as a private offering whose purpose is to give the acquirer 45% of the voting rights in the company,
if there is no person who holds 45% of the voting rights in the company; (ii) was from a shareholder holding at least 25% of the voting rights in the company
and resulted in the acquirer becoming a holder of at least 25% of the voting rights in the company; or (iii) was from a holder of more than 45% of the voting
rights in the company and resulted in the acquirer becoming a holder of more than 45% of the voting rights in the company.
The special tender offer may be consummated only if (i) at least 5% of the voting power attached to the company’s outstanding shares will be
acquired by the offeror and (ii) the special tender offer is accepted by a majority of the votes of those offerees who gave notice of their position in respect of
the offer; in counting the votes of offerees, the votes of a holder of control in the offeror, a person who has personal interest in acceptance of the special tender
offer, a holder of at least 25% of the voting rights in the company, or any person acting on their or on the offeror’s behalf, including their relatives or
companies under their control, are not taken into account.
In the event that a special tender offer is made, a company’s board of directors is required to express its opinion on the advisability of the offer or
shall abstain from expressing any opinion if it is unable to do so, provided that it gives the reasons for its abstention. In addition, the board of directors must
disclose any personal interest each of member of the board of directors have in the offer or stems therefrom.
An office holder in a target company who, in his or her capacity as an office holder, performs an action the purpose of which is to cause the failure of
an existing or foreseeable special tender offer or is to impair the chances of its acceptance, is liable to the potential purchaser and shareholders for damages
resulting from his acts, unless such office holder acted in good faith and had reasonable grounds to believe he or she was acting for the benefit of the
company. However, office holders of the target company may negotiate with the potential purchaser in order to improve the terms of the special tender offer,
and may further negotiate with third parties in order to obtain a competing offer.
If a special tender offer was accepted by a majority of the shareholders who announced their stand on such offer, then shareholders who did not
respond to the special offer or had objected to the special tender offer may accept the offer within four days of the last day set for the acceptance of the offer.
In the event that a special tender offer is accepted, then the purchaser or any person or entity controlling it and any corporation controlled by them shall
refrain from making a subsequent tender offer for the purchase of shares of the target company and may not execute a merger with the target company for a
period of one year from the date of the offer, unless the purchaser or such person or entity undertook to effect such an offer or merger in the initial special
tender offer.
124
(iii) Full Tender Offer
Under the Companies Law, a person may not acquire shares in a public company if, after the acquisition, he will hold more than 90% of the shares or
more than 90% of any class of shares of that company, unless a tender offer is made to purchase all of the shares or all of the shares of the particular class.
The Companies Law also provides, subject to certain exceptions, that as long as a shareholder in a public company holds more than 90% of the company’s
shares or of a class of shares, that shareholder shall be precluded from purchasing any additional shares unless tendering an offer to purchase all of the
outstanding shares of the company or the applicable class of the shares. If the shareholders who do not respond to or accept the offer hold less than 5% of the
issued and outstanding share capital of the company or of the applicable class of the shares, and more than half of the shareholders who do not have a
personal interest in the offer accept the offer, all of the shares that the acquirer offered to purchase will be transferred to the acquirer by operation of law.
However, a tender offer will be accepted if the shareholders who do not accept it hold less than 2% of the issued and outstanding share capital of the company
or of the applicable class of the shares.
Upon a successful completion of such a full tender offer, any shareholder that was an offeree in such tender offer, whether such shareholder accepted
the tender offer or not, has the right, within six months from the date of acceptance of the tender offer, to petition the court to determine that the tender offer
was for less than fair value and that the fair value should be paid as determined by the court. However, under certain conditions, the purchaser may provide in
its offer that an offeree who accepted the tender offer will not be entitled to such rights.
If the conditions set forth above are not met, the purchaser may not acquire additional shares of the company from shareholders who accepted the
tender offer to the extent that following such acquisition, the purchaser would own more than 90% of the company’s issued and outstanding share capital.
Anti-Takeover Measures under Israeli Law
The Companies Law allows us to create and issue shares having rights different from those attached to our ordinary shares, including shares
providing certain preferred rights, distributions or other matters and shares having preemptive rights. As of the date hereof, no preferred shares are authorized
under our Articles. In the future, if we do authorize, create and issue a specific class of preferred shares, such class of shares, depending on the specific rights
that may be attached to it, may have the ability to frustrate or prevent a takeover or otherwise prevent our shareholders from realizing a potential premium
over the market value of their ordinary shares. The authorization and designation of a class of preferred shares will require an amendment to our Articles,
which requires the affirmative vote of at least 75% of the voting rights of the Company represented personally or by proxy and voting thereon at a general
meeting at which a quorum is present. The convening of the general meeting, the shareholders entitled to participate and the majority vote required to be
obtained at such a meeting will be subject to the requirements set forth in the Articles and the Companies Law as described above in “— Shareholder
Meetings.”
In addition, certain provisions of the Articles may have the effect of rendering more difficult or discouraging an acquisition of the Company deemed
undesirable by the Board. Those provisions include: (i) limiting the ability of the Company’s shareholders to convene general meetings of the Company (as
discussed above); (ii) controlling procedures for the conduct of shareholder and Board meetings, including quorum and voting requirements; and (iii) the
election and removal of directors. Moreover, the classification of the Board into three classes with terms of approximately three years each, and the
requirement under Companies Law to have at least two external directors, who cannot readily be removed from office, may make it more difficult for
shareholders who oppose the policies of the Board to remove a majority of the then current directors from office quickly. It may also, in some circumstances,
together with the other provisions of the Articles and Israeli law, deter or delay potential future merger, acquisition, tender or takeover offers, proxy contests
or changes in control or management of the Company, some of which could be deemed by certain shareholders to be in their best interests and which could
affect the price some investors are willing to pay for ordinary shares.
125
Changes in Capital
On July 31, 2013, the Company’s incorporation date, the registered share capital of the Company was NIS 500,000 divided into 50,000,000 ordinary
shares, NIS 0.01 par value per share.
Our Articles enable us to increase or reduce our share capital. Any such changes are subject to the provisions of the Companies Law and must be
approved by a resolution duly passed by our shareholders at a general meeting by voting on such change in the capital. In addition, transactions that have the
effect of reducing capital, such as the declaration and payment of dividends in the absence of sufficient retained earnings or profits and an issuance of shares
for less than their nominal value (under certain circumstances), require the approval of both our Board and an Israeli court.
Changes in Shareholder Rights
Pursuant to Section 6(a) of the Company’s Articles, if at any time the share capital is divided into different classes of shares, the Company may by
shareholder resolution, unless otherwise provided by the terms of issue of the shares of that class, modify, convert, broaden, add or otherwise alter the rights,
privileges, advantages, restrictions and provisions related or unrelated at that time to the shares of any class with the sanction of a resolution passed by a
simple majority of those present, personally or by proxy, and voting thereon at a separate general meeting of the holders of the shares of that class. Such
majority approval is consistent with Israeli law.
C. Material Contracts
For a description of our material agreements relating to our strategic collaborations and research arrangements and other material agreements, please
refer to “Item 4.B. Information on the Company—Business Overview—Strategic Collaborations, Research Arrangements and other Material Agreements.”
Employment Agreements
See “Item 6. Directors, Senior Management and Employees—B. Compensation—Employment Agreements and Arrangements with Directors and
Related Parties.”
D. Exchange Controls.
There are no Israeli government laws, decrees, regulations or other legislation that restrict or that affect our export or import of capital, including the
availability of cash and cash equivalents for use by us and our wholly owned subsidiaries, or the remittance of dividends, interest or other payments to non-
resident holders of our securities, except for ownership by nationals of certain countries that are, or have been, declared as enemies of Israel or otherwise as
set forth under “Item 10. Additional Information—E. Taxation.”
E. Taxation.
The following description is not intended to constitute a complete analysis of all tax consequences relating to the ownership or disposition of our
ordinary shares. You should consult your own tax advisor concerning the tax consequences of your particular situation, as well as any tax consequences that
may arise under the laws of any state, local, foreign, including Israel, or other taxing jurisdiction.
Certain Israeli Tax Considerations
The following is a brief summary of the material Israeli income tax laws applicable to us. This section also contains a discussion of material Israeli
tax consequences concerning the ownership and disposition of our ordinary shares. This summary does not discuss all the aspects of Israeli tax law that may
be relevant to a particular investor in light of his or her personal investment circumstances or to some types of investors subject to special treatment under
Israeli law. Examples of this kind of investor include residents of Israel or investors in securities who are subject to special tax regimes not covered in this
discussion. To the extent that the discussion is based on new tax legislation that has not yet been subject to judicial or administrative interpretation, we cannot
assure you that the appropriate tax authorities or the courts will accept the views expressed in this discussion. This summary is based on laws and regulations
in effect as of the date hereof and does not take into account possible future amendments which may be under consideration.
126
General Corporate Tax Structure in Israel
Israeli resident companies (as defined below), such as the Company, are generally subject to corporate tax at the rate of 24% of their taxable income,
as of January 1, 2017 (25% in 2016), and 23% in 2018 and thereafter.
Capital gains derived by an Israeli resident company are generally subject to tax at the same rate as the corporate tax rate. Under Israeli tax
legislation, a corporation will be considered an “Israeli resident” if it meets one of the following: (i) it was incorporated in Israel; or (ii) the control and
management of its business are exercised in Israel.
Law for the Encouragement of Industry (Taxes), 5729-1969
The Law for the Encouragement of Industry (Taxes), 5729-1969, which we refer to as the Industry Encouragement Law, provides several tax benefits
for “Industrial Companies,” which are defined as Israeli resident-companies of which 90% or more of their income in any tax year is derived from an
“Industrial Enterprise” that it owns, or an enterprise whose principal activity in a given tax year is industrial production. Eligibility for benefits under the
Industry Encouragement Law is not contingent upon approval of any governmental authority.
The following corporate tax benefits, among others, are available to Industrial Companies:
·
·
·
amortization over an eight year period of the cost of purchasing a patent, rights to use a patent and rights to know-how, which are used for
the development or advancement of the company, commencing in the year in which such rights were first exercised;
under limited conditions, an election to file consolidated tax returns with related Industrial Companies; and
deductions of expenses related to a public offering in equal amounts over a three year period.
Currently, we are not qualified as an Industrial Company within the meaning of the Industry Encouragement Law, and there can be no assurance that
we will qualify as an Industrial Company in the future or that, even if we qualify as an Industrial Company, the benefits described above will be available to
us at all.
Law for the Encouragement of Capital Investments, 5719-1959
The Law for the Encouragement of Capital Investments, 5719-1959, which we refer to as the Investment Law, provides certain incentives for capital
investments in production facilities (or other eligible assets). The Investment Law was significantly amended effective April 1, 2005 and further amended as
of January 1, 2011, or the 2011 Amendment. The 2011 Amendment introduced new benefits to replace those granted in accordance with the provisions of the
Investment Law in effect prior to the 2011 Amendment.
Tax Benefits Under the 2011 Amendment
The 2011 Amendment canceled the availability of the benefits granted to Industrial Companies under the Investment Law prior to 2011 and, instead,
introduced new benefits for income generated by a “Preferred Company” through its “Preferred Enterprise” (as such terms are defined in the Investment Law)
as of January 1, 2011.
The definition of a Preferred Company includes a company incorporated in Israel that is not fully owned by a governmental entity, and that has,
among other things, a Preferred Enterprise and is controlled and managed from Israel. Under a recent amendment announced in August 2013, or the 2013
Amendment, beginning in 2014 and in each year thereafter, a Preferred Company may only be entitled to reduce corporate tax rates of 16%, unless the
Preferred Enterprise is located in a specified development zone, in which case the rate will be 9% (reduced to 7.5% beginning in 2017). Income derived by a
Preferred Company from a “Special Preferred Enterprise” (as such term is defined in the Investment Law) would be entitled, during a benefit period of ten
years, to further reduced tax rates of 8%, or 5% if the Special Preferred Enterprise is located in a certain development zone.
127
As of January 1, 2014, dividends paid out of income attributed to a Preferred Enterprise are subject to withholding tax at source at the rate of 20%
unless a lower tax rate is provided under an applicable tax treaty. However, if such dividends are paid to an Israeli company, no tax is required to be withheld.
Currently, we are not entitled to receive the tax benefits described above and there can be no assurance that we will be entitled to receive such
benefits at any time in the future. Furthermore, there can be no assurance that even if in the future we meet the relevant requirements for such tax benefits,
that such tax benefits will be available to us at all.
Taxation of Our Israeli Individual Shareholders on Receipt of Dividends
Israeli residents who are individuals are generally subject to Israeli income tax for dividends paid on our ordinary shares (other than bonus shares or
share dividends) at a rate of 25%, or 30% if the recipient of such dividend is a Substantial Shareholder (as defined below) at the time of distribution or at any
time during the preceding 12 month period.
A “Substantial Shareholder” is generally a person who alone, or together with his or her relative or another person who collaborates with him or her
on a regular basis, holds, directly or indirectly, at least 10% of any of the “means of control” of a corporation. “Means of control” generally include the right
to vote, receive profits, nominate a director or an officer, receive assets upon liquidation or instruct someone who holds any of the aforesaid rights regarding
the manner in which he or she is to exercise such right(s), all regardless of the source of such right.
With respect to individuals, the term “Israeli resident” is generally defined under Israeli tax legislation as a person whose center of life is in Israel.
The Israeli Tax Ordinance (as amended by Amendment Law No. 132 of 2002), states that in order to determine the center of life of an individual,
consideration will be given to the individual’s family, economic and social connections, including: (i) place of permanent residence; (ii) place of residential
dwelling of the individual and the individual’s immediate family; (iii) place of the individual’s regular or permanent occupation or the place of his or her
permanent employment; (iv) place of the individual’s active and substantial economic interests; (v) place of the individual’s activities in organizations,
associations and other institutions. The center of life of an individual will be presumed to be in Israel if: (i) the individual was present in Israel for 183 days or
more in the tax year; or (ii) the individual was present in Israel for 30 days or more in the tax year, and the total period of the individual’s presence in Israel in
that tax year and the two previous tax years is 425 days or more. Such presumption may be rebutted either by the individual or by the assessing officer.
Payers of dividends on our ordinary shares, including the Israeli stockbroker effectuating the transaction, or the financial institution through which
the securities are held, are generally required, subject to any of the foregoing exemptions, reduced tax rates and the demonstration of a shareholder regarding
his, her or its foreign residency, to withhold tax upon the distribution of dividend at the rate of 25%, so long as the shares are registered with a nominee
company.
Taxation of Israeli Resident Corporations on Payment of Dividends
Israeli resident corporations are generally exempt from Israeli corporate income tax with respect to dividends paid on ordinary shares held by such
Israeli resident corporations as long as the profits out of which the dividends were paid were derived in Israel.
Capital Gains Taxes Applicable to Israeli Resident Shareholders
The income tax rate applicable to real capital gains derived by an Israeli individual resident from the sale of shares that were purchased after January
1, 2012, whether listed on a stock exchange or not, is 25%. However, if such shareholder is considered a Substantial Shareholder at the time of sale or at any
time during the preceding 12 month period, such gain will be taxed at the rate of 30%.
Moreover, capital gains derived by a shareholder who is a dealer or trader in securities, or to whom such income is otherwise taxable as ordinary
business income, are taxed in Israel at ordinary income rates (corporate tax rate for corporations and up to 50% for individuals, including Excess Tax as
detailed below).
128
At the sale of securities traded on a stock exchange a detailed return, including a computation of the tax due, must be filed and an advanced payment
must be paid on January 31 and June 30 of every tax year in respect of sales of securities made within the previous six months. However, if all tax due was
withheld at source according to applicable provisions of the Ordinance and regulations promulgated thereunder the aforementioned return need not be filed
and no advance payment must be paid. Capital gain is also reportable on the annual income tax return.
Taxation of Non-Israeli Shareholders on Receipt of Dividends
Non-Israeli residents are generally subject to Israeli income tax on the receipt of dividends paid on our ordinary shares at the rate of 25% (or 30% for
individuals, if such person is a Substantial Shareholder at the time he or she receives the dividend or on any date in the 12 months preceding such date),
unless a different rate is provided under an applicable tax treaty between Israel and the shareholder’s country of residence.
A non-Israeli resident who has dividend income derived from or accrued in Israel, from which the full amount of tax was withheld at source, is
generally exempt from the duty to file tax returns in Israel in respect of such income; provided that (i) such income was not derived from a business
conducted in Israel by the taxpayer and (ii) the taxpayer has no other taxable sources of income in Israel.
For example, under the Convention Between the Government of the United States of America and the Government of Israel with Respect to Taxes
on Income, as amended, or the U.S.-Israel Tax Treaty, Israeli withholding tax on dividends paid to a U.S. resident for treaty purposes may not, in general,
exceed 25%, or 15% in the case of dividends paid out of the profits of an Approved Enterprise (as such term is defined in the Investment Law), subject to
certain conditions. Where the recipient is a U.S. corporation owning 10% or more of the voting shares of the paying corporation during the part of the paying
corporation’s taxable year which precedes the date of payment of the dividend and during the entirety of its prior taxable year (if any) and the dividend is not
paid from the profits of a Benefited Enterprise, the Israeli tax withheld may not exceed 12.5%, subject to certain conditions.
Payers of dividends on our ordinary shares, including the Israeli stockbroker effectuating the transaction, or the financial institution through which
the securities are held, are generally required, subject to any of the foregoing exemptions, reduced tax rates and the demonstration of a shareholder regarding
his, her or its foreign residency, to withhold tax upon the distribution of dividend at the rate of 25%, so long as the shares are registered with a nominee
company.
Capital Gains Income Taxes Applicable to Non-Israeli Shareholders
Non-Israeli resident shareholders are generally exempt from Israeli capital gains tax on any gains derived from the sale, exchange or disposition of
our ordinary shares, provided that such shareholders did not acquire their shares prior to January 1, 2009 and such gains were not derived from a permanent
business or business activity of such shareholders in Israel. However, non-Israeli corporations will not be entitled to the foregoing exemptions if an Israeli
resident (i) has a controlling interest of more than 25% in such non-Israeli corporation or (ii) is the beneficiary of or is entitled to 25% or more of the revenues
or profits of such non-Israeli corporation, whether directly or indirectly.
In addition, a sale of securities by a non-Israeli resident may be exempt from Israeli capital gains tax under the provisions of an applicable tax treaty.
For example, under the U.S.-Israel Tax Treaty, the sale, exchange or disposition of our ordinary shares by a shareholder who is a U.S. resident (for purposes
of the U.S.-Israel Tax Treaty) holding the ordinary shares as a capital asset and is entitled to claim the benefits afforded to such a resident by the U.S.-Israel
Tax Treaty, or a Treaty U.S. Resident, is generally exempt from Israeli capital gains tax unless: (i) such Treaty U.S. Resident is an individual and was present
in Israel for 183 days or more during the relevant taxable year; (ii) such Treaty U.S. Resident holds, directly or indirectly, shares representing 10% or more of
our voting power of the Company during any part of the 12 month period preceding such sale, exchange or disposition, subject to certain conditions; or (iii)
the capital gains arising from such sale, exchange or disposition are attributable to a permanent establishment of the Treaty U.S. Resident located in Israel,
subject to certain conditions. In any such case, the sale, exchange or disposition of our ordinary shares would be subject to Israeli tax, to the extent applicable.
However, under the U.S.-Israel Tax Treaty, such Treaty U.S. Resident would be permitted to claim a credit for such taxes against U.S. federal income tax
imposed on any gain from such sale, exchange or disposition, under the circumstances and subject to the limitations specified in the U.S.-Israel Income Tax
Treaty.
129
Regardless of whether shareholders may be liable for Israeli income tax on the sale of our ordinary shares, the payment of the consideration may be
subject to withholding of Israeli tax at the source. Accordingly, shareholders may be required to demonstrate that they are exempt from tax on their capital
gains in order to avoid withholding at source at the time of sale.
Excess Tax
Individuals who are subject to tax in Israel are also subject to an additional tax at a rate of 2% as of January 2016 (increased to 3% beginning in 2017
and thereafter) on annual income exceeding a certain threshold (NIS 810,720 for 2016, and NIS 640,000 for 2017 and thereafter, which amount is linked to
the annual change in the Israeli consumer price index), including, but not limited to, dividends, interest and capital gains.
Estate and Gift Tax
Israeli law presently does not impose estate or gift taxes.
Pre-Ruling Regarding a Reorganization of Our Corporate Structure
In connection with the Reorganization, as detailed under “Item 4. Information on the Company—Historical Background and Corporate Structure”
above, we obtained a pre-ruling from the Israeli Tax Authority. The Tax Pre-Ruling confirms that the transfer of shares and assets resulting in the Company as
the parent company and 100% equity-owner of GRD, which holds all the Group’s intellectual property, including the Company’s patent portfolio, GIL and
GTTI, is not taxable pursuant to the provisions of the Israeli Tax Ordinance as long as certain requirements are met. Pursuant to the Tax Pre-Ruling, certain
restrictions under the Israeli tax laws were applied to the Company and its subsidiaries, as well as to those shareholders and option holders and other holders
of rights in the share capital of the Company (on a diluted basis), who participated in the Reorganization and held such rights immediately after the
consummation of the Reorganization, or the Rights Holders. In this section, each of the terms “Rights” and/or “share capital (on a diluted basis)” includes
shares, options to purchase shares and any other “right” in “a body of persons” as such term is defined in the Israeli Tax Ordinance. These restrictions
generally restrict these entities and Rights Holders from making any disposition of their Rights in the transferred assets and shares for a two year period
following the consummation of the Reorganization, which ended in February 2016, or the Restriction Period. During the Restriction Period, these restrictions
included the following:
·
·
·
·
·
Sale or otherwise disposition of our intellectual property, other than out-licensing in the ordinary course of business, was not permitted;
the Rights Holders immediately following the Reorganization must not have changed. Notwithstanding this restriction, so long as the
aggregate holdings of the Rights Holders, collectively, was 51% or more of the total share capital of the Company at any time during the
Restriction Period, certain changes in the holding percentages of the Rights Holders might have been permitted during the Restriction
Period under the Israeli Tax Ordinance and guidelines issued by the Israeli Tax Authorities;
the Rights Holders may not have sold or otherwise transfer or dispose of more than 10% of their respective Rights, subject to the
exemptions and relief detailed below;
Sale or otherwise transfer or disposition of any of our shares in GTTI, GHI or GIL, was not permitted; and
during the two tax years following the end of the year in which the Reorganization was completed we may not have offset losses (whether
business or capital losses) incurred in the year in which the Reorganization was completed or in the years preceded that year up to the fair
market value of the transferred asset.
In addition, no deduction for tax purposes is allowed in relation to the Reorganization.
130
If during the Restriction Period, we or the Rights Holders committed a violation, the transfer of shares or other rights and/or assets in connection
with the Reorganization will become subject to taxation based on the greater of the transferred assets’ fair market value on the day of such violation or taxes
that, but for the Tax Pre-Ruling, would be payable in connection with the transfer of such assets and shares at the time of the Reorganization linked to the
Israeli consumer price index linkage differentials and interest from the day of the actual transfer of such assets and shares until the day of payment of such
taxes, unless the Israeli Tax Authority is satisfied that such violation was a result of special circumstances beyond our control. The Restriction Period ended
on February 2016, and to our knowledge, neither we nor any of the Right Holders has committed a violation during the Restriction Period pursuant to the
terms and conditions of the Tax Pre Ruling.
Certain U.S. Federal Income Tax Considerations
The following is a general summary of certain material U.S. federal income tax consequences relating to the purchase, ownership and disposition of
our ordinary shares by U.S. Holders (as defined below). This summary is based on the Internal Revenue Code, or the Code, the regulations of the U.S.
Department of the Treasury issued pursuant to the Code, or the Treasury Regulations, the income tax treaty between the United States and Israel, or the U.S.-
Israel Tax Treaty, and administrative and judicial interpretations thereof, all as in effect on the date hereof and all of which are subject to change, possibly
with retroactive effect, or to different interpretation. No ruling has been sought from the IRS with respect to any U.S. federal income tax consequences
described below, and there can be no assurance that the IRS or a court will not take a contrary position. This summary is no substitute for consultation by
prospective investors with their own tax advisors and does not constitute tax advice. This summary does not address all of the tax considerations that may be
relevant to specific U.S. Holders in light of their particular circumstances or to U.S. Holders subject to special treatment under U.S. federal income tax law
(including, without limitation, banks, insurance companies, tax-exempt entities, retirement plans, regulated investment companies, partnerships, dealers in
securities, brokers, real estate investment trusts, certain former citizens or residents of the United States, persons who acquire our ordinary shares as part of a
straddle, hedge, conversion transaction or other integrated investment, persons who acquire our ordinary shares through the exercise or cancellation of
employee stock options or otherwise as compensation for their services, persons that have a “functional currency” other than the U.S. dollar, persons that own
(or are deemed to own, indirectly, or by attribution) 10% or more of our shares, or persons that mark their securities to market for U.S. federal income tax
purposes). This summary does not address any U.S. state or local or non-U.S. tax considerations, any U.S. federal estate, gift or alternative minimum tax
considerations, or any U.S. federal tax consequences other than U.S. federal income tax consequences.
As used in this summary, the term “U.S. Holder” means a beneficial owner of our ordinary shares that is, for U.S. federal income tax purposes, (i) an
individual citizen or resident of the United States, (ii) a corporation, or other entity taxable as a corporation for U.S. federal income tax purposes, created or
organized in or under the laws of the United States, any state thereof, or the District of Columbia, (iii) an estate the income of which is subject to U.S. federal
income tax regardless of its source, or (iv) a trust with respect to which a court within the United States is able to exercise primary supervision over its
administration and one or more U.S. persons have the authority to control all of its substantial decisions, or that has a valid election in effect under applicable
Treasury Regulations to be treated as a “United States person.”
If an entity treated as a partnership for U.S. federal income tax purposes holds our ordinary shares, the tax treatment of such entity treated as a
partnership and each person treated as a partner thereof generally will depend upon the status and activities of the entity and such person. A holder that is
treated as a partnership for U.S. federal income tax purposes should consult its own tax advisor regarding the U.S. federal income tax considerations
applicable to it and its partners of the purchase, ownership and disposition of our ordinary shares.
Prospective investors should be aware that this summary does not address the tax consequences to investors who are not U.S. Holders. Prospective
investors should consult their own tax advisors as to the particular tax considerations applicable to them relating to the purchase, ownership and disposition of
our ordinary shares, including the applicability of U.S. federal, state and local tax laws and non-U.S. tax laws.
131
Taxation of U.S. Holders
Distributions. Subject to the discussion below under “Passive Foreign Investment Company,” a U.S. Holder that receives a distribution with respect
to an ordinary share generally will be required to include the amount of such distribution in gross income as a dividend (without reduction for any Israeli tax
withheld from such distribution) when actually or constructively received to the extent of the U.S. Holder’s pro rata share of our current and/or accumulated
earnings and profits (as determined under U.S. federal income tax principles). Any distributions in excess of our earnings and profits will be applied against
and will reduce (but not below zero) the U.S. Holder’s tax basis in its ordinary shares, and, to the extent they exceed that tax basis, will be treated as gain
from the sale or exchange of our ordinary shares. We do not intend to calculate our earnings and profits under U.S. federal income tax principles. Therefore, a
U.S. Holder should expect that a distribution will be treated as a dividend even if that distribution would otherwise be treated as a non-taxable return of
capital or as capital gain under the rules described above.
As noted above, we do not anticipate paying any cash dividends in the foreseeable future. If we were to pay dividends, we expect to pay such
dividends in NIS. A dividend paid in NIS, including the amount of any Israeli taxes withheld, will be includible in a U.S. Holder’s income at a U.S. dollar
amount calculated by reference to the exchange rate in effect on the date such dividend is received, regardless of whether the payment is in fact converted into
U.S. dollars. If the dividend is converted to U.S. dollars on the date of receipt, a U.S. Holder generally will not recognize a foreign currency gain or loss.
However, if the U.S. Holder converts the NIS into U.S. dollars on a later date, the U.S. Holder must include, in computing its income, any gain or loss
resulting from any exchange rate fluctuations. The gain or loss will be equal to the difference between (i) the U.S. dollar value of the amount included in
income when the dividend was received and (ii) the amount received on the conversion of the NIS into U.S. dollars. Such gain or loss generally will be
ordinary income or loss and will be U.S. source income or loss for U.S. foreign tax credit purposes. U.S. Holders should consult their own tax advisors
regarding the tax consequences to them if we pay dividends in NIS or any other non-U.S. currency.
Subject to certain significant conditions and limitations, any Israeli taxes paid on or withheld from distributions from us and not refundable to a U.S.
Holder may be credited against the U.S. Holder’s U.S. federal income tax liability or, alternatively, may be deducted from the U.S. Holder’s taxable income.
The election to deduct, rather than credit, foreign taxes, is made on a year-by-year basis and applies to all foreign taxes paid by a U.S. Holder or withheld
from a U.S. Holder that year. Dividends paid on the ordinary shares generally will constitute income from sources outside the United States and be
categorized as “passive category income” or, in the case of some U.S. Holders, as “general category income” for U.S. foreign tax credit purposes. Because the
rules governing foreign tax credits are complex, U.S. Holders should consult their own tax advisors regarding the availability of foreign tax credits in their
particular circumstances.
Dividends paid on the ordinary shares will not be eligible for the “dividends-received” deduction generally allowed to corporate U.S. Holders with
respect to dividends received from U.S. corporations.
Certain distributions treated as dividends that are received by an individual U.S. Holder from a “qualified foreign corporation” generally qualify for a
20% reduced maximum tax rate so long as certain holding period and other requirements are met. A non-U.S. corporation (other than a corporation that is
treated as a PFIC for the taxable year in which the dividend is paid or the preceding taxable year) generally will be considered to be a qualified foreign
corporation (i) if it is eligible for the benefits of a comprehensive tax treaty with the United States which the Secretary of Treasury of the United States
determines is satisfactory for purposes of this provision and which includes an exchange of information program, or (ii) with respect to any dividend it pays
on stock which is readily tradable on an established securities market in the United States. Dividends paid by us in a taxable year in which we are not a PFIC
and with respect to which we were not a PFIC in the preceding taxable year are expected to be eligible for the 20% reduced maximum tax rate, although we
can offer no assurances in this regard. However, any dividend paid by us in a taxable year in which we are a PFIC or were a PFIC in the preceding taxable
year will be subject to tax at regular ordinary income rates (along with any applicable additional PFIC tax liability, as discussed below). As discussed below
under “Passive Foreign Investment Company,” we have determined that we are currently not a PFIC, however, there is no assurance that we will not be
considered a PFIC in the future.
The additional 3.8% “net investment income tax” (described below) may apply to dividends received by certain U.S. Holders who meet certain
modified adjusted gross income thresholds.
132
Sale, Exchange or Other Taxable Disposition of Ordinary Shares. Subject to the discussion under “Passive Foreign Investment Company” below, a
U.S. Holder generally will recognize capital gain or loss upon the sale, exchange, or other taxable disposition of our ordinary shares in an amount equal to the
difference between the amount realized on the sale, exchange, or other taxable disposition and the U.S. Holder’s adjusted tax basis (determined under U.S.
federal income tax rules) in such ordinary shares. This capital gain or loss will be long-term capital gain or loss if the U.S. Holder’s holding period in our
ordinary shares exceeds one year. Preferential tax rates for long-term capital gain (currently, with a maximum rate of 20%) will apply to individual U.S.
Holders. The deductibility of capital losses is subject to limitations. The gain or loss generally will be income or loss from sources within the United States
for U.S. foreign tax credit purposes, subject to certain possible exceptions under the U.S.-Israel Tax Treaty. The additional 3.8% “net investment income tax”
(described below) may apply to gains recognized upon the sale, exchange, or other taxable disposition of our ordinary shares by certain U.S. Holders who
meet certain modified adjusted gross income thresholds.
U.S. Holders should consult their own tax advisors regarding the U.S. federal income tax consequences of receiving currency other than U.S. dollars
upon the disposition of their ordinary shares.
Passive Foreign Investment Company. In general, a non-U.S. corporation will be treated as a PFIC for U.S. federal income tax purposes in any
taxable year in which either (i) at least 75% of its gross income is “passive income,” or (ii) on average at least 50% of its assets by value produce passive
income or are held for the production of passive income. Passive income for this purpose generally includes, among other things, certain dividends, interest,
royalties, rents and gains from commodities and securities transactions and from the sale or exchange of property that gives rise to passive income. Passive
income also includes amounts derived by reason of the temporary investment of funds, including those raised in a public offering. Assets that produce or are
held for the production of passive income include cash, even if held as working capital or raised in a public offering, marketable securities and other assets
that may produce passive income. In determining whether a non-U.S. corporation is a PFIC, a proportionate share of the income and assets of each
corporation in which it owns, directly or indirectly, at least a 25% interest (by value) is taken into account.
A foreign corporation’s PFIC status is an annual determination that is based on tests that are factual in nature, and our status for any year will depend
on our income, assets, and activities for such year. [Based upon our review of our financial data, we have determined that we have determined that we are
currently not a PFIC, however, there is no assurance that we will continue not to be a PFIC in the future
U.S. Holders should be aware of certain tax consequences of investing directly or indirectly in us due to our classification as a PFIC. A U.S. Holder
is subject to different rules depending on whether the U.S. Holder makes an election to treat us as a “qualified electing fund,” referred to herein as a “QEF
election,” for the first taxable year that the U.S. Holder holds ordinary shares, makes a “mark-to-market” election with respect to the ordinary shares, or
makes neither election. An election to treat us as a QEF will not be available if we do not provide the information necessary to make such an election. It is not
expected that a U.S. Holder will be able to make a QEF election because we do not intend to provide U.S. Holders with the information necessary to make a
QEF election.
QEF Election. One way in which certain of the adverse consequences of PFIC status can be mitigated is for a U.S. Holder make a QEF election.
Generally, a shareholder making the QEF election is required for each taxable year to include in income a pro rata share of the ordinary earnings and net
capital gain of the QEF, subject to a separate election to defer payment of taxes, which deferral is subject to an interest charge. An election to treat us as a
QEF will not be available if we do not provide the information necessary to make such an election. It is not expected that a U.S. Holder will be able to make a
QEF election because we do not intend to provide U.S. Holders with the information necessary to make a QEF election.
Mark-to-Market Election. Alternatively, if our ordinary shares are treated as “marketable stock,” a U.S. Holder would be allowed to make a “mark-
to-market” election with respect to our ordinary shares, provided the U.S. Holder completes and files IRS Form 8621 in accordance with the relevant
instructions and related Treasury Regulations. If that election is made, the U.S. Holder generally would include as ordinary income in each taxable year the
excess, if any, of the fair market value of our ordinary shares at the end of the taxable year over such holder’s adjusted tax basis in such ordinary shares. The
U.S. Holder would also be permitted an ordinary loss in respect of the excess, if any, of the U.S. Holder’s adjusted tax basis in our ordinary shares over their
fair market value at the end of the taxable year, but only to the extent of the net amount previously included in income as a result of the mark-to- market
election. A U.S. Holder’s tax basis in our ordinary shares would be adjusted to reflect any such income or loss amount. Gain realized on the sale, exchange or
other disposition of our ordinary shares would be treated as ordinary income, and any loss realized on the sale, exchange or other disposition of our ordinary
shares would be treated as ordinary loss to the extent that such loss does not exceed the net mark-to-market gains previously included in income by the U.S.
Holder, and any loss in excess of such amount will be treated as capital loss. Amounts treated as ordinary income will not be eligible for the favorable tax
rates applicable to qualified dividend income or long-term capital gains.
133
Generally, stock will be considered marketable stock if it is “regularly traded” on a “qualified exchange” within the meaning of applicable Treasury
Regulations. A class of stock is regularly traded on an exchange during any calendar year during which such class of stock is traded, other than in de minimis
quantities, on at least 15 days during each calendar quarter. To be marketable stock, our ordinary shares must be regularly traded on a qualifying exchange (i)
in the United States that is registered with the SEC or a national market system established pursuant to the Exchange Act or (ii) outside the United States that
is properly regulated and meets certain trading, listing, financial disclosure and other requirements. Our ordinary shares are expected to constitute “marketable
stock” as long as they remain listed on the Nasdaq Capital Market and are regularly traded.
A mark-to-market election will not apply to our ordinary shares held by a U.S. Holder for any taxable year during which we are not a PFIC, but will
remain in effect with respect to any subsequent taxable year in which we become a PFIC. Such election will not apply to any PFIC subsidiary that we own.
Each U.S. Holder is encouraged to consult its own tax advisor with respect to the availability and tax consequences of a mark-to-market election with respect
to our ordinary shares.
Each U.S. Holder should consult its own tax adviser with respect to the applicability of the “net investment income tax” (discussed below) where a
mark-to-market election is in effect.
Default PFIC Rules. A U.S. Holder who does not make a timely QEF election (we do not currently intend to prepare or provide the information that
would enable a U.S. Holder to make a QEF election) or a mark-to-market election, referred to in this summary as a “Non-Electing U.S. Holder,” will be
subject to special rules with respect to (i) any “excess distribution” (generally, the portion of any distributions received by the Non-Electing U.S. Holder on
the ordinary shares in a taxable year in excess of 125% of the average annual distributions received by the Non-Electing U.S. Holder in the three preceding
taxable years, or, if shorter, the Non-Electing U.S. Holder’s holding period for the ordinary shares), and (ii) any gain realized on the sale or other disposition
of such ordinary shares. Under these rules:
·
·
·
the excess distribution or gain would be allocated ratably over the Non-Electing U.S. Holder’s holding period for such ordinary shares;
the amount allocated to the current taxable year and any year prior to us becoming a PFIC would be taxed as ordinary income; and
the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of
taxpayer for that year, and an interest charge for the deemed deferral benefit would be imposed with respect to the resulting tax attributable
to each such other taxable year.
If a Non-Electing U.S. Holder who is an individual dies while owning our ordinary shares, the Non-Electing U.S. Holder’s successor would be
ineligible to receive a step-up in tax basis of such ordinary shares. Non-Electing U.S. Holders should consult their tax advisors regarding the application of
the “net investment income tax” (described below) to their specific situation.
To the extent a distribution on our ordinary shares does not constitute an excess distribution to a Non-Electing U.S. Holder, such Non-Electing U.S.
Holder generally will be required to include the amount of such distribution in gross income as a dividend to the extent of our current or accumulated earnings
and profits (as determined for U.S. federal income tax purposes) that are not allocated to excess distributions. The tax consequences of such distributions are
discussed above under “Taxation of U.S. Holders—Distributions.” Each U.S. Holder is encouraged to consult its own tax advisor with respect to the
appropriate U.S. federal income tax treatment of any distribution on our ordinary shares.
134
If we are treated as a PFIC for any taxable year during the holding period of a Non-Electing U.S. Holder, we will continue to be treated as a PFIC for
all succeeding years during which the Non-Electing U.S. Holder is treated as a direct or indirect Non-Electing U.S. Holder even if we are not a PFIC for such
years. A U.S. Holder is encouraged to consult its tax advisor with respect to any available elections that may be applicable in such a situation, including the
“deemed sale” election of Code Section 1298(b)(1) (which will be taxed under the adverse tax rules described above).
We may invest in the equity of foreign corporations that are PFICs or may own subsidiaries that own PFICs. If we are classified as a PFIC, under
attribution rules, U.S. Holders will be subject to the PFIC rules with respect to their indirect ownership interests in such PFICs, such that a disposition of the
ordinary shares of the PFIC or receipt by us of a distribution from the PFIC generally will be treated as a deemed disposition of such ordinary shares or the
deemed receipt of such distribution by the U.S. Holder, subject to taxation under the PFIC rules. There can be no assurance that a U.S. Holder will be able to
make a QEF election or a mark-to-market election with respect to PFICs in which we invest. Each U.S. Holder is encouraged to consult its own tax advisor
with respect to tax consequences of an investment by us in a corporation that is a PFIC.
In addition, U.S. Holders should consult their tax advisors regarding the IRS information reporting and filing obligations that may arise as a result of
the ownership of ordinary shares in a PFIC, including IRS Form 8621, Information Return by a Shareholder of a Passive Foreign Investment Company or
Qualified Electing Fund.
The U.S. federal income tax rules relating to PFICs, QEF elections, and mark-to market elections are complex. U.S. Holders are urged to
consult their own tax advisors with respect to the purchase, ownership and disposition of our ordinary shares, any elections available with respect to
such ordinary shares and the IRS information reporting obligations with respect to the purchase, ownership and disposition of our ordinary shares.
Certain Reporting Requirements
Certain U.S. Holders are required to file IRS Form 926, Return by U.S. Transferor of Property to a Foreign Corporation, and certain U.S. Holders
may be required to file IRS Form 5471, Information Return of U.S. Persons With Respect to Certain Foreign Corporations, reporting transfers of cash or other
property to us and information relating to the U.S. Holder and us. Substantial penalties may be imposed upon a U.S. Holder that fails to comply. See the
discussion regarding Form 8621, Information Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund, above.
In addition, certain U.S. Holders must report information on IRS Form 8938, Statement of Specified Foreign Financial Assets, with respect to their
investments in certain “foreign financial assets,” which would include an investment in our ordinary shares, if the aggregate value of all of those assets
exceeds $50,000 on the last day of the taxable year (and in some circumstances, a higher threshold). This reporting requirement applies to individuals and
certain U.S. entities.
U.S. Holders who fail to report required information could become subject to substantial penalties. U.S. Holders should consult their tax advisors
regarding the possible implications of these reporting requirements arising from their investment in our ordinary shares.
Backup Withholding Tax and Information Reporting Requirements
Generally, information reporting requirements will apply to distributions on our ordinary shares or proceeds on the disposition of our ordinary shares
paid within the United States (and, in certain cases, outside the United States) to U.S. Holders other than certain exempt recipients, such as corporations.
Furthermore, backup withholding (currently at 28%) may apply to such amounts if the U.S. Holder fails to (i) provide a correct taxpayer identification
number, (ii) report interest and dividends required to be shown on its U.S. federal income tax return, or (iii) make other appropriate certifications in the
required manner. U.S. Holders who are required to establish their exempt status generally must provide such certification on IRS Form W-9.
Backup withholding is not an additional tax. Amounts withheld as backup withholding from a payment may be credited against a U.S. Holder’s U.S.
federal income tax liability and such U.S. Holder may obtain a refund of any excess amounts withheld by filing the appropriate claim for refund with the IRS
and furnishing any required information in a timely manner.
135
Medicare Tax on Investment Income
Certain U.S. persons, including individuals, estates and trusts, will be subject to an additional 3.8% Medicare tax, or “net investment income tax,” on
unearned income. For individuals, the additional net investment income tax applies to the lesser of (i) “net investment income” or (ii) the excess of “modified
adjusted gross income” over $200,000 ($250,000 if married and filing jointly or $125,000 if married and filing separately). “Net investment income”
generally equals the taxpayer’s gross investment income reduced by the deductions that are allocable to such income. Investment income generally includes,
among other things, passive income such as interest, dividends, annuities, royalties, rents, and capital gains. U.S. Holders are urged to consult their own tax
advisors regarding the implications of the additional net investment income tax resulting from their ownership and disposition of our ordinary shares.
THE DISCUSSION ABOVE IS A GENERAL SUMMARY. IT DOES NOT COVER ALL TAX MATTERS THAT MAY BE OF
IMPORTANCE TO A PROSPECTIVE INVESTOR. EACH PROSPECTIVE INVESTOR IS URGED TO CONSULT ITS OWN TAX ADVISOR
ABOUT THE TAX CONSEQUENCES RELATING TO THE PURCHASE, OWNERSHIP AND DISPOSITION OF OUR ORDINARY SHARES
IN LIGHT OF THE INVESTOR’S OWN CIRCUMSTANCES, INCLUDING THE CONSEQUENCES OF ANY PROPOSED CHANGE IN
APPLICABLE LAWS.
F. Dividends and Paying Agents.
Not applicable.
G. Statements by Experts.
Not applicable.
H. Documents on Display.
You may read and copy this annual report, including the related exhibits and schedules, and any document we file with the SEC without charge at the
SEC’s public reference room at 100 F Street, N.E., Room 1580, Washington, DC 20549. You may also obtain copies of the documents at prescribed rates by
writing to the Public Reference Section of the SEC at 100 F Street, N.E., Room 1580, Washington, DC 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference room. The SEC also maintains an Internet website that contains reports and other information regarding issuers
that file electronically with the SEC. Our filings with the SEC are also available to the public through the SEC’s website at http://www.sec.gov.
As a “foreign private issuer,” we are subject to the information reporting requirements of the Exchange Act that are applicable to foreign private
issuers, and under those requirements file reports with the SEC. Those other reports or other information may be inspected without charge at the locations
described above. As a “foreign private issuer,” we are exempt from the rules under the Exchange Act related to the furnishing and content of proxy
statements, and our officers, directors and principal shareholders will be exempt from the reporting and “short-swing” profit recovery provisions contained in
Section 16 of the Exchange Act with respect to their purchases and sales of ordinary shares. Furthermore, as a “foreign private issuer,” we are also not subject
to the requirements of Regulation FD (Fair Disclosure) promulgated under the Exchange Act.
We maintain a corporate website at http://www.galmedpharma.com. Information contained on, or that can be accessed through, our website is not
incorporated by reference into this annual report and does not constitute a part of this annual report. We have included our website address in this annual
report solely as an inactive textual reference.
I. Subsidiary Information.
Not applicable.
136
ITEM 11. Quantitative and Qualitative Disclosures About Market Risk.
Quantitative and Qualitative Disclosure About Market Risk
We are exposed to market risks in the ordinary course of our business. Market risk represents the risk of loss that may impact our financial position,
results of operations or cash flows due to adverse changes in financial market prices and rates, including interest rates and foreign exchange rates, of financial
instruments.
Foreign Currency Exchange Risk
Our foreign currency exposures give rise to market risk associated with exchange rate movements of the Euro and NIS mainly against the U.S. dollar
because a large portion of our expenses are denominated in Euros and NIS. Our Euro expenses consist principally of payments made to sub-contractors and
consultants for non-clinical studies, clinical trials and other research and development activities. Our NIS expenses consist principally of payments made to
employees, subcontractors and consultants for non-clinical studies, clinical trials, professional services, other research and development activities and general
and administrative activities. We anticipate that a large portion of our expenses will continue to be denominated in currencies other than the U.S. dollar. Our
financial position, results of operations and cash flow are subject to fluctuations due to changes in foreign currency exchange rates. Our results of operations
and cash flow are, therefore, subject to fluctuations due to changes in foreign currency exchange rates and may be adversely affected in the future due to
changes in foreign exchange rates. Approximately 13% of our expenses are denominated in Euros. Changes of 5% and 10% in the U.S. dollar to Euro
exchange rate will increase/decrease our operation expenses by 0.75% and 1.3%, respectively. Approximately 35% of our expenses are denominated in NIS.
Changes of 5% and 10% in the U.S. dollar to NIS exchange rate will increase/decrease our operation expenses by 1.75% and 3.5%, respectively. To date,
fluctuations in the exchange rates have not materially affected our results of operations or financial condition for the periods under review.
To date, we have not engaged in hedging our foreign currency exchange risk. In the future, we may enter into formal currency hedging transactions
to decrease the risk of financial exposure from fluctuations in the exchange rates of our principal operating currencies. These measures, however, may not
adequately protect us from the material adverse effects of such fluctuations.
Interest Rate Risk
Our primary exposure to market risk is interest income sensitivity, which is affected by changes in the general level of U.S. interest rates. We
currently do not hedge interest rate exposure. Because of the short-term maturities of our cash equivalents and investment securities, we do not believe that an
increase in market rates would have any significant impact on the realized value of our investment securities. If a 10% change in interest rates were to have
occurred on December 31, 2016, this change would not have had a material effect on the fair value of our investment portfolio as of that date.
Liquidity
We do not believe that our cash and cash equivalents and available for sale investments have significant risk of default or illiquidity. While we
believe our cash, cash equivalents and available for sale investments do not contain excessive risk, we cannot provide absolute assurance that in the future our
investments will not be subject to adverse changes in market value. In addition, we maintain significant amounts of cash and cash equivalents at one or more
financial institutions that are in excess of federally insured limits.
ITEM 12. Description of Securities Other Than Equity Securities.
A. Debt Securities.
Not applicable.
137
B. Warrants and Rights.
Not applicable.
C. Other Securities.
Not applicable.
D. American Depositary Shares.
Not applicable.
ITEM 13. Defaults, Dividend Arrearages and Delinquencies.
Not applicable.
ITEM 14. Material Modifications to the Rights of Security Holders and Use of Proceeds.
PART II
A. Not applicable.
B. Not applicable.
C. Not applicable.
D. Not applicable.
E. Use of Proceeds.
On March 18, 2014, we completed our initial public offering of 3,263,010 ordinary shares at a public offering price of $13.50 per share, which
included 425,610 ordinary shares issued upon the exercise in full of the underwriters’ option to purchase additional ordinary shares to cover over-allotments,
for aggregate gross proceeds of approximately $44.1 million. Maxim Group LLC, or Maxim, acted as sole book-running manager of the offering, and MLV &
Co. and Feltl and Company acted as co-managers of the offering. We also issued to Maxim, at the closing of the offering, warrants to purchase that number of
our ordinary shares equal to up to 2% of the aggregate number of shares sold in the offering. The warrants, which provided for cashless exercise, “piggyback”
registration rights for three years from the effective date of the registration statement and customary anti-dilution provisions (for share dividends, splits and
recapitalizations and the like) consistent with FINRA Rule 5110, expired on March 12, 2017 unexercised. The offer and sale of all of the shares in the offering
were registered under the Securities Act pursuant to a registration statement on Form F-1, which was declared effective on March 12, 2014 (File No. 333-
193792), and a registration statement on Form F-1 filed pursuant to Rule 462(b) of the Securities Act (File No. 333-194526).
We received aggregate net proceeds from the offering of approximately $39.9 million, after deducting approximately $3.1 million of underwriting
discounts and commissions and approximately $1.1 million of estimated offering expenses directly payable by us. None of the underwriting discounts and
commissions or other offering expenses were incurred or paid to our directors or officers or their associates or to persons owning ten percent or more of our
ordinary shares or to any of our affiliates.
138
On May 31, 2016, we entered into the Sales Agreement with Cantor to issue and sell, from time to time through Cantor and pursuant to a shelf
registration statement on Form F-3 (Registration No. 333-203133), ordinary shares having an aggregate offering price of up to $16 million. Under the ATM
Offering, the Company may sell ordinary shares by any method permitted by law and deemed to be an “at-the-market” offering, as defined in Rule 415
promulgated under the Securities Act. The Company is not obligated to make any sales under the Sales Agreement. The Company intends to use the net
proceeds raised through any ATM Offering sales for (i) further clinical and non-clinical development of existing and new programs, (ii) business development
related activities and (iii) general corporate purposes. As of March 16, 2017, the latest practicable date for inclusion in this annual report, the Company had
sold 933,160 ordinary shares through its ATM Offering for total proceeds of approximately $4.5 million, net of issuance expenses. The Company paid Cantor
a sales commission equal to 3% of the aggregate gross proceeds, plus it reimbursed Cantor certain expenses in connection with entering into the ATM
Offering in the amount of $50 thousand. The offering of ordinary shares pursuant to the ATM Offering will terminate upon the earliest of (i) the sale of all of
the ordinary shares subject to the Sales Agreement, (ii) the termination of the Sales Agreement by Cantor or the Company, as permitted therein, or (iii) the
third anniversary of the date of the ATM Offering.
As of December 31, 2016, the net proceeds from our initial public offering and our ATM Offering were held in cash and cash equivalents and
marketable securities. We have deployed the net proceeds of our initial public offering into a variety of additional capital preservation investments, including
short-term, investment grade, interest-bearing instruments, such as corporate and municipal debt securities.
As of December 31, 2016, we used the net proceeds from the initial public offering and our ATM Offering for the following purposes and amounts:
•
•
•
Research and development costs of $27.7 million, including chemistry and formulation studies, non-clinical, regulatory, clinical operations expenses
and personnel and benefit costs;
General and administrative costs of $6.5 million, which include personnel and benefit costs as well as costs of operations and professional services;
and
Property and equipment costs of $953 thousands, including medical equipment and other fixed assets.
We have no current understandings, commitments or agreements with respect to any material acquisition of or investment in any technologies,
products or companies.
ITEM 15. Controls and Procedures.
Disclosure Controls and Procedures
We performed an evaluation of the effectiveness of our disclosure controls and procedures that are designed to ensure that information required to be
disclosed in this annual report and filed with the SEC is recorded, processed, summarized and reported timely within the time period specified in the SEC’s
rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be
disclosed by an issuer in the reports that it files or submits under the Exchange Act, is accumulated and communicated to the issuer’s management, including
its principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required
disclosure. There can be no assurance that our disclosure controls and procedures will detect or uncover all failures of persons within our Company to
disclose information otherwise required to be set forth in our reports. Nevertheless, our disclosure controls and procedures are designed to provide reasonable
assurance of achieving the desired control objectives. Based on our evaluation, our management, including our President and Chief Executive Officer and
Chief Financial Officer, have concluded that our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15(d)-15(e) of the Exchange Act) as of
the end of the period covered by this annual report are effective at such reasonable assurance level.
139
Management’s Annual Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over our financial reporting. Internal control over financial
reporting is defined in Rule 13a-15(f) or 15d-15(f) promulgated under the Exchange Act as a process designed by, or under the supervision of, the company’s
principal executive and principal financial officers and effected by the company’s board of directors, management and other personnel, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles and includes those policies and procedures that:
·
·
·
pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transaction and dispositions of the assets of the
company;
provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally
accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of
management and directors of the company; and
provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the company’s assets that
could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance
with the policies or procedures may deteriorate.
Our management assessed the effectiveness of our internal control over financial reporting as of December 31, 2016. In making this assessment, our
management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control-Integrated
Framework (1992). Based on that assessment, our management concluded that as of December 31, 2016, our internal control over financial reporting was
effective.
Attestation Report of the Registered Public Accounting Firm
As a non-accelerated filer and a non-large accelerated filer, we are not required to provide our registered public accounting firm’s attestation report
on management’s assessment of our internal control over financial reporting in this annual report.
Changes in Internal Controls Over Financial Reporting
There were no changes in our internal control over financial reporting that occurred during the year ended December 31, 2016 that have materially
affected, or are reasonably likely to materially affect, our internal control over financial reporting.
ITEM 16. [RESERVED]
ITEM 16A. Audit Committee Financial Expert.
Our Board has determined that Ms. Yaron-Eldar and Mr. Marth each qualifies as an audit committee financial expert pursuant to the applicable SEC
rules and that both of Ms. Yaron-Eldar and Mr. Marth are “independent” in accordance with the Nasdaq Capital Market corporate governance requirements.
For information relating to Ms. Yaron-Eldar and Mr. Marth’s qualifications and experience, see “Item 6. Directors, Senior Management and Employees—A.
Directors and Senior Management.”
ITEM 16B. Code of Ethics.
We have adopted a Code of Business Conduct and Ethics applicable to all of our directors and employees, including our President and Chief
Executive Officer, Chief Financial Officer, controller or principal accounting officer or other persons performing similar functions, which is a “code of ethics”
as defined in Item 16B of Form 20-F promulgated by the SEC and as required by the Nasdaq Listing Rules, which refers to Section 406(c) of the Sarbanes-
Oxley Act. Section 406(c) of the Sarbanes-Oxley Act provides that a “code of ethics” means such standards as are reasonably necessary to promote (i) honest
and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships; (ii) full, fair,
accurate, timely and understandable disclosure in the periodic reports required to be filed by the issuer; and (iii) compliance with applicable governmental
rules and regulation.
140
On November 5, 2015 the Board approved an amendment to our Code of Business Conduct and Ethics to include sufficient language regarding the
Foreign Corrupt Practices Act of 1977, as amended (FCPA) and other anti-bribery matters.
The full text of the Code of Business Conduct and Ethics is posted on our website at www.galmedpharma.com. Information contained on, or that can
be accessed through, our website does not constitute a part of this prospectus and is not incorporated by reference herein. We will provide a copy of such code
of ethics without charge upon request by mail or by telephone. If we make any amendment to the Code of Business Conduct and Ethics or grant any waivers,
including any implicit waiver, from a provision of the Code of Business Conduct and Ethics, we will disclose the nature of such amendment or waiver on our
website to the extent required by the rules and regulations of the SEC.
ITEM 16C. Principal Accountant Fees and Services.
Brightman Almagor Zohar & Co., a member firm of Deloitte Touche Tohmatsu Limited, an independent registered public accounting firm, served as
our independent public accountants for the fiscal years ended December 31, 2015 and 2016, for which audited financial statements appear in this annual
report.
The following table presents the aggregate fees for professional services rendered by such accountants to us during their respective term as our
principal accountants in 2015 and 2016.
Audit Fees (1)
Audit-Related fees (2)
Tax Fees (3)
All Other Fees
Total
2016
2015
(US$ in thousands) (US$ in thousands)
60
60
12
20
8
5
--
--
80
85
(1) Includes professional services rendered in connection with the audit of our annual financial statements and the review of our interim financial statements.
(2) Includes fees for professional services rendered in connection with our ATM Offering in 2016 and the Form F-3 in 2015.
(3) Includes fees for professional services rendered in connection with a tax opinion in 2016 and tax ruling from the Israeli Tax Authority regarding the
Reorganization in 2015.
141
Audit Committee Pre-Approval Policies and Procedures
One of our Audit Committee’s main roles is to assist the board of directors in fulfilling its responsibility for oversight of the quality and integrity of
the accounting, auditing and reporting practices of the Company. The Audit Committee oversees the appointment, compensation, and oversight of the public
accounting firm engaged to prepare or issue an audit report on the financial statements of the Company. Our Audit Committee and Board have adopted a pre-
approval policy for the engagement of our independent registered public accounting firm to perform certain audit and non-audit services. Pursuant to this
policy, which is designed to assure that such engagements do not impair the independence of our auditors, the Audit Committee pre-approves annually a list
of specific audit and non-audit services in the categories of audit services, audit-related services, tax services and other services that may be performed by our
independent registered public accounting firm. Since its establishment in May 2014, the Audit Committee has approved all of the audit-related fees, tax fees
and all other fees. If a type of service that is to be provided by our auditors has not received such general pre-approval, it will require specific pre-approval by
our Audit Committee. The policy prohibits retention of the independent registered public accounting firm to perform the prohibited non-audit functions
defined in applicable SEC rules.
ITEM 16D. Exemptions from the Listing Standards for Audit Committees.
Not applicable.
ITEM 16E. Purchases of Equity Securities by the Issuer and Affiliated Purchasers.
Not applicable.
ITEM 16F. Change in Registrant’s Certifying Accountant.
Not applicable.
ITEM 16G. Corporate Governance.
Our shares are listed on the Nasdaq Capital Market under the symbol “GLMD.” In addition to the corporate governance requirements of the
Sarbanes-Oxley Act and the related rules implemented by the SEC, we must comply with the Nasdaq Listing Rules. Under those Nasdaq Listing Rules, we
may elect to follow certain corporate governance practices permitted under the Companies Law in lieu of compliance with corresponding corporate
governance requirements otherwise imposed by the Nasdaq Listing Rules for U.S. domestic issuers.
In accordance with Israeli law and practice, and subject to the exemption set forth in Rule 5615 of the Nasdaq Listing Rules, we follow the
provisions of the Companies Law, rather than the Nasdaq Listing Rules, with respect to the following requirements:
·
·
Distribution of certain reports to shareholders. As opposed to the Nasdaq Listing Rules, which require listed issuers to make certain reports, such as
annual reports, interim reports and quarterly reports, available to shareholders in one of a number of specific manners, Israeli law does not require us
to distribute periodic reports directly to shareholders, and the generally accepted business practice in Israel is not to distribute such reports to
shareholders, but to make such reports available through a public website. In addition to making such reports available on a public website, we plan
to make our audited financial statements available to our shareholders at our offices and will only mail such reports to shareholders upon request. As
a foreign private issuer, we are generally exempt from the SEC’s proxy solicitation rules. See “Item 10. Additional Information—Documents on
Display” for a description of our Exchange Act reporting obligations.
Nomination of directors. With the exception of our external directors and directors elected by our Board due to vacancy, our directors are elected by
an annual meeting of our shareholders to hold office until the next annual meeting following three years from his or her election. See “Item 6.
Directors, Senior Management and Employees—C. Board Practices.” The nominations for directors, which are presented to our shareholders by our
Board, are made by the Nominating Committee itself, in accordance with the provisions of Nasdaq Capital Market Listing Rule 5605(e), our Articles
and the Companies Law. Our Board or one or more shareholders of a company holding at least 1% of the voting power of the company may offer to
nominate a currently serving external director for an additional three year term.
142
·
·
·
Compensation of officers. We follow the provisions of the Companies Law with respect to matters in connection with the composition and
responsibilities of our Remuneration Committee, Office Holder compensation and any required approval by the shareholders of such compensation.
Israeli law and our Articles do not require that the independent members of our Board, or a remuneration committee composed solely of independent
members of our Board, determine an executive officer’s compensation, as is generally required under the Nasdaq Listing Rules with respect to the
Chief Executive Officer and all other executive officers of a company. Instead, remuneration of Office Holders is determined and approved by our
Remuneration Committee, and in general, by our Board as well, and in certain circumstances, by our shareholders, as detailed above. The
requirements for shareholder approval of any Office Holder compensation, and the relevant majority or Special Majority for such approval, are all as
set forth in the Companies Law. Thus, we seek shareholder approval for all corporate actions with respect to Office Holder compensation requiring
such approval under the requirements of the Companies Law, including for our Compensation Policy and for certain Office Holder Compensation,
rather than seeking approval for such corporate actions in accordance with Nasdaq Listing Rules. All members of our Remuneration Committee are
independent directors under applicable Nasdaq Capital Market and SEC rules, as affirmatively determined by our Board. See “Item 6. Directors,
Senior Management and Employees—B. Compensation.”
Independent directors. Although Israeli law does not require that a majority of the directors serving on our Board be “independent,” as defined under
Nasdaq Capital Market Listing Rule 5605(a)(2), but rather requires we have at least two external directors who meet the requirements of the
Companies Law, as described above under “Item 6. Directors, Senior Management and Employees—C. Board Practices—External Directors.”, a
majority of our Board is independent based on the Nasdaq Capital Market rules. We are required, however, to ensure that all members of our Audit
Committee are “independent” under the applicable Nasdaq Capital Market and SEC criteria for independence (as we cannot exempt ourselves from
compliance with that SEC independence requirement, despite our status as a foreign private issuer) and we must also ensure that a majority of the
members of our Audit Committee are “independent directors” as defined in the Companies Law. Our independent director's conduct regularly
scheduled meetings at which only such independent directors are present, as required by the Nasdaq Listing Rules. Our Board has affirmatively
determined that each of Mr. Nir, Mrs. Yaron-Eldar, Mr. Marth, Mr. Hurvitz and Dr. Sidransky qualifies as “independent” under the Nasdaq Capital
Market independence standards.
Shareholder approval. We will seek shareholder approval for all corporate actions requiring such approval under requirements of the Companies
Law, rather than seeking approval for corporate actions in accordance with Nasdaq Capital Market Listing Rule 5635. In particular, under this
Nasdaq Capital Market rule, shareholder approval is generally required for: (i) an acquisition of shares or assets of another company that involves the
issuance of 20% or more of the acquirer’s shares or voting rights or if a director, officer or 5% shareholder has greater than a 5% interest in the target
company or the consideration to be received; (ii) the issuance of shares leading to a change of control; (iii) adoption or amendment of equity
compensation arrangements; and (iv) issuances of 20% or more of the shares or voting rights (including securities convertible into, or exercisable
for, equity) of a listed company via a private placement (or via sales by directors, officers or 5% shareholders) if such equity is issued (or sold) at
below the greater of the book or market value of shares. By contrast, under the Companies Law, shareholder approval is required for, among other
things: (i) transactions with directors concerning the terms of their service or indemnification, exemption and insurance for their service (or for any
other position that they may hold at a company), for which approvals of the remuneration committee, board of directors and shareholders are all
required, (ii) Extraordinary Transactions with controlling shareholders of publicly held companies, which require the special approval described
under “Item 6. Directors, Senior Management and Employees—C. Board Practices—Approval of Related Party Transactions under Israeli Law—
Transactions with Controlling Shareholders,” and (iii) terms of office and employment or other engagement of the controlling shareholder of the
Company or such controlling shareholder’s relative, which require the special approval described under “Item 6. Directors, Senior Management and
Employees—B. Compensation” and “Item 6. Directors, Senior Management and Employees—C. Board Practices—Approval of Related Party
Transactions under Israeli Law.” In addition, under the Companies Law, a merger requires approval of the shareholders of each of the merging
companies. See also “Compensation of officers” above.
143
ITEM 16H. Mine Safety Disclosure.
Not applicable.
ITEM 17. Financial Statements.
PART III
We have responded to Item 18 in lieu of responding to this item.
ITEM 18. Financial Statements.
Please refer to the financial statements beginning on page F-1. The following financial statements, financial statement schedules and related notes
are filed as part of this annual report, together with the report of the independent registered public accounting firm.
Report of Independent Registered Public Accounting Firm
Consolidated Balance Sheets
Consolidated Statements of Operations
Consolidated Statements of Comprehensive Loss
Consolidated Statements of Changes in Shareholders’ Equity
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
144
Page
F-2
F-3
F-4
F-5
F-6
F-7
F-8 - F-26
GALMED PHARMACEUTICALS LTD.
Consolidated Financial Statements
As of December 31, 2016
F-1
To the Board of Directors and Shareholders of GALMED PHARMACEUTICALS LTD.
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have audited the accompanying consolidated balance sheets of Galmed Pharmaceuticals Ltd. ("the Company") and its subsidiaries as of December 31,
2016 and 2015, and the related consolidated statements of operations and changes in shareholders' equity and cash flows for each of the three years in the
period ended December 31, 2016. These consolidated financial statements are the responsibility of the Company's Board of Directors and management. Our
responsibility is to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that
we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not
required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control
over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on
the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates
made by the management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, such consolidated financial statements, present fairly, in all material respects, the financial position of the Company and its subsidiaries as of
December 31, 2016 and 2015, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2016, in
conformity with accounting principles generally accepted in the United States of America.
/s/ Brightman Almagor Zohar & Co.
Certified Public Accountants
Member of Deloitte Touche Tohmatsu Limited
Tel Aviv, Israel
March 23, 2017
F-2
GALMED PHARMACEUTICALS LTD.
Consolidates Balance Sheet
U.S. Dollars in thousands, except share data and per share data
Assets
Current assets
Cash and cash equivalents
Marketable securities
Other accounts receivable
Total current assets
Property and equipment, net
Total assets
Liabilities and stockholders’ equity
Current liabilities
Trade payables
Other accounts payable
Deferred revenue
Total current liabilities
Long-term liabilities
Related parties
Deferred revenue
Total long-term liabilities
Stockholders’ equity
Ordinary shares, par value NIS 0.01 per share;
Authorized 50,000,000 shares;
Issued and outstanding: 12,149,226 shares as of December 31, 2016; 11,100,453 shares as of
December 31, 2015
Additional paid-in capital
Accumulated other comprehensive loss
Accumulated deficit
Total stockholders’ equity
Total liabilities and stockholders’ equity
Accompanying notes are an integral part of the consolidated financial statements.
F-3
3
4
5
6
8
7
8
10
As of December 31,
2016
2015
$
3,097 $
12,351
284
15,732
718
4,156
18,845
379
23,380
883
$
16,450 $
24,263
3,122
363
1,094
4,579
267
529
796
2,259
282
-
2,541
177
-
177
34
75,446
(85)
(64,320)
11,075
32
69,086
(206)
(47,367)
21,545
$
16,450 $
24,263
GALMED PHARMACEUTICALS LTD.
Consolidated Statement of Operations
U.S. Dollars in thousands, except share data and per share data
Revenue
Research and development, expenses
General and administrative expenses
Total operating loss
Financial income, net
Loss before income taxes
Income taxes
Net loss
Basic and diluted net loss per share from continuing operations
Weighted-average number of shares outstanding used in computing basic and diluted
net loss per share
Year ended December 31,
2015
2016
2014
11
12
13
$
$
$
(467) $
14,271
3,078
16,882
(35)
16,847
106
16,953 $
- $
7,629
3,246
10,875
(253)
10,622
-
10,622 $
1.49 $
0.96 $
-
6,664
2,478
9,142
(40)
9,102
1
9,103
0.88
11,374,653
11,100,453
*)10,323,686
*) Retroactively adjusted to reflect the 729:1 share split, which occurred upon consummation of the Reorganization.
The accompanying notes are an integral part of the condensed interim consolidated financial statements.
F-4
GALMED PHARMACEUTICALS LTD.
Consolidated Statement of Comprehensive Loss
U.S. Dollars in thousands, except share data and per share data
Net loss
Other comprehensive loss (income):
Net unrealized loss (gain) on available for sale securities
Comprehensive loss
Year ended December 31,
2015
2016
16,953 $
10,622 $
2014
(121)
16,832 $
210
10,832 $
9,103
(4)
9,099
$
$
The accompanying notes are an integral part of the condensed interim consolidated financial statements.
F-5
GALMED PHARMACEUTICALS LTD.
Statements of Changes in Stockholders’ Equity
U.S. Dollars in thousands, except share data and per share data
Ordinary shares
Shares
Amount
Additional
paid-in
capital
Accumulated
other
comprehensive
income (loss)
Accumulated
deficit
Total
Balance - January 1, 2015
11,100,453 $
32 $
68,116 $
4 $
(36,745) $
31,407
Stock based compensation
Unrealized loss from marketable securities
Net loss
–
–
–
–
–
–
–
–
970
–
(210)
–
–
970
(210)
–
(10,622)
(10,622)
Balance - December 31, 2015
11,100,453
32
69,086
(206)
(47,367)
21,545
Stock based compensation
–
–
1,628
Issuance of Ordinary Shares (*)
933,160
2
4,477
Issuance of common stock upon stock option exercises
115,613
Unrealized gain from marketable securities
–
–
–
255
–
121
–
–
–
–
1,628
–
4,479
–
–
255
121
Net loss
Balance - December 31, 2016
*) See also Note 10.A.7.
–
12,149,226 $
–
34 $
–
75,446 $
–
(85) $
(16,953)
(64,320) $
(16,953)
11,075
The accompanying notes are an integral part of the condensed interim consolidated financial statement
F-6
GALMED PHARMACEUTICALS LTD.
Consolidated Statements of Cash Flows
U.S. Dollars in thousands, except share data and per share data
Cash flow from operating activities
Net loss for the year
Adjustments required to reconcile net loss to net cash used in operating activities:
Depreciation and amortization
Amortization of discount/premium on marketable securities
Loss from realization of marketable securities
Stock-based compensation expense
Changes in operating assets and liabilities:
Increase in deferred revenue from collaboration agreement
Decrease (increase) in other accounts receivable
Increase (decrease) in trade payables
Increase (decrease) in other accounts payable
Increase (decrease) in related party
Net cash used in operating activities
Cash flow from investing activities
Purchase of property and equipment
Proceeds from sale of property and equipment
Investment in securities, available for sale
Proceeds from sale of securities, available for sale
Disposal of (Investment in) short-term deposit
Net cash provided by (used in) investing activities
Cash flow from financing activities
Issuance of ordinary shares
Issuance of ordinary shares upon IPO, net (*)
Issuance of stock offerings, net of issuance costs (**)
Proceeds from exercise of options
Net cash provided by financing activities
Increase (decrease) in cash and cash equivalents
Cash and cash equivalents at the beginning of the year
Cash and cash equivalents at the end of the year
Cash received from interest
Cash paid for taxes
*) Net of offering costs in the amount of $4,204, see also Note 10.A.6.
**) See also Note 10.A.7.
The accompanying notes are an integral part of the consolidated financial statements.
F-7
Year ended December 31,
2015
2016
2014
$
(16,953) $
(10,622) $
(9,103)
169
44
231
1,628
1,623
95
863
81
90
(12,129)
(17)
13
(7,615)
13,955
–
6,336
–
–
4,479
255
4,734
(1,059)
4,156
3,097 $
382 $
106 $
50
92
50
970
–
(214)
1,384
39
(223)
(8,474)
(159)
–
(26,541)
9,594
6,000
(11,106)
–
–
–
–
–
(19,580)
23,736
4,156 $
473 $
- $
9
–
–
601
–
(149)
(480)
(91)
(28)
(9,241)
(770)
–
(2,246)
–
(6,000)
(9,016)
2,000
39,856
–
–
41,856
23,599
137
23,736
–
1
$
$
$
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 1 – General
Galmed Pharmaceuticals Ltd. (the “Company”) is a clinical-stage biopharmaceutical company primarily focused on the development of therapeutics for the
treatment of liver diseases.
The Company, in its current legal structure, was incorporated in Israel on July 31, 2013 and commenced operations on February 2, 2014. On February 2,
2014, upon a pre-ruling from the Israeli Tax Authorities, the Company underwent a reorganization (the “Reorganization”), pursuant to which all of Galmed
Holdings Inc.’s business, including shares in its fully owned subsidiary, Galmed 2000, which was incorporated in the British Virgin Island) and net assets,
was transferred to the Company. Contemporaneously, Galmed Pharmaceuticals Ltd. effectuated a stock split of 729:1. This Reorganization was deemed to be
a restructuring under common control, in which the Company is the Successor (the “Successor”) and Galmed Holdings Inc. (which, as of the date of the
Reorganization, was owned exactly proportionately by the same shareholders that owned the Company) is the predecessor (the “Predecessor”).
Accordingly, the Company succeeded the Predecessor's activities and the comparative figures which is presented on these financial statements.
All the data in the accompanying notes regarding the number of shares, options, warrants, capital notes, convertible notes, per share and par value is
retroactively adjusted to reflect the 729:1 share split, which occurred upon consummation of the Reorganization.
The Company holds a wholly owned subsidiary, Galmed International Ltd., which was incorporated in Malta. Galmed International Ltd. holds a wholly
owned subsidiary, Galmed Medical Research Ltd., which was incorporated in Israel.
The Company also holds a wholly owned subsidiary, Galmed Research and Development Ltd., which was incorporated in Israel.
Note 2 – Significant Accounting Policies
A. Basis of presentation
The consolidated financial statements have been prepared in accordance with United States Generally Accepted Accounting Principles ("U.S.
GAAP").
B. Use of estimates
The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the
amounts reported in the financial statements and accompanying notes. Significant estimates include, but are not limited to, those related to
deferred revenue, revenue recognition, stock-based compensation and accounting for income taxes, including valuation allowances.
F-8
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 2 – Significant Accounting Policies (Cont.)
C. Financial statement in U.S. dollars
The functional currency of the Company and its subsidiaries is the U.S dollar (the “dollar”), because the dollar is the currency of the primary
economic environment in which the Company and its subsidiaries operate, and expect to continue operating in the foreseeable future.
Transactions and balances denominated in dollars are presented in their original amounts. Non-dollar denominated transactions and balances
have been re-measured to dollars in accordance with the provisions of ASC 830-10, “Foreign Currency Translation.” All transaction gains and
losses from re-measurement of monetary balance sheet items denominated in non-dollar currencies are reflected in the statement of operations as
financial income or expenses, as appropriate.
D. Principles of consolidation
The consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries: Galmed Research and
Development Ltd, Galmed 2000 Inc., Galmed International Ltd., and Galmed Medical Research Ltd. All intercompany balances and transactions
have been eliminated upon consolidation.
E. Cash and cash equivalents
Cash equivalents are short-term, highly liquid investments that are readily convertible into cash with maturities of three months or less as of the
date acquired.
F. Marketable Securities
Marketable securities are considered to be available for sale and are carried at fair value. Unrealized gains and losses net of tax, if any, are
reported as a separate component of stockholders’ equity. The cost of marketable securities classified as available for sale is adjusted for
amortization of premiums and accretion of discounts to maturity. Such amortization and accretion are included in interest income. Realized gains
and losses and declines in value judged to be other than temporary, if any, are also included in other income, net. Interest on securities classified
as available for sale is included in interest income. The cost of securities sold is based on the specific identification method.
For all investments in marketable securities, the Company assesses whether the impairment is other-than-temporary. If the fair value of a security
is less than its amortized cost basis, an impairment is considered other-than-temporary if (i) the Company has the intent to sell the security or it is
more likely than not that the Company will be required to sell the security before recovery of its entire amortized cost basis, or (ii) the Company
does not expect to recover the entire amortized cost of the security. If an impairment is considered other-than-temporary based on condition (i),
the entire difference between the amortized cost and the fair value of the security is recognized in earnings. If an impairment is considered other-
than-temporary based on condition (ii), the amount representing credit losses, defined as the difference between the present value of the cash
flows expected to be collected and the amortized cost basis of the security, will be recognized in earnings, and the amount relating to all other
factors will be recognized in other comprehensive income. The Company evaluates both qualitative and quantitative factors such as duration and
severity of the unrealized losses, credit ratings, default and loss rates of the underlying collateral, structure and credit enhancements to determine
if a credit loss may exist.
F-9
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 2 – Significant Accounting Policies (Cont.)
G. Property and equipment
Property and equipment are stated at cost, less accumulated depreciation. Depreciation is calculated using the straight-line method over the
estimated useful lives of the assets. The annual depreciation rates are as follows:
Office furniture and equipment
Computer software, electronic and medical equipment
Leasehold improvements
H. Impairment of long-lived assets
%
7-16
15–33
10
The Company’s and its subsidiaries’ long-lived assets are reviewed for impairment in accordance with ASC 360-10, “Accounting for the
Impairment or Disposal of Long-Lived Assets,” whenever events or changes in circumstances indicate that the carrying amount of an asset may
not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of the assets to the future
undiscounted cash flows expected to be generated by the assets. If such assets are considered to be impaired, the impairment to be recognized is
measured by the amount by which the carrying amount of the assets exceeds their fair value. During 2016 and 2015, no impairment losses were
identified.
I.
Severance pay
The Company’s liability for severance pay is calculated in accordance with Israeli law, based on the most recent salary paid to each employee
and the length of employment with the Company. Part of the liability is funded through individual insurance policies purchased from outside
insurance companies, which are not under the Company’s control. The Company employees are included under section 14 of the Severance
Compensation Act, 1963 (“Section 14”) for a portion of their salaries. According to Section 14, these employees are entitled to monthly deposits
at a rate of 8.33% of their monthly salary, made in their name with such insurance companies. Under the Severance Compensation Act, 1963,
payments in accordance with Section 14 release the Company from any future severance payments to those employees. The aforementioned
deposits are not recorded as an asset in the Company’s balance sheet.
F-10
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 2 – Significant Accounting Policies (Cont.)
J. Fair value of financial instruments
The estimated fair value of financial instruments was determined by the Company using available market information and valuation
methodologies. Considerable judgment is required in estimating fair values. Accordingly, the estimates may not be indicative of the amounts the
Company could realize in a current market exchange.
The following methods and assumptions were used by the Company in estimating its fair value disclosures for financial instruments:
The carrying amounts of cash and cash equivalents, short-term bank deposits, marketable securities and trade payables approximate their fair
value due to the short-term maturity of such instruments.
Fair value is an exit price representing the amount that would be received upon selling an asset or that would be paid to transfer a liability in an
orderly transaction between market participants. As such, fair value is a market-based measurement that should be determined based on
assumptions used by market participants in pricing an asset or a liability.
A three-tier fair-value hierarchy was established as a basis for considering such assumptions and for inputs used in the valuation methodologies
in measuring fair value:
·
·
·
Level 1 - Observable inputs that reflect quoted prices (unadjusted) for identical assets or liabilities in active markets
Level 2 - Other inputs that are directly or indirectly observable in the marketplace; and
Level 3 - Unobservable inputs that are supported by little or no market activity
The fair value hierarchy also requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when
measuring fair value.
F-11
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 2 – Significant Accounting Policies (Cont.)
K. Accounting for stock-based compensation
The Company applies ASC 718-10, “Share-Based Payment,” which requires the measurement and recognition of compensation expense for all
share-based payment awards made to employees and directors, including employee stock options under the Company’s stock plans, based on
estimated fair values. ASC 718-10 requires companies to estimate the fair value of equity-based payment awards on the date of grant using an
option-pricing model. The value of the portion of the award that is ultimately expected to vest is recognized as expense over the requisite service
periods in the Company’s consolidated statement of operations.
The Company recognizes compensation expense for the value of non-employee awards, which have graded vesting, based on the accelerated
attribution method over the requisite service period of each award, net of estimated forfeitures.
The Company recognizes compensation expenses for the value of employee awards, which have graded vesting, based on the straight-line
method over the requisite service period of each of the awards, net of estimated forfeitures.
The Company estimates the fair value of restricted shares based on the market price of the shares at the grant date, and estimates the fair value of
stock options granted using a Black-Scholes option-pricing model. The option-pricing model requires a number of assumptions, the most
significant of which are the expected stock-price volatility and the expected option term (the time from the grant date until the options are
exercised or expire).
The Company’s calculations of the expected volatility were based upon actual historical stock-price movements over the period, which was equal
to the expected option term. The expected option term was calculated for options granted to employees and directors in accordance with ASC-
718-10-S99, using the “simplified” method, and grants to non-employees were based on the contractual term. Historically, the Company has not
paid dividends, and has no foreseeable plans to do so. The risk-free interest rate is based on the yield from U.S. Treasury zero-coupon bonds with
an equivalent term.
The following assumptions were used for the fiscal year 2016 and 2015 grants: dividend yield of 0.00% for both periods; risk-free interest rate
between 1.22% and 1.90%; an expected life between 5 and 6.25 years; and a volatility rate ranging between 70% to 84%.
F-12
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 2 - Significant Accounting Policies (Cont.)
L. Deferred Revenue and Revenue Recognition
The Company has entered into a collaboration agreement with Samil Pharm. Co. Ltd., The terms of our collaboration agreement include
deliverables such as non-refundable license fees, payments based upon achievement of developmental or regulatory approval milestones, and
royalties on product sales.
The collaboration agreement includes additional payments payable to the Company upon the achievement of performance-based milestones.
These milestones are categorized into two types; development milestones which are generally based on the advancement of our ongoing Phase
IIb ARREST trial and potential pivotal study, and regulatory milestones which are based on the approval of a new drug application in the
territory in respect of the product. Milestones that are tied to regulatory approval are not considered probable of being achieved until such
approval is received. Upfront payments from customers are not subject to refund if the development activities are not successful.
Revenue is recognized when delivery has occurred, evidence of an arrangement exists, title and risks and rewards for the products are transferred
to the customer, collection is reasonably assured and product returns can be reliably estimated.
Amounts received prior to satisfying the above revenue recognition criteria are recorded as deferred revenue in the accompanying consolidated
balance sheets. The deferred revenue is then amortized over the contractual period, and future milestone payments will be recognized once
earned. Although the Company follows detailed guidelines in measuring revenue, certain judgments affect the application of its revenue policy.
For example, in connection with the existing license agreement, the Company has recorded in its consolidated balance sheet short-term and long-
term deferred revenue based on management’s best estimate of when such revenue will be recognized. Short-term deferred revenue consists of
amounts that are expected to be recognized as revenue within twelve months from balance sheet date. Amounts that expected to be recognized
beyond twelve months from balance sheet date are classified as long-term deferred revenue. However, this estimate is based the Company’s
current operating plan and, if the operating plan should change in the future, management may recognize a different amount of deferred revenue
classified to short term and long term.
M. Research and development expenses
Research and development expenses are charged to the statement of operations as incurred.
F-13
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 2 – Significant Accounting Policies (Cont.)
N.
Income taxes
The Company accounts for income taxes utilizing the asset and liability method in accordance with ASC 740, “Income Taxes.” Current tax
liabilities are recognized for the estimated taxes payable on tax returns for the current year. Deferred tax liabilities or assets are recognized for the
estimated future tax effects attributable to temporary differences between the income-tax bases of assets and liabilities and their reported amounts
in the financial statements and for tax loss carry forwards. Measurement of current and deferred tax liabilities and assets is based on provisions of
enacted tax laws, and deferred tax assets are reduced, if necessary, by the amount of tax benefits, the realization of which is not considered more
likely than not based on available evidence.
ASC 740-10 requires a two-step approach to recognizing and measuring uncertain tax positions. The first step is to evaluate the tax position for
recognition by determining if the weight of available evidence indicates that it is more likely than not that the position will be sustained on audit,
including resolution of related appeals or litigation processes, if any. The second step is to measure the tax benefit as the largest amount that is
more than 50% likely of being realized upon ultimate settlement.
O. Basic and diluted net loss per share
Basic net loss per share is computed based on the weighted-average number of shares outstanding during each year. Diluted net loss per share is
computed based on the weighted-average number of shares outstanding during each year, plus the dilutive potential of the ordinary shares
considered outstanding during the year, in accordance with ASC 260-10, “Earnings Per Share.”
All outstanding stock options and warrants were excluded from the calculation of the diluted loss per share for the years ended December 31,
2016, 2015 and 2014, because all such securities have an anti-dilutive effect.
P. Segment Reporting
The chief operating decision maker for the Company is the Chief Executive Officer. The Chief Executive Officer reviews financial information
presented on a consolidated basis for purposes of allocating resources and evaluating financial performance. Accordingly, management has
determined that the Company operates in one reportable segment.
F-14
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 2 - Significant Accounting Policies (Cont.)
Q. Comprehensive Loss
The purpose of reporting comprehensive income is to report a measure of all changes in equity of an entity that result from recognized
transactions and other economic events of the period resulting from transactions from non-owner sources.
R. Recently issued accounting pronouncements
From time to time, new accounting pronouncements are issued by the Financial Accounting Standards Board, or FASB, or other standard setting
bodies and adopted by the Company as of the specified effective date. Unless otherwise discussed, the impact of recently issued standards that
are not yet effective will not have a material impact on our financial position or results of operations upon adoption.
In January 2016 the FASB issued ASU 2016-01 “Recognition and Measurement of Financial Assets and Financial Liabilities”, which provides
targeted improvements to the recognition, measurement, presentation and disclosure of financial assets and financial liabilities. Specific
accounting areas addressed include, equity investments, financial liabilities reported under the fair value option and valuation allowance
assessment resulting from unrealized losses on available-for-sale securities. The ASU also changes certain presentation and disclosure
requirements for financial instruments. The Update is to be applied by means of a cumulative effect adjustment to the balance sheet as of the
beginning of the fiscal year of adoption.
This ASU is effective for the Company in its first quarter of fiscal year 2019. Early adoption, with certain exceptions, is not permitted. The
Company is currently evaluating the effect this ASU will have on its consolidated financial statements.
In February 2016, the FASB issued Accounting Standards Update No. 2016-02, Leases (Topic 842) (“ASU 2016-02”), which amends, among
other things, the existing guidance by requiring lessees to recognize lease assets (right-to-use) and liabilities (for reasonably certain lease
payments) arising from operating leases on the balance sheet. For leases with a term of twelve months or less, ASU 2016-02 permits an entity to
make an accounting policy election to recognize such leases as lease expense, generally on a straight-line basis over the lease term. ASU 2016-
02 is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2018 using a modified retrospective
approach, with early adoption permitted. The Company is currently evaluating ASU 2016-02 and its impact on its consolidated financial
statements.
F-15
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 2 - Significant Accounting Policies (Cont.)
R. Recently issued accounting pronouncements (Cont.)
In June 2016, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) No. 2016-13, Financial
Instruments – Credit Losses – Measurement of Credit Losses on Financial Instruments, which introduces a model based on expected losses to
estimate credit losses for most financial assets and certain other instruments. In addition, for available-for-sale debt securities with unrealized
losses, the losses will be recognized as allowances rather than reductions in the amortized cost of the securities. The standard is effective for
annual reporting periods beginning after December 15, 2019, with early adoption permitted for annual reporting periods beginning after
December 15, 2018. Entities will apply the standard’s provisions by recording a cumulative-effect adjustment to retained earnings. The Comapny
evaluating the impact of the adoption on our consolidated balance sheet, results of operations, cash flows and disclosures.
In August 2016, the FASB issued Accounting Standards Update No. 2016-15, Classification of Certain Cash Receipts and Cash Payments (“ASU
2016-15”), which amends ASC 230 to add and clarify guidance on the classification of certain cash receipts and payments in the statement of
cash flows. ASU 2016-15 was issued with the intent of reducing diversity in practice with respect to certain types of cash flows. ASU 2016-15
is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2017, with early adoption permitted. The
Company is currently reviewing and evaluating this guidance and its impact on its consolidated financial statements.
F-16
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 3 – Short Term Investments
The following table summarizes the Company’s short term investments as of December 31, 2016 and 2015:
Municipals
Corporate debt securities
Total Short term investments
Municipals
Corporate debt securities
Total Short term investments
As of December 31, 2016
Gross
Gross
Unrealized
Unrealized
Losses
Gains
Estimated
Fair Value
(in thousands)
– $
11
11 $
(2) $
(94)
(96) $
1,574
10,777
12,351
Cost Basis
1,576 $
10,860
12,436 $
As of December 31, 2015
Gross
Gross
Unrealized
Unrealized
Losses
Gains
Estimated
Fair Value
(in thousands)
– $
11
11 $
(22) $
(195)
(217) $
4,384
14,461
18,845
Cost Basis
4,406 $
14,645
19,051 $
$
$
$
$
The Company’s financial assets are measured at fair value on a recurring basis by level within the fair value hierarchy. All of the Company's short
term investments are classified as Level 2. Other than the marketable securities, the company doesn't have any other financial assets or financial
liabilities marked to market at fair value.
The contractual maturity of the above mentioned short term investments varies between less than one year to three years.
The Company reviews the individual securities in its portfolio to determine whether a decline in a security’s fair value below the amortized cost
basis is other-than-temporary. The Company determined that as of January 31, 2016 and 2015 there were no investments in its portfolio that were
other-than-temporarily impaired.
F-17
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 4 – Other Accounts Receivable
Government institutions
Prepaid expenses
Note 5 – Property and equipment, net
Medical equipment
Office furniture and equipment
Computer software and electronic equipment
Leasehold improvements
Less - Accumulated depreciation
Net book value
Note 6 – Other Accounts Payable
Accrued expenses
Employees and related institutions
Accrued vacation *)
As of December 31,
2016
2015
(in thousands)
30 $
254
284 $
As of December 31,
2016
2015
(in thousands)
737 $
33
62
130
962
244
718 $
As of December 31,
2016
2015
(in thousands)
71 $
236
56
363 $
109
270
379
750
30
55
123
958
75
883
113
137
32
282
$
$
$
$
$
$
*)
Including inter alia due to a related party in the amount of $44 thousands and $22 thousand, as of December 31, 2016 and 2015, respectively.
Note 7 – Related Parties
In December 2011, the Company signed an agreement with the beneficiaries of one of its cofounders, which stated that the beneficiaries are
entitled to an aggregate amount of $263 thousands as a result of outstanding obligations of the Company owed to the late co-founder. Such
amount is subject to annual interest equal to LIBOR + 1%. During the year 2015, the balance was fully paid.
F-18
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 8 – Deferred Revenue and Revenue Recognition
On July 28, 2016, the Company signed a Collaboration Agreement with Samil Pharm. Co. Ltd. (the “Samil”), for an exclusive, royalty-bearing
license for the commercialization of Aramchol (with an option to manufacture) for the treatment of fatty liver indications including NASH in the
Republic of Korea. Under the terms of the agreement, the company received an up-front payment of approximately $2.1 million. Samil has also
agreed to pay additional clinical- and regulatory-based milestone payments, which may aggregate to $6.0 million, as well as tiered, double-digit
royalties payable on sales (under certain limitations). Additionally, following the ARREST Study, Samil has an option to extend the License to
Vietnam, which, if exercised, would increase the clinical- and regulatory-based milestone payments.
The up-front payment has been recorded as deferred revenue. The deferred revenue is then amortized over the contractual period, and future
milestone payments will be recognized once earned. Accordingly, during the year ended December 31, 2016, the Company recognized revenue
of $467 thousands, with the remaining amount of $1.6 is recorded as deferred revenue, of which, $1.1 million is classified as short-term portion
of deferred revenue and $529 thousands are classified as long-term portion of deferred revenue.
Note 9 – Commitments and Contingencies
A. Contingencies
In 2002, the Company entered an agreement with Aventis Pharma Deutschland GmbH. (“Aventis”), in which Aventis agreed that the Company
will have the exclusive worldwide right to commercialize an invention covered by Israeli patent application 123998 and PCT/IL99/00173, and
the Company agreed to pay Aventis a royalty of 10% in respect of all income that the Company or its affiliates may receive from the
commercialization of such invention which is related to the prevention and treatment of gallstones.
B. Commitments
The following table summarizes the Company's significant contractual obligations at December 31, 2016:
Facility leases
Purchase Obligations (1)
Total
Total
Less than
1 year
(in thousands)
1-3 years
$
$
115 $
3,330
3,445 $
52 $
1,996
2,048 $
63
1,334
1,397
(1) Purchase obligations included as commitments under agreements to the extent they are quantifiable and are not cancelable. The above-mentioned
commitments mostly relates to agreement with medical felicities in connection with ongoing clinical trials.
Other than as described above, the Company did not have any material commitments for capital expenditures, including any anticipated material
acquisition of plant and equipment or interests in other companies, as of December 31, 2016.
F-19
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 10 – Shareholders’ Equity
A. Ordinary shares
1. Ordinary shares confer upon the holders the right to receive notice to participate and vote in general meetings of the Company and the right
to receive dividends, if declared.
2. During the period of September 11, 2000 (date of inception) through 2009, a total of 4,995,837 ordinary shares were issued by the Company
in consideration of $4.2 million.
3.
4.
In December 2013, upon the request of convertible-notes holders, the Company converted all of its outstanding convertible notes into
1,026,432 ordinary notes.
In December 2013, upon the capital-notes holders’ request, the Company converted all of its capital notes into 1,043,928 ordinary shares
with a par value of NIS 0.01 per share.
On February 3, 2014, the Company entered into a share purchase agreement with certain of its shareholders and new investors, pursuant to
which the Company issued to such existing shareholders and new investors 560,224 ordinary shares at a price per share of $3.57 for a total
consideration in the amount of approximately $2 million.
F-20
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 10 – Shareholders’ Equity (Cont.)
A. Ordinary shares (Cont.)
5. On March 12, 2014, the Company completed an initial public offering (the “IPO”) and listed its ordinary shares on the NASDAQ Capital
Market under the ticker symbol GLMD. In the IPO, the Company issued under 3.3 million shares to the market at a price of $13.50 per share
(par value NIS 0.01 per share), for a total consideration of approximately $40 million, net of offering costs in the amount of approximately
$4.2 million.
6. On May 31, 2016, the Company entered into a Controlled Equity Offering Sales Agreement (the "‘At-The-Market’ Offering" or the "ATM
Offering") with Cantor Fitzgerald & Co., as the Company’s sales agent (“Cantor Fitzgerald”), to issue and sell, from time to time through
Cantor Fitzgerald, ordinary shares having an aggregate Offering price of up to $16 million. Under the ATM Offering, the Company may sell
ordinary shares by any method permitted by law and deemed to be an “at-the-market” offering, as defined in Rule 415 promulgated under the
Securities Act of 1933, as amended. The Company is not obligated to make any sales under the Sales Agreement. As of December 31, 2016
the Company had sold 933,160 ordinary shares through its ATM Offering for total proceeds of approximately $4.5 million, net of issuance
expenses.
B. Stock-based compensation
1. The Company one equity-based incentive plan, the 2013 Incentive Share Option Plan. As of December 31, 2016, a total of 3,090,492 shares
were reserved for issuance under the 2013 Plan. the 2013 Plan, which was adopted by the Board on September 2, 2013, and approved by our
shareholders in December 30, 2013 (as was amended by the Board and our shareholders on March 30, 2015 and May 11, 2015, respectively),
provides for the grant of options to purchase the ordinary shares and the issuance of RSUs to the Company's affiliates’ respective directors,
employees, Office Holders, service providers and consultants. The 2013 Plan provides for such equity-based compensation under various and
different tax regimes.
2. A summary of the status of the Company’s option plans as of December 31, 2016 and 2015 and changes during the years then ended are
presented below:
F-21
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 10 – Shareholders’ Equity (Cont.)
B. Stock-based compensation (Cont.)
2016
2015
Number of
share options
Weighted
average
exercise
price
Number of
share
options
Weighted
average
exercise
price
Options outstanding at beginning of year
1,753,753 $
2.12
1,619,003 $
Granted
Forfeited
Exercised
856,500 $
6.08
271,000 $
(83,750) $
6.00
(136,250) $
(115,613) $
2.22
-
Outstanding at end of year
2,410,890 $
3.39
1,753,753 $
Options exercisable at year end
1,385,829 $
1.38
1,338,097 $
1.71
7.21
7.37
-
2.12
0.92
As of December 31, 2016 and 2015, the weighted-average remaining contractual term of the outstanding and exercisable options, excluding
the 38,637 Options granted in 2002 that have no expiration date, is 8.35 and 9.45 years, respectively.
The weighted average grant date fair value of the options granted during the years ended December 31, 2016 and 2015 is $3.76 and $6.48,
respectively.
As of December 31, 2016 a total of the 1,110,006 outstanding and exercisable options are “in the money” with aggregate intrinsic value of
$3.6 million; while as of December 31, 2015 all the outstanding and exercisable options were “in the money” with aggregate intrinsic value
of $10.3 million.
The unrecognized compensation expense calculated under the fair-value method for stock options expected to vest as of December 31, 2016
and 2015 is approximately $4.3 million and $3.2 million and is expected to be recognized over a weighted-average period of three years.
For the years ended 2016 and 2015, the company recorded a total of $1.5 million and $970 thousands of stock-based compensation expenses,
in connection with the above mentioned option.
F-22
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 10 – Shareholders’ Equity (Cont.)
B. Stock-based compensation (Cont.)
3. During 2016 the company granted a total of 78,750 RSU's. The RSU's will vest over four years. As of December 31, 2016, all the
aforementioned options were outstanding. During the year 2016, with respect to the above-mentioned RSU's, the Company recorded stock-
based compensation expenses in the amount of $124 thousand. As of December 31, 2016, none of the above mentioned RSU's were vested.
The unrecognized compensation expense calculated under the fair-value method for stock options expected to vest as of December 31, 2016
approximately $413 thousands and is expected to be recognized over a weighted-average period of three years.
4. During the year 2016, the Company recorded $121 thousands of stock-based compensation expense due to the modification of options and
RSU's awards to two of its officers due to their termination of employment. The expiration date of the vested options held by one employee
was extended from 3 months to 5 years and for the other employee from 3 months to 1 year
5. Subsequent to the balance sheet date, In January 2017, the Company granted 130,000 options to purchase ordinary shares of the Company
with a NIS 0.01 par value to certain directors. The options and restricted shares will vest over a period of four years. The options will expire
10 years from the grant date. The exercise price of the options is $3.84 per share. The aggregate grant date fair value of such options is $285
thousand.
Note 11 – Research and Development Expenses
Chemistry and formulation studies
Salaries
Stock-based compensation
Research and preclinical studies
Clinical studies
Regulatory and other expenses
2016
Year ended December 31,
2015
(in thousands)
2014
$
$
1,802 $
1,004
757
924
9,263
521
14,271 $
1,902 $
808
111
637
3,671
500
7,629 $
3,923
573
–
865
1,148
155
6,664
F-23
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 12 – General and Administrative Expenses
Stock-based compensation
Professional fees
Salaries and benefits
Traveling and conference costs
Rent and office-maintenance fees
Investor relations and business Development expenses
Other
2016
Year ended December 31,
2015
(in thousands)
2014
871 $
683
849
106
303
248
18
3,078 $
858 $
741
747
65
359
457
19
3,246 $
601
625
588
30
284
337
13
2,478
$
$
Note 13 – Income Taxes
A. General
The Company is assessed for tax purposes on an unconsolidated basis. Each of the Company’s subsidiaries is subject to the tax rules prevailing in
its country of incorporation.
B. Corporate Taxation
Israeli subsidiary:
In January 2016, a legislation to amend the Israeli corporate income tax law was published. The legislation determined a decrease of the
corporate income tax law as of January 1, 2016 to 25% (1.5% decrease). In December 2016, a legislation to amend the corporate income tax law
was published. The legislation determined a decrease of the corporate income tax law as of January 1, 2017 to 24% and another decrease of the
corporate income tax law as of January 1, 2018 to 23%.
Maltese subsidiary:
Taxable income of Maltese companies is subject to tax at the rate of 35% in 2016 and 2015 (“Regular Tax Rate”).
C. Net Operating Loss Carry forward
As of December 31, 2016, the Company had approximately $36.0 million net-operating-loss carry forwards, consisting of approximately $12.0
million of Maltese net-operating-loss carry forwards and approximately 24.0 million Israeli net-operating-loss carry forward. As well, the
Company had approximately $407 thousands capital loss carry forward from sale of marketable securities. The Maltese and the Israeli loss carry
forwards have no expiration date.
F-24
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 13 – Income Taxes (Cont.)
D. Deferred income taxes
Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial-
reporting purposes and the amounts used for income-tax purposes.
Significant components of the Company’s and its subsidiaries’ assets are as follows
Deferred tax assets
Israeli subsidiary net-operating-loss carry forward
Maltese subsidiary net-operating-loss carry forward
Israeli subsidiary capital-loss carry forward
Other reserves and allowances
Total deferred-tax assets
Valuation allowance
Net deferred-tax assets
As of December 31,
2016
2015
(in thousands)
$
$
6,003 $
4,609
407
82
10,111
(11,101)
– $
3,251
4,608
-
56
7,915
(7,915)
–
Deferred-tax assets for carry forward losses in Malta and Israel are calculated using the applicable tax rate at the time of expected realization of
the carry forward losses. The Company has provided full valuation allowances in respect of deferred-tax assets. Management currently believes
that it is more likely than not that those deferred taxes will not be realized in the foreseeable future.
E. Tax assessments
The Israeli subsidiary has received final tax assessments through the year ended December 31, 2012.
F. Effective tax expense
A reconciliation of the Company’s effective tax expense to the Company’s theoretical statutory tax benefit is as follows.
F-25
GALMED PHARMACEUTICALS LTD.
Notes to Consolidated Financial Statements
Note 13 – Income Taxes (Cont.)
F. Effective tax expense (Cont.)
2016
Year ended December 31,
2015
(in thousands)
2014
Loss before taxes on income, as reported in the consolidated statements of operations
$
16,847
$
10,622
$
9,102
Statutory tax rate
Theoretical tax benefit
Losses and other items for which a valuation allowance was provided or benefit from loss
carry forwards
Tax withheld from upfront payment from Samil
Others
25%
26.5%
26.5%
4,212
2,815
(4,212)
105
1
(2,815)
-
-
2,412
(2,412)
-
1
Actual tax expense
$
106
$
-
$
1
F-26
ITEM 19. Exhibits.
Exhibit No.
Description
1.1
4.1
4.2
4.3
4.4
4.5
Form of Amended and Restated Articles of Association of Galmed Pharmaceuticals Ltd. (English Translation) (1)
Form of Indemnification Agreement (1)
Galmed Pharmaceuticals Ltd. 2013 Incentive Share Option Plan (4)
Agreement, dated September 2002, by and between Galmed International Limited and Aventis Pharm Deutschland GmbH (2)
Personal Employment Agreement, dated December 23, 2013, by and between Galmed Medical Research Ltd. and Allen Baharaff (2)
Development and Manufacturing Services Agreement, dated January 27, 2015, between Galmed Research and Development Ltd. and
Perrigo API Ltd.*
145
Exhibit No.
Description
4.6
4.7
4.8
4.9
Investigator Initiated Clinical Trial Agreement, dated February 8, 2015, between Galmed Research and Development Ltd. and the
University of California, San Diego*
Compensation Policy of Galmed Pharmaceuticals Ltd. (5)
Lease, dated March 22, 2015, between Galmed Research and Development Ltd. and Mintz K. Construction Company Ltd.**
Addendum to Lease, dated February 27, 2017, between Galmed Research and Development Ltd. and Mintz K. Construction Company
Ltd.**
4.10
Controlled Equity OfferingSM Sales Agreement, dated May 31, 2016, by and between Galmed Pharmaceuticals Ltd. and Cantor Fitzgerald
& Co. (3)
8.1
List of subsidiaries of Galmed Pharmaceuticals Ltd. (1)
12.1
Certification of Chief Executive Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a) as adopted pursuant to Section 302 of
the Sarbanes-Oxley Act of 2002.**
12.2
Certification of Chief Financial Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a) as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.**
13.1
Certification of Chief Executive Officer and Chief Financial Officer pursuant to Exchange Act Rules 13a-14(b) and 15d-14(b) and 18
U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.**
(1) Incorporated herein by reference to Amendment No. 1 to the Registration Statement on Form F-1, filed with the SEC on February 28, 2014.
(2) Incorporated herein by reference to the Registration Statement on Form F-1, filed with the SEC on February 6, 2014.
(3) Incorporated herein by reference to the Company’s Report on Form 6-K filed with the SEC on June 1, 2016.
(4) Incorporated herein by reference to Exhibit A to the Company's Report on Form 6-K filed with the SEC on April 2, 2015.
(5) Incorporated herein by reference to Exhibit A to the Company's Report on Form 6-K filed with the SEC on November 6, 2014
* Portions of this exhibit were omitted and have been filed separately with the Secretary of the Securities and Exchange Commission pursuant to the
Registrant’s application requesting confidential treatment under Rule 24b-2 of the Exchange Act.
** Filed herewith.
146
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned
to sign this annual report on its behalf.
SIGNATURES
Date: March 23, 2017
GALMED PHARMACEUTICALS LTD.
By:
/s/ Allen Baharaff
Allen Baharaff
President and Chief Executive Officer
147
Exhibit 4.8
English summary of Principal Terms of Lease Agreement, dated March 22, 2015, by and between Mintz K. Construction Company Ltd. (the “Landlord”), as
landlord, and Galmed Research and Development Ltd. (the “Company”), as tenant (the “Lease”).
The Lease
·
·
·
·
·
·
·
Premises Covered by the Lease: Approximately 356 square meters and 6 parking spaces (not marked), with an option to rent more parking spaces
subject to availability, located in 16 Tiomkin St., Tel Aviv, Israel (the “Premises”).
Permitted Use of Premises: Managing the Company’s and/or its parent company and/or its subsidiaries offices.
Term of Lease: March 22, 2015 to March 21, 2019, provided however that the Company has the an option to extend the initial term of the lease in
additional two years period from March 22, 2019 to March 21, 2021.
Fees: Monthly rental fees payable quarterly in an aggregate amount of NIS 49,128 plus VAT for the period between March 22, 2015 and March 21,
2017 (subject to a two months grace for the first two months of the lease term and an additional one month grace at the beginning of the second year
of the lease term), which shall be increased to a quarterly amount of NIS 51,090 plus VAT for the period between March 22, 2017 and March 21,
2019. The rental fees are linked to the Israeli consumer price index of March 2015.
During the option period, the rental fees will increase to a quarterly amount of NIS 70,761 plus VAT for the period between March 22, 2019 and
March 21, 2021.
Expenses: The Company bears all customary expenses associated with the use of the Premises, including, but not limited to, Premises’ management
fees.
Security: The Company provided the Landlord with (i) an autonomous bank guarantee of NIS 103,000; and (ii) during the performance of the
adjustment work an autonomous bank guarantee of NIS 100,000, both linked to the Israeli consumer price index.
Construction activities: Under the Lease, the Landlord reserved rights to perform construction activities on the Premises building on its behalf or by
other tenants, and the Company agreed to the above, provided such activities do not prevent reasonable access to the Premises.
· Modifications of Premises: The Company may modify the Premises to the extent such modifications are required for adjustment of the Premises for
the permitted use, at Company’s cost and subject to a Landlord’s prior written consent, entering applicable insurance and the provisions of the
Security detailed above, provided that such modifications shall be completed within 6 months of the execution of the Lease Agreement.
Additionally, the Company reserved the right to perform non-material and/or internal modifications to the Premises which are not related to the
Premises infrastructure or have implications on the Premises exterior.
Exhibit 4.9
English summary of Principal Terms of an Addendum to the Lease Agreement (dated March 22, 2015), entered on February 27, 2017, by and between Mintz
K. Construction Company Ltd. (the “Landlord”), as landlord, and Galmed Research and Development Ltd. (the “GRD”), as tenant (the “Addendum”).
The Addendum
·
·
·
·
·
·
Premises covered by the Addendum: Approximately 90 square meters for a space adjacent to the original premises covered under the Lease
Agreement (the “Additional Premises”). The Additional Premises together with the original premises shall add up to a total of 446 square meters
(the “Total Premises”).
Term of Lease: Notwithstanding the Lease period under the Lease Agreement, the term of the Total Premises shall be for a period of 25 months from
February 20, 2017 until March 21, 2019 (the “New Lease Term”), provided however that GRD shall have an option to extend the New Lease Term
in accordance with the terms of the Lease Agreement (the “Option”).
Fees: In addition to the fees paid under the Lease Agreement, the Company shall pay additional monthly rental fees in the amount of NIS 5,900 plus
VAT for the Additional Premises (the “Additional Rental Fee)”, which shall increase to NIS 6,600 during the Option period, if exercised. The
Additional Rental Fee is linked to the Israeli consumer price index of March 2015 and shall be paid on a quarterly basis together with the original
premises rental fees.
Expenses: GRD shall bear all customary expenses associated with the use of the Total Premises, including, but not limited to, Total Premises’
management fees and municipal tax.
Security: GRD shall provide the Landlord with (i) an autonomous bank guarantee of NIS 26,000; provided however that during the Option Period, if
exercised, the autonomous bank guarantee shall increase to NIS 29,000.
Sublease: GRD shall have the right to transfer or assign its rights in the Premises to a third party, provided that in such event the Landlord's rights
under the Lease and the Addendum thereof shall remain.
Exhibit 12.1
I, Allen Baharaff, certify that:
CERTIFICATION
1. I have reviewed this annual report on Form 20-F of Galmed Pharmaceuticals Ltd. (the “Company”);
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report;
4. The Company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for
the Company and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed
under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles;
the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(c) Evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about
(d) Disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the period
covered by the annual report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting;
and
5. The Company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting,
to the Company’s auditors and the audit committee of the Company’s board of directors (or persons performing the equivalent function):
are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s
internal control over financial reporting.
By:
/s/ Allen Baharaff
Allen Baharaff
President and Chief Executive Officer
Date: March 23, 2017
Exhibit 12.2
I, Yohai Stenzler, certify that:
CERTIFICATION
1. I have reviewed this annual report on Form 20-F of Galmed Pharmaceuticals Ltd. (the “Company”);
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report;
4. The Company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for
the Company and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed
under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about
the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the period
covered by the annual report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting;
and
5. The Company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting,
to the Company’s auditors and the audit committee of the Company’s board of directors (or persons performing the equivalent function):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which
are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s
internal control over financial reporting.
By:
/s/ Yohai Stenzler
Yohai Stenzler
Chief Financial Officer
Date: March 23, 2017
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 13.1
In connection with the annual report of Galmed Pharmaceuticals Ltd. (the “Company”) on Form 20-F for the period ending December 31, 2016, as filed with
the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned hereby certify that to the best of our knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operation of the Company.
By:
By:
/s/ Allen Baharaff
Allen Baharaff
President and Chief Executive Officer
/s/ Yohai Stenzler
Yohai Stenzler
Chief Financial Officer
Date: March 23, 2017
The certification set forth above is being furnished as an exhibit solely pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and is not being filed as
part of the annual report on Form 20-F for the period ended December 31, 2016, or as a separate disclosure document of the Company or the certifying
officers.