UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 20-F
(Mark One)
☐
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
☒
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
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: Not applicable
For the transition period from ____ to _____
Commission file number 001-35548
Kamada Ltd.
(Exact name of registrant as specified in its charter)
N/A
(Translation of Registrant’s name into English)
State of Israel
(Jurisdiction of incorporation or organization)
7 Sapir St.
Kiryat Weizmann Science Park
P.O Box 4081
Ness Ziona 7414002
Israel
(Address of principal executive offices)
Amir London, Chief Executive Officer
7 Sapir St., Kiryat Weizmann Science Park
P.O Box 4081, Ness Ziona 74140002, Israel
+972 8 9406472
(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 1.00 each
Name of Each Exchange on which Registered
The NASDAQ Stock Market LLC
Securities registered or to be registered pursuant to Section 12(g) of the Act. None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act. None
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.
As of December 31, 2016, the Registrant had 36,447,175 Ordinary Shares outstanding (excluding treasury shares).
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 report 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.
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 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
☒ 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.
Large accelerated filer ☐ (cid:0) Accelerated filer ☐(cid:0) 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 ☐(cid:0)
International Financing 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.
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).
Item 17 ☐ Item 18 ☐(cid:0)
☐ 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 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. Purchase 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
4
4
4
40
74
74
95
120
125
125
126
142
143
144
144
144
145
145
145
145
146
146
146
147
148
148
148
In this Annual Report on Form 20-F (“Annual Report”), unless the context indicates otherwise, references to “NIS” are to the legal currency of
Israel, “U.S. dollars,” “$” or “dollars” are to United States dollars, and the terms “we,” “us,” “our company,” “our,” and “Kamada” refer to Kamada
Ltd., along with its consolidated subsidiaries.
This Annual Report contains forward-looking statements that relate to future events or our future financial performance, which express the current
beliefs and expectations of our management. Such statements involve a number of known and unknown risks, uncertainties and other factors that could cause
our actual future results, performance or achievements to differ materially from any future results, performance or achievements expressed or implied by such
forward-looking statements. Forward-looking statements include all statements that are not historical facts and can be identified by words such as, but
without limitation, “believe,” “expect,” “anticipate,” “estimate,” “intend,” “plan,” “target,” “likely,” “will,” “would,” “could,” and similar expressions
or phrases. We have based these forward-looking statements largely on our management’s current expectations and future events and financial trends that we
believe may affect our financial condition, results of operation, business strategy and financial needs. Forward-looking statements include, but are not limited
to, statements about:
·
·
·
·
·
·
·
our expectation that the number of patients treated by our product "Glassia" will double by 2018 compared to the number of patients in
2014 and that our revenues will grow by approximately 30% by 2017 compared to our revenues for 2016 and that we will achieve our
revenue goal of $100 million by 2017;
our belief that our relationships with our strategic partners will lead to increased revenues and other benefits in the future and that such
relationships, including with Shire plc. (“Shire”), will continue without disruption;
our expectation that the minimum aggregate revenue for Glassia for the years 2017 to 2020 under our agreement with Shire will reach
approximately $237 million;
our ability to procure adequate quantities of plasma and fraction IV which are acceptable for use in our manufacturing processes from our
suppliers;
our ability to maintain compliance with government regulations and licenses;
our ability to identify growth opportunities for existing products and our ability to identify and develop new product candidates;
our belief that the market opportunity for Alpha-1 Antitrypsin (“AAT”) products will grow;
1
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
the various uses of AAT products to potentially be effective against various diseases, including GvHD, type-1 diabetes and lung
transplantations, as well as its ability to be used in connection with cystic fibrosis and bronchiectasis;
the beneficial characteristics of Inhaled AAT for AATD, which we believe may result in our increased profitability;
our belief that the potential world market for AAT products is significantly larger than current consumption indicates;
our belief that we will be able to continue to meet our customers' demand for AAT;
the timing of, and our ability to, obtain and/or maintain regulatory approvals for our products and new product candidates, the rate and
degree of market acceptance, and the clinical utility of our products;
the potential market opportunities for our products and product candidates;
our anticipation that we will receive marketing authorization for our inhaled formulation of AAT for treatment of AAT deficiency (“Inhaled
AAT for AATD") from the European Medicines Agency (the “EMA”) by the fourth quarter of 2017 and launch Inhaled AAT for AATD in
2018 in Europe;
our ability to receive marketing authorization for and to launch our KamRAB product for Prophylaxis treatment of rabies disease with the
U.S. Food and Drug Administration (the “FDA”) in the United States in 2017;
our anticipation to discuss and identify with the FDA, in the first half of 2017, the clinical and regulatory pathway for registration in the
United States of our Inhaled AAT for AATD;
our plan to further develop the GvHD indication including initiation of a Phase II/III study in 2017 in Europe;
our expectation that we will receive topline results from our clinical trial of AAT by intravenous for the treatment of newly diagnosed Type-1
diabetes in the second half of 2017;
our plan to further develop our recombinant AAT products;
our expectations regarding the timing of the beginning of the production of Glassia by Shire;
our anticipation that we will generate higher revenues as we diversify our revenue base by increasing the number of products we offer;
our expectations regarding the future breakdown of our segments by revenue;
our expectations regarding the potential actions or inactions of existing and potential competitors of our products;
legislation or regulation in countries where we sell our products that affect product pricing, reimbursement, access or distribution
channels;
the impact of geographic and product mix on our total revenues and gross profit;
our ability to obtain and maintain protection for the intellectual property relating to or incorporated into our technology and products; and
the impact of our research and development expenses as we continue developing product candidates.
2
All forward-looking statements involve risks, assumptions and uncertainties. You should not rely upon forward-looking statements as predictors of
future events. The occurrence of the events described, and the achievement of the expected results, depend on many events, some or all of which may not be
predictable or within our control. Actual results may differ materially from expected results. See the sections “Item 3. Key Information — D. Risk Factors”
and “Item 5. Operating and Financial Review and Prospectus”, as well as elsewhere in this Annual Report, for a more complete discussion of these risks,
assumptions and uncertainties and for other risks and uncertainties. These risks, assumptions and uncertainties are not necessarily all of the important
factors that could cause actual results to differ materially from those expressed in any of our forward-looking statements. Other unknown or unpredictable
factors also could harm our results.
All of the forward-looking statements we have included in this Annual Report are based on information available to us on the date of this Annual
Report. We undertake no obligation, and specifically decline any obligation, to update publicly or revise any forward-looking statements, whether as a result
of new information, future events or otherwise. In light of these risks, uncertainties and assumptions, the forward-looking events discussed in this Annual
Report might not occur.
The audited consolidated financial statements for the years ended December 31, 2016, 2015 and 2014 in this Annual Report have been prepared in
accordance with the international financial reporting standards (“IFRS”) as issued by the international accounting standards board (“IASB”). None of the
financial information in this Annual Report has been prepared in accordance with accounting principles generally accepted in the United States (“U.S.
GAAP”).
Unless otherwise noted, NIS amounts presented in this Annual Report are translated at the rate of $1.00 = NIS 3.845, the exchange rate published by
the Bank of Israel as of December 31, 2016.
3
PART I
Item 1. Identity of Directors, Senior Management and Advisers
Not applicable.
Item 2. Offer Statistics and Expected Timetable
Not applicable.
Item 3. Key Information
A. Selected Financial Data
The following table summarizes our consolidated financial data. We have derived the summary consolidated statements of operations data for the
years ended December 31, 2016, 2015 and 2014 and the consolidated balance sheets data as of December 31, 2016 and 2015 from our audited consolidated
financial statements included elsewhere in this Annual Report. We have derived the summary consolidated statements of operations data for the years ended
December 31, 2013 and 2012 and the summary consolidated balance sheet data as of December 31, 2014, 2013 and 2012 from our audited consolidated
financial statements not included in this Annual Report.
We have included, in our opinion, all adjustments, consisting only of normal recurring adjustments that we consider necessary for a fair presentation
of the financial information set forth in those summary consolidated statements. Our historical results are not necessarily indicative of the results that should
be expected in the future, and our interim results are not necessarily indicative of the results that should be expected for the full year.
4
The summary of our consolidated financial data set forth below should be read together with our consolidated financial statements and the related
notes, as well as the section entitled “Item 5. Operating and Financial Review and Prospects,” included elsewhere in this Annual Report.
Consolidated Statements of Operations Data:
Revenues from Proprietary Products
Revenues from Distribution
Total revenues
$
Cost of revenues from Proprietary Products
Cost of revenues from Distribution
Total cost of revenues
Gross profit
Research and development expenses
Selling and marketing expenses
General and administrative expenses
Operating income (loss)
Financial income
Income (expense) in respect of currency exchange and
2016
55,958 $
21,536
77,494
37,433
18,411
55,844
21,650
16,245
3,243
7,643
(5,481)
469
translation differences and derivatives instruments, net
Income (expense) in respect of revaluation of warrants to fair
value
127
625
-
-
2015
Year Ended December 31,
2014
(in thousands, except per share data)
2013
42,952 $
26,954
69,906
44,389 $
26,676
71,065
50,658 $
19,965
70,623
30,468
23,640
54,108
15,798
16,530
3,652
7,040
(11,424)
463
(934)
(11,270)
-
(11,270) $
(11,270) $
32,617
23,406
56,023
15,042
16,030
2,898
7,593
(11,479)
404
-
-
(2,086)
(13,161)
52
(13,213) $
(13,213) $
(0.31) $
(0.31) $
(0.37) $
(0.37) $
27,104
17,112
44,216
26,407
12,745
2,100
7,862
3,700
278
(369)
-
(3,142)
467
24
443 $
443 $
0.01 $
0.01 $
2012
46,445
26,230
72,675
26,911
23,071
49,982
22,693
11,821
1,853
4,781
4,238
578
(100)
(576)
(3,357)
783
523
260
260
0.01
0.01
(126)
(5,011)
1,722
(6,733) $
(6,733) $
(0.18) $
(0.18) $
Financial expense
Income (loss) before taxes on income
Taxes on income
Net income (loss)
Income (loss) attributable to equity holders
Income (loss) per share attributable to equity holders:
Basic
Diluted
Weighted-average number of ordinary shares used to
compute income (loss) per share attributable to equity
holders:
Basic
Diluted
Consolidated Statements of Cash Flows:
Cash flows from operating activities
Cash flows from investing activities
Cash flows from financing activities
Consolidated Balance Sheet Data:
Cash, cash equivalents, restricted cash and short-term
investments
Trade receivables
Working capital (1)
Total assets
Total liabilities
Total shareholders’ equity
Other Data:
Adjusted net income (loss)(2) (3)
Adjusted EBITDA(2)
____________
$
$
$
$
36,418,833
36,245,813
35,971,335
32,714,631
28,078,996
36,418,833
36,245,813
35,971,335
33,385,651
28,686,636
1,897 $
1,637
1,490
(13,979) $
11,253
(6,355)
(9,918) $
(26,819)
(7,640)
(3,854) $
(3,903)
49,208
(8,262)
(2,432)
2,966
28,632 $
19,788
49,871
99,696
32,953
66,743
28,306 $
23,071
57,655
101,992
29,485
72,507
51,896 $
17,514
66,206
119,140
38,723
80,417
74,177 $
17,882
85,108
139,379
49,409
89,970
33,795
13,861
40,651
89,114
60,721
28,393
$
$
(5,663) $
(909) $
(9,363) $
(6,290) $
(9,462) $
(4,940) $
9,414 $
3,156 $
2,103
8,549
(1)
(2)
Working capital is defined as total current assets minus total current liabilities.
We present adjusted net income (loss) and adjusted EBITDA because we use these non-IFRS financial measures to assess our operational
performance, for financial and operational decision-making, and as a means to evaluate period-to-period comparisons on a consistent basis.
Management believes these non-IFRS financial measures are useful to investors because: (1) they allow for greater transparency with respect to
key metrics used by management in its financial and operational decision-making; and (2) they exclude the impact of non-cash items that are not
directly attributable to our core operating performance and that may obscure trends in the core operating performance of the business.
5
Non-IFRS financial measures have limitations as an analytical tool and should not be considered in isolation from, or as a substitute for, our
IFRS results. We expect to continue reporting non-IFRS financial measures, adjusting for the items described below, and we expect to continue
to incur expenses similar to certain of the non-cash, non-IFRS adjustments described below. Accordingly, unless otherwise stated, the exclusion
of these and other similar items in the presentation of non-IFRS financial measures should not be construed as an inference that these items are
unusual, infrequent or non-recurring. Adjusted net income (loss) and adjusted EBITDA are not recognized terms under IFRS and do not purport
to be an alternative to IFRS net income (loss) as an indicator of operating performance or any other IFRS measure. Moreover, because not all
companies use identical measures and calculations, the presentation of adjusted net income (loss) or adjusted EBITDA may not be comparable
to other similarly titled measures of other companies.
Adjusted net income (loss) is defined as net income (loss), plus non-cash share-based compensation expenses and plus a one-time management
compensation payment associated with our successful U.S. initial public offering. Our management believes that excluding non-cash charges
related to share-based compensation provides useful information to investors because of its non-cash nature, varying available valuation
methodologies among companies and the subjectivity of the assumptions and the variety of award types that a company can use under the
relevant accounting guidance, which may obscure trends in our core operating performance. Our management believes that excluding the one-
time management compensation payment associated with our successful U.S. initial public offering is useful to investors because of the
extraordinary, non-recurring nature of the expense. Similarly, our management believes that excluding the non-cash income (expense) in respect
of revaluation of our warrants to fair value is useful to investors because the valuation of our warrants is based on a number of subjective
assumptions, the amount of the loss or gain is derived from market forces outside management’s control, and it enables investors to compare our
performance with other companies that have different capital structures.
(3)
Adjusted EBITDA is defined as net income (loss), plus income tax expense, plus financial expense, net, plus depreciation and amortization
expense, plus non-cash share-based compensation expenses, plus or minus income or expense in respect of exchange and translation differences
and derivatives instruments not designated as hedging, and plus one-time management compensation payment. Management believes that
adjusted EBITDA provides useful information to investors for the same reasons discussed above for adjusted net income (loss).
The following tables set forth adjusted net income (loss) and adjusted EBITDA and also reconcile these figures to the IFRS measure net income
(loss):
Net income (loss)
Non-cash share-based compensation expenses
One-time management compensation payment
Expense (income) in respect of revaluation of warrants to fair
value
Adjusted net income (loss)
$
$
2016
2015
Year Ended December 31,
2014
(in thousands)
2013
2012
(11,270) $
1,907
-
(13,213) $
3,751
-
-
(9,363) $
-
(9,462) $
443 $
1,327
1,386
-
3,156 $
260
1,267
-
576
2,103
(6,733) $
1,071
-
-
(5,663) $
6
2016
2015
Year Ended December 31,
2014
(in thousands)
2013
2012
Net income (loss)
Income tax expense
Financial expense, net
Depreciation and amortization expense
Non-cash share-based compensation expenses
Income (expense) in respect of translation differences and
derivatives instruments, net
Expense (income) in respect of revaluation of warrants fair
value
One-time management compensation payment
Adjusted EBITDA
$
$
(6,733) $
1,722
(343)
3,501
1,071
(11,270) $
-
471
3,227
1,907
(13,213) $
52
1,682
2,788
3,751
443 $
24
2,864
3,001
1,327
(127)
(625)
-
369
-
-
(909) $
-
-
(6,290) $
-
-
(4,940) $
-
1,386
9,414 $
260
523
2,779
3,044
1,267
100
576
-
8,549
B. Capitalization and Indebtedness
Not applicable.
C. Reasons for the Offer and Use of Proceeds
Not applicable.
D. Risk Factors
You should consider carefully the risks and uncertainties described below, together with all of the other information in this Annual Report, including
the consolidated financial statements and the related notes included elsewhere in this Annual Report. The risks and uncertainties described below are not the
only ones we face. Additional risks and uncertainties that we are unaware of, or that we currently believe are not material, may also become important
factors that adversely affect our business. If any of the following risks actually occurs, our business, financial condition, results of operations, and future
prospects could be materially and adversely affected.
Our business is currently highly concentrated on our flagship product, Glassia, and our largest geographic region, the United States. Any adverse market
event with respect to such product or the United States would have a material adverse effect on our business.
We rely heavily upon the sales of our AAT intravenous product, Glassia. Revenue from our intravenous AAT deficiency (“AATD”) products
comprised approximately 56%, 43%, and 42% of our total revenues for the years ended December 31, 2016, 2015 and 2014 respectively. If Glassia were to
lose significant sales, or was substantially or completely displaced in the market, we would lose a significant and material source of our total revenues.
Similarly, if Glassia were to become the subject of litigation and/or an adverse governmental ruling requiring us to cease the manufacturing, export or sales of
Glassia, our business would be adversely affected.
We have a partnership arrangement with Shire. Shire is a Jersey-registered, Irish-headquartered, originating in the United Kingdom, global specialty
biopharmaceutical public company listed on the Nasdaq and London Stock Exchanges. The partnership agreement was originally executed in 2010 with
Baxter International Inc. ("Baxter"). During 2015, Baxter assigned all its rights under the partnership agreement to Baxalta US Inc. ("Baxalta"), an
independent public company which spun- off from Baxter. In 2016, Shire has completed the acquisition of Baxalta, and as a result, all Baxalta's rights under
the partnership agreement have been assigned to Shire. Pursuant to such partnership arrangement, Shire is the sole distributor of Glassia in the United States,
Canada, Australia and New Zealand. Revenue derived from our partnership with Shire, which consists of sales of Glassia and milestone revenue, accounted
for approximately 52%, 37% and 36% of our total revenues in the years ended December 31, 2016, 2015 and 2014, respectively. Additionally, we depend
upon Shire for the supply of fraction IV plasma for our production of Glassia to be sold in the United States. If our relationship with Shire were to deteriorate,
or if Shire’s sales of Glassia were to decline, our business would be adversely affected. See “—In our Proprietary Products segment, we currently rely on one
of our strategic partners that accounts for a significant portion of our total sales and our distribution plan for our principal product candidate relies on another
strategic partner, and any disruption to our relationships with these distributors would have an adverse effect on our results of operations and profitability.”
7
We rely heavily upon sales from the United States, which comprised approximately 52%, 38% and 37% of our total revenues for the years ended
December 31, 2016, 2015 and 2014, respectively. If our U.S. sales were significantly impacted by either material changes to government or private payor
reimbursement, by other regulatory developments, by competition or other factors, then our business would be adversely affected.
In our Proprietary Products segment, we currently rely on one of our strategic partners that accounts for a significant portion of our total sales and our
distribution plan for our principal product candidate relies on another strategic partner, and any disruption to our relationships with these distributors
would have an adverse effect on our results of operations and profitability.
Pursuant to our partnership arrangement with Shire, Shire is the sole distributor of Glassia in the United States, Canada, Australia and New Zealand.
Sales to Shire accounted for approximately 52%, 37% and 36% of our total revenues in the years ended December 31, 2016, 2015 and 2014, respectively. We
also depend upon Shire for the supply of fraction IV plasma for our production of Glassia to be sold in the United States. See “—We would become supply-
constrained and our financial performance would suffer if we were unable to obtain adequate quantities of source plasma or plasma derivatives or specialty
ancillary products approved by the FDA, the EMA or the regulatory authorities in Israel, or if our suppliers were to fail to modify their operations to meet
regulatory requirements.”
Currently, revenue derived from our relationship with Shire consists of sales of Glassia, which we incur cost of revenues to produce, and milestone
revenue. Pursuant to the Exclusive Manufacturing, Supply and Distribution Agreement, as amended, after 2020, Shire has no obligation to purchase a
minimum amount of Glassia; however, Shire’s failure to purchase a specified minimum quantity of Glassia over a period of 24 consecutive months beginning
in 2016 until the expiration of the agreement, provides us with the right to terminate the agreement. Additionally, Shire is not expected to begin producing
Glassia itself before 2021 at the earliest, at which point it will pay us royalties. While we would generate higher margins from royalties, as we would not
incur cost of revenues, we will receive lower revenues per unit sold. We plan to replace that revenue by producing other products, including for sales in
Europe, and through increases in the volume of units sold. If we cannot obtain regulatory approval for such other products and make such sales in Europe or
were unable to increase sales of our other products generally, our revenues would be adversely impacted, and our operating results would be adversely
impacted as we would continue to incur fixed costs relating to our manufacturing facility. If our relationship with Shire were to deteriorate, our sales through
this channel and our supply of fraction IV could be adversely affected.
In addition, for Inhaled AAT for AATD, we intend to rely on our relationship with Chiesi Farmaceutici (“Chiesi”) for the distribution of such product
in Europe and to obtain reimbursement for such product in Europe and we rely on PARI GmbH (“PARI”) for the supply of the custom-designed nebulizer
through which Inhaled AAT is administered. Chiesi’s failure to adequately distribute or obtain reimbursement, or failure of PARI to supply the custom-
designed nebulizer, would have a material adverse effect on our expected profitability from sales of Inhaled AAT for AATD in Europe.
If we fail to maintain our relationship with Shire or Chiesi, we could face significant costs in finding a replacement distributor for the markets Shire
and Chiesi serve for Glassia and Inhaled AAT for AATD, respectively, and a replacement supplier of fraction IV for Glassia. Delays in establishing a
relationship with a new distributor and supplier could lead to a decrease in our sales and a deterioration in our market share compared to one or more of our
competitors. Any of the foregoing developments could have an adverse effect upon our sales, margins and profitability.
8
If we are unable to successfully introduce new products and indications or fail to keep pace with advances in technology, our business, financial
condition and results of operations may be adversely affected.
We operate in highly innovative businesses. We currently rely on sales of Glassia for the treatment of AATD for a significant portion of our total
revenues. However, our continued growth depends in large part on our ability to develop and obtain regulatory approvals of new products, new enhancements
and/or new indications for our products and product candidates. In particular, obtaining marketing approval of our Inhaled AAT for AATD from the EMA is
critical to our business plan. However, obtaining regulatory approval in any jurisdiction, including from the EMA or the FDA, involves significant uncertainty
and may be time consuming and require significant expenditures. See “—Research and development efforts invested in our pipeline of specialty and other
products may not achieve expected results.” We have experienced delays at various stages of obtaining regulatory approval in the past, and failure to obtain
regulatory approval of the Inhaled AAT for AATD product or of any of our other product candidates or additional indications in a timely manner or at all,
would materially adversely impact our business prospects. See also “We may not be able to commercialize our product candidates in development for
numerous reasons.”
The development of innovative products and technologies that improve efficacy, safety, patients’ and clinicians’ ease of use and cost-effectiveness,
involve significant technical and business risks. The success of new product offerings will depend on many factors, including our ability to properly anticipate
and satisfy customer needs, adapt to new technologies, obtain regulatory approvals on a timely basis, demonstrate satisfactory clinical results, manufacture
products in an economic and timely manner, engage qualified distributors for different territories and establish our sales force to sell our products, and
differentiate our products from those of our competitors and establish our sales force to sell our products. If we cannot successfully introduce new products,
adapt to changing technologies or anticipate changes in our current and potential customers’ requirements, our products may become obsolete and our
business could suffer.
Research and development efforts invested in our pipeline of specialty and other products may not achieve expected results.
We must invest increasingly significant resources to develop specialty products through our own efforts and through collaboration with third parties
in the form of partnerships or otherwise. The development of specialty pharmaceutical products involves high-level processes and expertise and carries a
significant risk of failure. For example, the time from the pre-clinical phase to the commercial launch of a specialty pharmaceutical product can be 15 years or
longer, and involves multiple stages: not only intensive preclinical and clinical testing, but also highly complex, lengthy and expensive regulatory approval
processes, which can vary from country to country. The longer it takes to develop a pharmaceutical product, the longer it may take for us to recover our
development costs and generate profits, and, depending on various factors, we may not be able to ever recover such costs or generate profits.
During each stage of development, we may encounter obstacles that delay the development process and increase expenses, leading to significant
risks that we will not achieve our goals and may be forced to abandon a potential product in which we have invested substantial amounts of time and money.
These obstacles may include the following: preclinical-study failures; difficulty in enrolling patients in clinical trials; delays in completing formulation and
other work needed to support an application for approval; adverse reactions or other safety concerns arising during clinical testing; insufficient clinical trial
data to support the safety or efficacy of a product candidate; other failures to obtain, or delays in obtaining, the required regulatory approvals for a product
candidate or the facilities in which a product candidate is manufactured; regulatory restrictions which may delay or block market penetration and the failure to
obtain sufficient intellectual property rights for our products.
Because of the amount of time and expense required to be invested in augmenting our pipeline of specialty and other products, we may seek
partnerships or joint ventures with third parties from time to time, and consequently face the risk that some or all of these third parties may fail to perform
their obligations, or that the resulting arrangement may fail to produce the levels of success that we are relying on to meet our revenue and profit goals.
9
We rely on third parties to conduct our preclinical and clinical trials. The failure of these third parties to successfully carry out their contractual duties or
meet expected deadlines could substantially harm our business because we may not obtain regulatory approval for, or commercialize, our product
candidates in a timely manner or at all.
We rely upon third-party contractors, such as university researchers, physicians and contract research organizations (“CROs”), to conduct, monitor
and manage data for our current and future preclinical and clinical programs. We expect to continue to rely on these parties for execution of our preclinical
and clinical trials, and we control only certain aspects of their activities. Nevertheless, we are responsible for ensuring that each of our studies is conducted in
accordance with the applicable protocol and legal, regulatory and scientific standards, and our reliance on such third-party contractors does not relieve us of
our regulatory responsibilities. With respect to clinical trials, we and our CROs are required to comply with current Good Clinical Practices ("GCP"), which
are regulations and guidelines enforced by the FDA, the EMA and comparable foreign regulatory authorities for all of our products in clinical development.
Regulatory authorities enforce these GCP through periodic inspections of trial sponsors, principal investigators and trial sites. If we or any of our CROs fail to
comply with applicable GCP, the clinical data generated in our clinical trials may be deemed unreliable and the FDA or comparable foreign regulatory
authorities may require us to perform additional clinical trials before approving our marketing applications. We cannot assure you that upon inspection by a
given regulatory authority, such regulatory authority will determine that any of our clinical trials comply with GCP requirements.
These third-party contractors are not our employees, we cannot control whether or not they devote sufficient time and resources to our ongoing
clinical, nonclinical and preclinical programs, and except for remedies available to us under our agreements with such third-party contractors, we may be
unable to recover losses that result from any inadequate work on such programs. If such third-party contractors do not successfully carry out their contractual
duties or obligations or meet expected deadlines or if the quality or accuracy of the data they obtain is compromised due to the failure to adhere to our clinical
protocols, regulatory requirements or for other reasons, our development efforts and clinical trials may be extended, delayed or terminated and we may not be
able to obtain regulatory approval for or successfully commercialize our product candidates. As a result, our results of operations and the commercial
prospects for our product candidates would be harmed, our costs could increase and our ability to generate revenues could be delayed. To the extent we are
unable to successfully identify and manage the performance of such third-party contractors in the future, our business may be adversely affected.
We may not be able to commercialize our product candidates in development for numerous reasons.
Before obtaining regulatory approval for the sale of our product candidates, including Inhaled AAT for AATD, or for the marketing of existing
products for new indications, we must conduct, at our own expense, extensive preclinical tests to demonstrate the safety of our product candidates in animals
and clinical trials to demonstrate the safety and efficacy of our product candidates in humans. We cannot predict how long the approval processes of the FDA,
the EMA, the regulatory authorities in Israel or any other applicable regulatory authority or agency for any of our product candidates will take or whether any
such approvals ultimately will be granted. The FDA, the EMA, the regulatory authorities in Israel and other regulatory agencies have substantial discretion in
the relevant drug approval process over which they have authority, and positive results in preclinical testing or early phases of clinical studies offer no
assurance of success in later phases of the approval process. The approval process varies from country to country and the requirements governing the conduct
of clinical trials, product manufacturing, product licensing, pricing and reimbursement vary greatly from country to country.
10
Preclinical and clinical testing is expensive, is difficult to design and implement, can take many years to complete and is uncertain as to outcome. A
failure of one or more of our clinical trials can occur at any stage of testing. We have experienced unforeseen events that have delayed our ability to receive
regulatory approval for certain of our product candidates, and may in the future experience similar or other unforeseen events during, or as a result of,
preclinical testing or the clinical trial process that could delay or prevent our ability to receive regulatory approval or commercialize our product candidates,
including that:
·
·
·
·
·
·
·
·
·
·
·
·
·
·
regulators may not authorize us to commence or conduct a clinical trial within a country or at a prospective trial site;
the regulatory requirements for product approval may not be explicit, may evolve over time and may diverge among jurisdictions;
delays may occur in obtaining our clinical materials;
our preclinical tests or clinical trials may produce negative or inconclusive results, and we may decide, or regulators may require us, to
conduct additional preclinical testing or clinical trials or to abandon strategic projects;
the number of patients required for our clinical trials may be larger than we anticipate, enrollment in our clinical trials may be slower or
more difficult than we anticipate or participants may withdraw from our clinical trials at higher rates than we anticipate;
delays may occur in reaching agreement on acceptable clinical trial agreement terms with prospective sites or obtaining institutional review
board approval;
our strategic partners may not achieve their clinical development goals and/or comply with their relevant regulatory requirements;
our third-party contractors, such as contract research organizations, may fail to comply with regulatory requirements or meet their
contractual obligations to us;
we may be forced to suspend or terminate our clinical trials if the participants are being exposed to unacceptable health risks or if any
participant experiences an unexpected serious adverse event;
regulators or institutional review boards may require that we hold, suspend or terminate clinical research for various reasons, including
noncompliance with regulatory requirements;
undetected or concealed fraudulent activity by a clinical researcher, if discovered, could preclude the submission of clinical data prepared
by that researcher, lead to the suspension or substantive scientific review of one or more of our marketing applications by regulatory
agencies, and result in the recall of any approved product distributed pursuant to data determined to be fraudulent;
the cost of our clinical trials may be greater than we anticipate;
an audit of preclinical or clinical studies by the FDA, the EMA, the regulatory authorities in Israel or other regulatory authorities may reveal
noncompliance with applicable regulations, which could lead to disqualification of the results of such studies and the need to perform
additional studies; and
our product candidates may not achieve the desired clinical benefits or may cause undesirable side effects, or the product candidates may
have other unexpected characteristics.
11
If we are required to conduct additional clinical trials or other testing of our product candidates beyond those that we contemplate, if we are unable
to successfully complete our clinical trials or other testing, if the results of these trials or tests are not positive or are only modestly positive or if safety
concerns arise, we may:
·
·
·
·
·
·
·
·
be delayed in obtaining regulatory or marketing approval for our product candidates;
be unable to obtain regulatory and marketing approval;
decide to halt the clinical trial or other testing;
be required to conduct additional trials under a conditional approval;
be unable to obtain reimbursement for our products in all or some countries;
only obtain approval for indications that are not as broad as we initially intend;
have the product removed from the market after obtaining marketing approval from the FDA, the EMA, the regulatory authorities in Israel
or other regulatory authorities; and
be delayed in, or prevented from, the receipt of clinical milestone payments from our strategic partners.
Our product development costs will also increase if we experience delays in testing or approvals. There can be no assurance that any preclinical test
or clinical trial will begin as planned, will not need to be restructured or will be completed on schedule, if at all. Because we generally apply for patent
protection for our product candidates during the development stage, significant preclinical or clinical trial delays also could lead to a shorter patent protection
period during which we may have the exclusive right to commercialize our product candidates or could allow our competitors to bring products to market
before we do, impairing our ability to commercialize our products or product candidates. For example, in the past, we have experienced delays in the
commencement of clinical trials, such as a delay in patient enrollment for our clinical trials in Europe for Inhaled AAT for AATD and a delay in receiving
approval for the commencement of Phase II trials in the United States for Inhaled AAT for AATD until further preclinical testing results were submitted.
Even if preclinical trials are successful, we still may be unable to commercialize a product because of difficulties in obtaining regulatory approval for
its production process or problems in scaling that process to commercial production.
Pre-clinical studies, including studies of our product candidates in animal models of disease, may not accurately predict the result of human clinical
trials of those product candidates. In particular, new indications for our AAT products that are entering into Phase I and II clinical trials may be found not to
be safe and/or efficacious when studied further in Phase III trials. To satisfy FDA or other applicable regulatory approval standards for the commercial sale of
our product candidates, we must demonstrate in adequate and controlled clinical trials that our product candidates are safe and effective. Success in early
clinical trials, including Phase II trials, does not ensure that later clinical trials will be successful. Initial results from Phase I and II clinical trials also may not
be confirmed by later analysis or subsequent larger clinical trials. A number of companies in the pharmaceutical industry, including us, have suffered
significant setbacks in advanced clinical trials, even after obtaining promising results in earlier clinical trials.
We cannot provide assurance that any products we may seek to develop or are currently developing, such as Inhaled AAT for AATD, will ever be
successfully commercialized. If such products are not eventually commercialized, the significant expense and lack of associated revenue could materially
adversely affect our business.
12
We may not obtain orphan drug status for our products, or we may lose orphan drug designations, which would have a material adverse effect on our
business.
One of the incentives provided by an orphan drug designation is market exclusivity for seven years in the United States and ten years in the
European Union for the first product in a class approved for the treatment of a rare disease. Although many of our products and product candidates, including
Inhaled AAT for AATD, have been granted the designation of an orphan drug, we may not be the first product licensed for the treatment of particular rare
diseases in the future or our approved indication may vary from that subject to the orphan designation. In such cases, then with limited exception, we would
not be able to take advantage of market exclusivity and instead another sponsor would receive such exclusivity.
Additionally, although the marketing exclusivity of an orphan drug would prevent other sponsors from obtaining approval of the same drug
compound for the same indication, such exclusivity would not apply in the case that a subsequent sponsor could demonstrate clinical superiority or a market
shortage occurs and would not prevent other sponsors from obtaining approval of the same compound for other indications or the use of other types of drugs
for the same use as the orphan drug. In the event we are unable to fill demand for any orphan drug, it is possible that the FDA or the EMA may view such
unmet demand as a market shortage, which could impact our market exclusivity.
The FDA and the EMA may also, in the future, revisit any orphan drug designation that they have respectively conferred upon a drug and retain the
ability to withdraw the relevant designation at any time. Additionally, the U.S. Congress has considered, and may consider in the future, legislation that would
restrict the duration or scope of the market exclusivity of an orphan drug, and, thus, we cannot be sure that the benefits to us of the existing statute in the
United States will remain in effect.
If we lose our orphan drug designations or fail to obtain such designations for our new products and product candidates, our ability to successfully
market our products could be significantly affected, resulting in a material adverse effect on our business and results of operations.
The commercial success of the products that we may develop, if any, will depend upon the degree of market acceptance by physicians, patients, healthcare
payors, opinion leaders, patients’ organizations and others in the medical community that any such product obtains.
Any products that we bring to the market may not gain market acceptance by physicians, patients, healthcare payors, opinion leaders, patients’
organizations and others in the medical community. If these products do not achieve an adequate level of acceptance, we may not generate material product
revenue and we may not sustain profitability. The degree of market acceptance of our product candidates, if approved for commercial sale, will depend on a
number of factors, some of which are beyond our control, including:
·
·
·
·
·
·
the prevalence and severity of any side effects;
the efficacy, potential advantages and timing of introduction to the market of alternative treatments;
our ability to offer our product candidates for sale at competitive prices;
relative convenience and ease of administration of our products;
the willingness of physicians to prescribe our products;
the willingness of patients to use our products;
13
·
·
the strength of marketing and distribution support; and
third-party coverage or reimbursement.
If we are not successful in achieving market acceptance for any new products that we have developed and that have been approved for commercial
sale, we may be unable to recover the large investment we will have made and have committed ourselves to making in research and development efforts and
our growth strategy will be adversely affected.
Our products involve biological intermediates that are susceptible to contamination, which could adversely affect our operating results.
Plasma and its derivatives, such as fraction IV, are raw materials that are susceptible to damage and contamination and may contain microorganisms
that cause diseases in humans, commonly known as human pathogens, any of which would render such materials unsuitable as raw material for further
manufacturing. Almost immediately after collection from a donor, plasma and plasma derivatives must be stored and transported at temperatures that are at
least -20 degrees Celsius (-4 degrees Fahrenheit). Improper storage or transportation of plasma or plasma derivatives by us or third-party suppliers may
require us to destroy some of our raw material. In addition, plasma and plasma derivatives are also suitable for use only for certain periods of time once
removed from storage. If unsuitable plasma or plasma derivatives are not identified and discarded prior to release to our manufacturing processes, it may be
necessary to discard intermediate or finished products made from such plasma or plasma derivatives, or to recall any finished product released to the market,
resulting in a charge to cost of goods sold and harm to our brand and reputation. Furthermore, if we distribute plasma-derived protein therapeutics that are
produced from unsuitable plasma because we have not detected contaminants or impurities, we could be subject to product liability claims and our reputation
would be adversely affected.
Despite overlapping safeguards, including the screening of donors and other steps to remove or inactivate viruses and other infectious disease-
causing agents, the risk of transmissible disease through plasma-derived protein therapeutics cannot be entirely eliminated. If a new infectious disease was to
emerge in the human population, the regulatory and public health authorities could impose precautions to limit the transmission of the disease that would
impair our ability to manufacture our products. Such precautionary measures could be taken before there is conclusive medical or scientific evidence that a
disease poses a risk for plasma-derived protein therapeutics. In recent years, new testing and viral inactivation methods have been developed that more
effectively detect and inactivate infectious viruses in collected plasma. There can be no assurance, however, that such new testing and inactivation methods
will adequately screen for, and inactivate, infectious agents in the plasma or plasma derivatives used in the production of our plasma-derived protein
therapeutics. Additionally, this could trigger the need for changes in our existing inactivation and production methods, including the administration of new
detection tests, which could result in delays in production until the new methods are in place, as well as increased costs that may not be readily passed on to
our customers.
Plasma and plasma derivatives can also become contaminated through the manufacturing process itself, such as through our failure to identify and
purify contaminants through our manufacturing process or failure to maintain a high level of sterility within our manufacturing facilities.
Once we have manufactured our plasma-derived protein therapeutics, they must be handled carefully and kept at appropriate temperatures. Our
failure, or the failure of third parties that supply, ship, store or distribute our products, to properly care for our plasma-derived products, may result in the
requirement that such products be destroyed.
While we expect to write off small amounts of work-in-process inventories in the ordinary course of business because of the complex nature of
plasma and plasma derivatives, our processes and our plasma-derived protein therapeutics, unanticipated events may lead to write-offs and other costs
materially in excess of our expectations. We have, in the past, experienced situations that have caused us to write off the value of our products. For example,
in 2014 we had to discard a material amount of inventory that did not pass our inspections due to deviations in the production process that created a higher
risk of contamination or that had a short shelf life. Such write-offs and other costs could materially adversely affect our operating results. Furthermore,
contamination of our plasma-derived protein therapeutics could cause consumers or other third parties with whom we conduct business to lose confidence in
the reliability of our manufacturing procedures, which could materially adversely affect our sales and operating results.
14
Our ability to continue manufacturing and distributing our plasma-derived protein therapeutics depends on our continued adherence to current Good
Manufacturing Practice regulations.
The manufacturing processes for our products are governed by detailed written procedures and regulations that set forth current Good Manufacturing
Practice standards (“cGMP”) requirements for blood products, including plasma and plasma derivative products. Failure to adhere to established procedures
or regulations, or to meet a specification set forth in cGMP requirements, could require that a product or material be rejected and destroyed. There are
relatively few opportunities for us to rework, reprocess or salvage nonconforming materials or products. Our manufacturing processes and facilities are not
currently approved by the EMA, and we will need to obtain such approval prior to beginning manufacture of products (including Inhaled AAT for AATD) to
be marketed and sold in Europe. Any failure in cGMP inspection will affect marketing in other territories, including the U.S. and Israel.
Our adherence to cGMP regulations and the effectiveness of our quality control systems are periodically assessed through inspections of our
manufacturing facility in Beit Kama, Israel by the FDA and regulatory authorities of other countries. Such inspections could result in deficiency citations,
which would require us to take action to correct those deficiencies to the satisfaction of the applicable regulatory authorities. If serious deficiencies are noted
or if we are unable to prevent recurrences, we may have to recall products or suspend operations until appropriate measures can be implemented. The FDA
could also stop the import of products into the United States if there are potential deficiencies. We are required to report certain deviations from procedures to
the FDA. Even if we determine that the deviations were not material, the FDA could require us to take certain measures to address the deviations. Since
cGMP reflects ever-evolving standards, we regularly need to update our manufacturing processes and procedures to comply with cGMP. These changes may
cause us to incur additional costs and may adversely impact our profitability. For example, more sensitive testing assays (if and when they become available)
may be required or existing procedures or processes may require revalidation, all of which may be costly and time-consuming and could delay or prevent the
manufacturing of a product or launch of a new product.
The biologic properties of plasma and plasma derivatives are variable, which may adversely impact our levels of product yield from our plasma or plasma
derivative supply.
Due to the nature of plasma, there will be variations in the biologic properties of the plasma or plasma derivatives we purchase that may result in
fluctuations in the obtainable yield of desired fractions, even if cGMP is followed. Lower yields may limit production of our plasma-derived protein
therapeutics because of capacity constraints. If these batches of plasma with lower yields impact production for extended periods, we may not be able to
fulfill orders on a timely basis and the total capacity of product that we are able to market could decline and our cost of goods sold could increase, thus
reducing our profitability.
Usage of our products may lead to serious and unexpected side effects, which could materially adversely affect our business and may, among other
factors, lead to our products being recalled and our reputation being harmed, resulting in an adverse effect on our operating results.
The use of our plasma-derived protein therapeutics may produce undesirable side effects or adverse reactions or events. For the most part, these side
effects are known, are expected to occur at some frequency and are described in the products’ labeling. Known side effects of a number of our plasma-derived
protein therapeutics include headache, nausea and additional common protein infusion related events, such as flu-like symptoms, dizziness and hypertension.
The occurrence of known side effects on a large scale could adversely affect our reputation and public image, and hence also our operating results.
15
In addition, the use of our plasma-derived protein therapeutics may be associated with serious and unexpected side effects, or with less serious
reactions at a greater than expected frequency. This may be especially true when our products are used in critically ill patient populations. When these
unexpected events are reported to us, we typically make a thorough investigation to determine causality and implications for product safety. These events
must also be specifically reported to the applicable regulatory authorities, and in some cases, also to the public by media channels. If our evaluation
concludes, or regulatory authorities perceive, that there is an unreasonable risk associated with one of our products, we would be obligated to withdraw the
impacted lot or lots of that product or, in certain cases, to withdraw the product entirely. Furthermore, it is possible that an unexpected side effect caused by a
product could be recognized only after extensive use of the product, which could expose us to product liability risks, enforcement action by regulatory
authorities and damage to our reputation.
We are subject to a number of existing laws and regulations in multiple jurisdictions, non-compliance with which could adversely affect our business,
financial condition and results of operations, and we are susceptible to a changing regulatory environment, which could increase our compliance costs or
reduce profit margins.
Any new product must undergo lengthy and rigorous testing and other extensive, costly and time-consuming procedures mandated by the FDA and
similar authorities in other jurisdictions, including the EMA and the regulatory authorities in Israel. Our facilities must be approved and licensed prior to
production and remain subject to inspection from time to time thereafter. Failure to comply with the requirements of the FDA or similar authorities in other
jurisdictions, including a failed inspection or a failure in our reporting system for adverse effects of our products experienced by the users of our products, or
any other non-compliance could result in warning letters, product recalls or seizures, monetary sanctions, injunctions to halt the manufacture and distribution
of products, civil or criminal sanctions, import or export restrictions, refusal of a regulatory authority to grant approvals or licenses, restrictions on operations
or withdrawal of existing approvals and licenses. In addition, we rely to a large extent on Shire for purposes of most of our regulatory compliance for Glassia
and product development and approvals in the United States relating to Glassia. Any failure by Shire to properly advise us regarding, or properly perform
tasks related to, regulatory compliance requirements, could adversely affect us. If our relationship with Shire terminated for any reason, we may be unable to
maintain regulatory compliance on a cost-effective basis, if at all. Any of these actions could cause direct liabilities, a loss in our ability to market Glassia, or
a loss of customer confidence in us or Glassia, which could materially adversely affect our sales, future revenues, reputation, and results of operations.
Similarly, we rely on other third-party vendors, for example, in the production, handling, and distributions of Glassia. If any of these companies incur
enforcement action from regulatory authorities due to noncompliance, this could negatively affect product sales, our reputation and results of operations.
Any changes in our production processes for our products must be approved by the FDA and/or similar authorities in other jurisdictions. Failure to
comply with any requirements as to production process changes dictated by the FDA or similar authorities in other jurisdictions could also result in warning
letters, product recalls or seizures, monetary sanctions, injunctions to halt the manufacture and distribution of products, civil or criminal sanctions, refusal of a
regulatory authority to grant approvals or licenses, restrictions on operations or withdrawal of existing approvals and licenses.
In addition, changes in the regulation of our activities, such as increased regulation affecting safety requirements or new regulations such as
limitations on the prices charged to customers in the European Union, the United States, Israel or other jurisdictions in which we operate, could materially
adversely affect our business. In addition, the requirements of different jurisdictions in which we operate may become less uniform, creating a greater
administrative burden and generating additional compliance costs, which would have a material adverse effect on our profit margins.
16
We would become supply-constrained and our financial performance would suffer if we were unable to obtain adequate quantities of source plasma or
plasma derivatives or specialty ancillary products approved by the FDA, the EMA or the regulatory authorities in Israel, or if our suppliers were to fail to
modify their operations to meet regulatory requirements.
Our products that generate the majority of our revenues depend on our access to U.S. or European source plasma or its derivative, fraction IV. Our
plasma and fraction IV are purchased from third-party licensed suppliers, which are also responsible for the fractionation process, pursuant to multiple
purchase agreements. We have entered into a number of plasma supply agreements with various third parties in the United States and Europe, some of which
are also strategic partners in the distribution of our proprietary products. These agreements contain various termination provisions, including upon a material
breach of either party, force majeure and, with respect to supply agreements with strategic partners, the failure or delay on the part of either party to obtain the
applicable regulatory approvals or the termination of the principal strategic relationship. If we are unable to obtain adequate quantities of source plasma or
fraction IV approved by the FDA, the EMA or the regulatory authorities in Israel from these providers, we may be unable to find an alternative cost-effective
source.
In order for plasma and fraction IV to be used in the manufacturing of our plasma-derived protein therapeutics, the individual centers at which the
plasma is collected must be licensed and approved by the relevant regulatory authorities, such as the FDA or the EMA. When a new plasma collection center
is opened, and on an ongoing basis after its licensure, it must be inspected by the FDA and the EMA and the regulatory authorities in Israel for compliance
with cGMP and other regulatory requirements. An unsatisfactory inspection could prevent a new center from being licensed or lead to the suspension or
revocation of an existing license. If we or relevant regulatory authorities determine that a plasma collection center did not comply with cGMP in collecting
plasma, we may be unable to use and may ultimately destroy plasma collected from that center, which may impact on our ability to timely meet our
manufacturing and supply obligations. Additionally, if noncompliance in the plasma collection process is identified after the impacted plasma has been pooled
with compliant plasma from other sources, entire plasma pools, in-process intermediate materials and final products could be impacted, such as through
product destruction or rework. Consequently, we could experience significant inventory impairment provisions and write-offs, which could adversely affect
our business and financial results.
In addition, the plasma supplier’s fractionation process must also meet standards of the FDA, the EMA and the regulatory authorities in Israel. If a
plasma supplier is unable to meet such standards, we will not be able to use the plasma derivatives provided by such supplier, which may impact on our
ability to timely meet our manufacturing and supply obligations.
If we were unable to obtain adequate quantities of source plasma or plasma derivatives approved by the FDA, the EMA or the regulatory authorities
in Israel, we would be limited in our ability to maintain or increase current manufacturing levels of our plasma derivative products, as well as in our ability to
conduct the research required to maintain a robust product pipeline. As a result, we could experience a substantial decrease in total revenues or profit margins,
a potential breach of distribution agreements, a loss of customers, a negative effect on our reputation as a reliable supplier of plasma derivative products or a
substantial delay in our production and strategic growth plans.
The ability to increase plasma collections may be limited, our supply of plasma and plasma derivatives could be disrupted or the cost of plasma and
plasma derivatives could increase substantially, as a result of numerous factors, including a reduction in the donor pool, increased regulatory requirements,
decreased number of plasma supply sources due to consolidation and new indications for plasma-derived protein therapeutics, which could increase demand
for plasma and plasma derivatives and lead to shortages.
We are also dependent on a number of suppliers who supply specialty ancillary products used in the production process, such as specific gels and
filters. Each of these specialty ancillary products is provided by a single, exclusive supplier. If these suppliers were unable to provide us with these specialty
ancillary products, if our relationships with these suppliers deteriorate, or these suppliers’ operations are negatively affected by regulatory enforcement due to
noncompliance, the manufacture and distribution of our products would be materially adversely affected, which would adversely affect our sales and results
of operations.
17
In addition, regulatory requirements, including cGMP regulations, continually evolve. Failure of our plasma suppliers to adjust their operations to
conform to new standards as established and interpreted by applicable regulatory authorities would create a compliance risk that could impair our ability to
sustain normal operations.
We have been required to conduct post-approval clinical trials of Glassia as a condition to marketing the product in the United States, and we may be
required to conduct post-approval clinical trials as a condition to licensing or distributing other products.
When a new product is approved, the FDA or other regulatory authorities may require post-approval clinical trials, sometimes called Phase IV
clinical trials. For example, the FDA has required that we conduct Phase IV clinical trials of Glassia, which began in 2015. The trials are aimed at collecting
additional safety data, such as the immune response in the body of a human or animal, commonly referred to as immunogenicity, viral transmission, levels of
the protein in the lung, or epithelial lining fluid, and certain efficacy endpoints requested by the FDA. If the results of such trials are unfavorable and
demonstrate a previously undetected risk or provide new information that puts patients at risk, this could result in the loss of the approval to market the
product in the United States and other countries, or the imposition of restrictions, such as additional labeling, with a resulting loss of sales. Other products we
develop may face similar requirements, which would require additional resources and which may not be successful. We may also receive approval, which is
conditional on successful additional data or clinical development, and failure in such further development may require similar changes to our product label or
result in revocation of our marketing authorization.
The nature of producing plasma-derived protein therapeutics may prevent us from responding in a timely manner to market forces and effectively
managing our production capacity.
The production of plasma-derived protein therapeutics is a lengthy and complex process. Our ability to match our production of plasma-derived
protein therapeutics to market demand is imprecise and may result in a failure to meet the market demand for our plasma-derived protein therapeutics or
potentially in an oversupply of inventory. Failure to meet market demand for our plasma-derived protein therapeutics may result in customers transitioning to
available competitive products, resulting in a loss of segment share or distributor or customer confidence. In the event of an oversupply in the market, we may
be forced to lower the prices we charge for some of our plasma-derived protein therapeutics, record asset impairment charges or take other action which may
adversely affect our business, financial condition and results of operations.
Each inhaled formulation of AAT, including Inhaled AAT for AATD, is being developed with a specific nebulizer produced by PARI, and the occurrence
of an adverse market event or PARI’s non-compliance with its obligations would have a material adverse effect on the commercialization of any inhaled
formulation of AAT.
We are dependent upon PARI for the commercialization of any inhaled formulation of AAT, including our second generation AATD product, Inhaled
AAT for AATD. We have an agreement with PARI, pursuant to which it is required to obtain the appropriate clearance to market PARI’s eFlow device, which
is a device required for the administration of inhaled formulation of AAT, from the EMA and FDA for use with Inhaled AAT for AATD. See “Item 4.
Information on the Company — Strategic Partnerships — PARI.” Failure of PARI to achieve these authorizations will have a material adverse effect on the
commercialization of any inhaled formulation of AAT, including Inhaled AAT for AATD, which would harm our growth strategy.
Additionally, pursuant to the agreement, PARI is obligated to manufacture and supply all of the market demand for the eFlow device for use in
conjunction with any inhaled formulation of AAT and we are required to purchase all of our volume requirements from PARI. Any event that permanently, or
for an extended period, prevents PARI from supplying the required quantity of devices would have an adverse effect on the commercialization of any inhaled
formulation of AAT, including Inhaled AAT for AATD.
18
Our Distribution segment is dependent on a few suppliers, and any disruption to our relationship with these suppliers, or their inability to supply us with
the products we sell, in a timely manner, in adequate quantities and/or at a reasonable cost, would have a material adverse effect on our business,
financial condition and results of operations.
Sales of products supplied by Bioproducts Laboratories Ltd. ("BPL") and Biotest A.G., which are sold in our Distribution segment, together
represented approximately 24%, 33% and 36% of our total revenues for the years ended December 31, 2016, 2015 and 2014, respectively. While we have
distribution agreements with each of our suppliers, these agreements do not obligate these suppliers to provide us with minimum amounts of our Distribution
segment products. Purchases of our Distribution segment products from our suppliers are typically on a purchase order basis. We work closely with our
suppliers to develop annual forecasts, but these forecasts are not obligations or commitments. However, if we fail to submit purchase orders that meet our
annual forecasts or if we fail to meet our minimum purchase obligations, we could lose exclusivity or, in certain cases, the distribution agreement could be
terminated. These suppliers may experience capacity constraints that result in their being unable to supply us with products in a timely manner, in adequate
quantities and/or at a reasonable cost. Contributing factors to supplier capacity constraints include, among other things, industry or customer demands in
excess of machine capacity, labor shortages and changes in raw material flows. These suppliers may also choose not to supply us with products at their
discretion or raise prices to a level that would render our products noncompetitive. Any significant interruption in the supply of these products could result in
us being unable to meet the demands of our customers, which would have a material adverse effect on our business, financial condition and results of
operations.
Additionally, if our relationship with either deteriorated, our distribution sales could be adversely affected. If we fail to maintain our existing
relationships with these suppliers, we could face significant costs in finding a replacement supplier, and delays in establishing a relationship with a new
supplier could lead to a decrease in our sales and a deterioration in our market share compared to one or more of our competitors.
Our business requires substantial capital, including potential investments in large capital projects, to operate and grow and to achieve our strategy of
realizing increased operating leverage.
In order to obtain FDA, EMA and other regulatory approvals for product candidates and new indications for existing products, we may be required
to enhance the facilities in which and processes by which we manufacture existing products, to develop new product delivery mechanisms for existing
products, to develop innovative product additions and to conduct clinical trials. We face a number of obstacles that we will need to overcome in order to
achieve our operating goals, including but not limited to the successful development of experimental products for use in clinical trials, the design of clinical
study protocols acceptable to the FDA, the EMA and other regulatory authorities, the successful outcome of clinical trials, scaling our manufacturing
processes to produce commercial quantities or successfully transition technology, obtaining FDA, EMA and other regulatory approvals of the resulting
products or processes and successfully marketing an approved or new product with applicable new processes. To finance these various activities, we may
need to incur future debt or issue additional equity. We may not be able to structure our debt obligations on favorable economic terms and any offering of
additional equity would result in a dilution of the equity interests of our current shareholders. A failure to fund these activities may harm our growth strategy,
competitive position, quality compliance and financial condition.
In addition, any enhancements to our manufacturing facilities necessary to obtain FDA or EMA approval for product candidates or new indications
for existing products could require large capital projects. We may also undertake such capital projects in order to maintain compliance with cGMP or expand
capacity. Capital projects of this magnitude involve technology and project management risks. Technologies that have worked well in a laboratory or in a pilot
plant may cost more or not perform as well, or at all, in full scale operations. Projects may run over budget or be delayed. We cannot be certain that any such
project will be completed in a timely manner or that we will maintain our compliance with cGMP, and we may need to spend additional amounts to achieve
compliance. Additionally, by the time multi-year projects are completed, market conditions may differ significantly from our initial assumptions regarding
competitors, customer demand, alternative therapies, reimbursement and public policy, and as a result capital returns may not be realized. In addition, to fund
large capital projects, we may similarly need to incur future debt or issue additional dilutive equity. A failure to fund these activities may harm our growth
strategy, competitive position, quality compliance and financial condition.
19
Raising additional capital would cause dilution to our existing shareholders, and may restrict our operations or require us to relinquish rights.
On November 28, 2016, we filed a registration statement on Form F-3 with the U.S. Securities and Exchange Commission (“SEC”) utilizing a
“shelf” registration process. Under this shelf registration process, we may offer from time to time up to an aggregate of $100,000,000 of our ordinary shares
in one or more offerings. To the extent that we raise additional capital through the sale of equity or convertible notes 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.
Our Proprietary Products segment operates in a highly competitive market.
We compete with well-established drug companies, including two to four large competitors for each of our products in the Proprietary Products
segment. These large competitors include CSL Behring Ltd., Shire, Cangene Corporation and Grifols S.A., which acquired a previous competitor, Talecris
Biotherapeutics, Inc., in 2011. We compete against these companies for, among other things, licenses, expertise, clinical trial patients and investigators,
consultants and third-party strategic partners. We also compete with these companies for market share for certain products in the Proprietary Products
segment. Our large competitors have advantages in the market because of their size, financial resources, markets and the duration of their activities and
experience in the relevant market, especially in the United States and countries of the European Union. As a result, they may be able to devote more funds to
research and development and new production technologies, as well as to the promotion of their products and business. These competitors may also be able to
sustain for longer periods a deliberate substantial reduction in the price of their products or services. Some of them also have an additional advantage
regarding the availability of raw materials, as they manufacture plasma and its products or own companies that collect or produce raw materials such as
plasma.
Other than our AAT products, our products generally do not benefit from patent protection and compete against similar products produced by other
providers. Additionally, the development by a competitor of a similar or superior product or increased pricing competition may result in a reduction in our net
sales or a decrease in our profit margins. For example, we believe that there are two main competitors in the AAT market: Grifols and CSL. We estimate that
Grifols’ AAT by infusion product for the treatment of AATD, Prolastin A1PI, accounts for 50% market share in the United States and more than 70% of sales
in the worldwide market for the treatment of AATD. Apart from its sales through Talecris’ historical business, Grifols is also a local producer of the product
in the Spanish market and operates in Brazil. CSL’s intravenous AAT product is mainly sold in the United States. In 2015, CSL’s intravenous AAT product
was granted centralized marketing authorization in Europe and CSL launched the product in a few European countries during 2016.There is another, smaller
local producer in the French market, LFB S.A.
Similarly, if a new AAT formulation with a significantly improved rate of administration is adopted (including, for example, aerosol inhalation or
one that can demonstrate statistically significant efficacy), the market share of our current AAT product, Glassia, could be negatively impacted. While we are
in the process of developing Inhaled AAT for AATD, our competitors may also be attempting to develop similar products or products that could be
substitutions for AAT products, such as gene therapy. For example, Grifols has completed a limited clinical trial for the development of an inhaled
formulation of AAT for the indication of cystic fibrosis. While we believe that these products are in the early stages of development, they may eventually be
successfully developed and launched. Furthermore, even if we are able to commercialize Inhaled AAT for AATD prior to the development of comparable
products by our competitors, sales of Inhaled AAT for AATD could adversely impact our revenue and growth of sales of Glassia, our current AATD product.
20
In addition, our plasma-derived protein therapeutics face competition from existing non-plasma products and other courses of treatments. For
example, we believe our main competitor for KamRho(D) (IM and IV) is Kedrion, which in 2012 acquired the Anti-Rh product line of Ortho-Clinical
Diagnostics, Inc., formerly our main competitor for KamRho(D) (IM or IV). Kedrion sells a product that we estimate accounts for approximately 50% of
sales in the U.S. anti-Rh market. We believe there are three additional competitors in this market: Aptevo Therapeutics Inc., Grifols and CSL. Additionally, in
2008, GlaxoSmithKline plc and Amgen Inc. launched thrombopoietin inhibitors targeting immune thermobocytopunic purpura patients, which may reduce
the demand for KamRho(D) (IV) to treat immune thermobocytopunic purpura. New treatments, such as small molecules, monoclonal or recombinant
products, may also be developed for indications for which our products are now used. We do not currently sell any recombinant products. We have begun
developing recombinant versions of AAT, but we cannot be certain that such products will ever be approved or commercialized. See “Item 4. Information on
the Company — Our Product Pipeline and Development Program — Recombinant AAT.” The main advantage of recombinant AAT is its potentially higher
availability at lower price per raw material. As a result, our product offerings may remain plasma-derived, even if our competitors offer competing
recombinant or other non-plasma products or treatments.
Sales in our Distribution segment rely primarily on our ability to win tender bids based on the price and availability of our products in annual public
tender processes.
Sales in our Distribution segment rely primarily on our ability to win tender bids during the annual tender process in Israel, and our ability to win
such bids may be materially adversely affected by competitive conditions in such bid process. For example, in 2010 through 2012, we benefitted from the
temporary suspension of two of our competitors from selling their IVIG products in Israel. This suspension has been lifted and both competitors are now able
to distribute plasma-derived protein therapeutics in the Israeli market. As these competing IVIG products returned to the market at the end of 2012, we
experienced increased competition for our Distribution segment products. For example, we participated in 2013 in a public tender in Israel with these
competitors. During this public tender process, some of our customers from prior years chose to purchase their supply requirements from our competitors. As
a result of these competitors returning to the market, revenues from our Distribution segment decreased in 2013 and may further decrease in the future. Our
existing and new competitors may also have significantly greater financial resources than us, which they could use to promote their products and business.
Greater financial resources would also enable our competitors to substantially reduce the price of their products or services. If our competitors are able to
offer prices lower than us, our ability to win tender bids during the annual tender process will be materially affected, and could reduce our total revenues or
decrease our profit margins.
Certain of our products in both segments have historically been subject to price fluctuations as a result of changes in the production capacity
available in the industry, the availability and pricing of plasma, development of competing products and the availability of alternative therapies. Higher prices
for plasma-derived protein therapeutics have traditionally spurred increases in plasma production and collection capacity, resulting over time in increased
product supply and lower prices. As demand continues to grow, if plasma supply and manufacturing capacity do not commensurately expand, prices tend to
increase. Additionally, consolidation in plasma companies has led to a decrease in the number of plasma suppliers in the world, as either manufacturers of
plasma-based pharmaceuticals purchase plasma suppliers or plasma suppliers are shut down in response to the number of manufacturers of plasma-based
pharmaceuticals decreasing, which may lead to increased prices. We may not be able to pass along these increased plasma and plasma-derivative prices to our
customers, which would reduce our profit margins.
Sales of our Distribution segment products are made through public tenders of Israeli hospitals and health maintenance organizations on an annual
basis. The prices we can offer, as well as the availability of products, are key factors in the tender process. If our suppliers in the Distribution segment cannot
sell us products at a competitive price or cannot guarantee sufficient quantities of products, we may lose the tenders.
21
Product liability claims or product recalls involving our products, or products we distribute, could have a material adverse effect on our business.
Our business exposes us to the risk of product liability claims that are inherent in the manufacturing, distribution and sale of plasma-derived
therapeutic protein products and other drug products. We face an inherent risk of product liability exposure related to the testing of our product candidates in
human clinical trials and an even greater risk when we commercially sell any products, including those manufactured by others that we distribute in Israel. If
we cannot successfully defend ourselves against claims that our product candidates or products caused injuries, or if the indemnities we have negotiated do
not adequately cover losses, we could incur substantial liabilities. Regardless of merit or eventual outcome, liability claims may result in:
·
·
·
·
·
·
·
·
·
·
·
decreased demand for our plasma-derived protein therapeutics and any product candidates that we may develop;
injury to our reputation;
difficulties in recruitment of new participants to our future clinical trials and withdrawal of current clinical trial participants;
costs to defend the related litigation;
substantial monetary awards to trial participants or patients;
difficulties in finding distributors for our products;
difficulties in entering into strategic partnerships with third parties;
diversion of management’s attention;
loss of revenue;
the inability to commercialize any products that we may develop; and
higher insurance premiums.
Plasma is biological matter that is capable of transmitting viruses and pathogens, whether known or unknown. Therefore, plasma derivative products,
if not properly tested, inactivated, processed, manufactured, stored and transported, could cause serious disease and possibly death to the patient. Further,
even when such steps are properly effected, viral and other infections may escape detection using current testing methods and may not be susceptible to
inactivation methods. Any transmission of disease through the use of one of our products or third-party products sold by us could result in claims against us
by or on behalf of persons allegedly infected by such products.
In addition, we sell and distribute third-party products in Israel, and the laws of Israel could also expose us to product liability claims for those
products. Furthermore, the presence of a defect (or a suspicion of a defect) in a product could require us to carry out a recall of such product. A product
liability claim or a product recall could result in substantial financial losses, negative reputational repercussions, loss of business and an inability to retain
customers. Although we maintain insurance for certain types of losses, claims made against our insurance policies could exceed our limits of coverage or be
outside our scope of coverage. Additionally, as product liability insurance is expensive and can be difficult to obtain, a product liability claim could increase
our required premiums or otherwise decrease our access to product liability insurance on acceptable terms. In turn, we may not be able to maintain insurance
coverage at a reasonable cost and may not be able to obtain insurance coverage that will be adequate to satisfy liabilities that may arise.
22
Regulatory approval for our products is limited by the FDA and similar authorities in other jurisdictions to those specific indications and conditions for
which clinical safety and efficacy have been demonstrated, and the prescription or promotion of off-label uses could adversely affect our business.
Any regulatory approval of our products is limited to those specific diseases and indications for which our products have been deemed safe and
effective by the FDA or similar authorities in other jurisdictions. In addition to the regulatory approval required for new formulations, any new indication for
an approved product also requires regulatory approval. Once we produce a plasma-derived protein therapeutic, we rely on physicians to prescribe and
administer it as we have directed and for the indications described on the labeling. To the extent any off-label uses and departures from our administration
directions become pervasive and produce results such as reduced efficacy or other adverse effects, the reputation of our products in the marketplace may
suffer. In addition, off-label uses may cause a decline in our revenues or potential revenues, to the extent that there is a difference between the prices of our
product for different indications.
Furthermore, while physicians may choose to prescribe drugs for uses that are not described in the product’s labeling and for uses that differ from
those approved by regulatory authorities, our ability to promote the products is limited to those indications that are specifically approved by the FDA or other
regulators. Although regulatory authorities generally do not regulate the behavior of physicians, they do restrict communications by companies on the subject
of off-label use. If our promotional activities fail to comply with these regulations or guidelines, we may be subject to warnings from, or enforcement action
by, these authorities. In addition, failure to follow FDA rules and guidelines relating to promotion and advertising can result in the FDA’s refusal to approve a
product, the suspension or withdrawal of an approved product from the market, enforcement letters, and corrective actions. Other regulatory authorities may
impose separately penalties including, but not limited to, fines, disgorgement of money, operating restrictions, or criminal prosecution.
The loss of one or more of our key employees could harm our business.
We depend on the continued service and performance of our key employees, including Amir London, our Chief Executive Officer, David Tsur, our
former Chief Executive Officer and our Active Deputy Chairman of the Board of Directors and our other senior management. We have entered into
employment agreements with all of our senior management, including Mr. London, and other key employees. Either party, however, can terminate these
agreements for any reason. The loss of key members of our executive management team could disrupt our operations or product development and have an
adverse effect on our ability to grow our business.
Our ability to attract, recruit, retain and develop qualified employees is critical to our success and growth.
We compete in a market that involves rapidly changing technological and regulatory developments that require a wide ranging set of expertise and
intellectual capital. In order for us to successfully compete and grow, we must attract, recruit, retain and develop the necessary personnel who can provide the
needed expertise across the entire spectrum of our intellectual capital needs. While we have a number of our key personnel who have substantial experience
with our operations, we must also develop and exercise our personnel to provide succession plans capable of maintaining continuity in the midst of the
inevitable unpredictability of human capital. However, the market for qualified personnel is competitive, and we may not succeed in recruiting additional
experienced or professional personnel, retaining current personnel or effectively replacing current personnel who depart with qualified or effective successors.
Many of the companies with which we compete for experienced personnel have greater resources than us.
Our effort to retain and develop personnel may also result in significant additional expenses, which could adversely affect our profitability. There can
be no assurance that qualified employees will continue to be employed or that we will be able to attract and retain qualified personnel in the future. Failure to
retain or attract qualified personnel could have a material adverse effect on our business, financial condition and results of operations.
23
We are subject to risks associated with doing business globally.
Our operations are subject to risks inherent in conducting business globally and under the laws, regulations and customs of various jurisdictions and
geographies. These risks include fluctuations in currency exchange rates, changes in exchange controls, loss of business in government and public tenders that
are held annually in many cases, nationalization, expropriation and other governmental actions, availability of raw materials, changes in taxation, importation
limitations, export control restrictions, changes in or violations of applicable laws, including the U.S. Foreign Corrupt Practices Act (“FCPA”), the U.K.
Bribery Act of 2010, pricing restrictions, economic and political instability, disputes between countries, diminished or insufficient protection of intellectual
property, and disruption or destruction of operations in a significant geographic region regardless of cause, including war, terrorism, riot, civil insurrection or
social unrest. Failure to comply with, or material changes to, the laws and regulations that affect our global operations could have an adverse effect on our
business, financial condition or results of operations.
We are subject to foreign currency exchange risk.
We receive payment for our sales and make payments for resources in a number of different currencies. While our sales and expenses are primarily
denominated in U.S. dollars, our financial results may be adversely affected by fluctuations in currency exchange rates as a portion of our sales and expenses
are denominated in other currencies, including the NIS and the Euro. Market volatility and currency fluctuations may limit our ability to cost-effectively
hedge against our foreign currency exposure and, in addition, our ability to hedge our exposure to currency fluctuations in certain emerging markets may be
limited. Hedging strategies may not eliminate our exposure to foreign exchange rate fluctuations and may involve costs and risks of their own, such as
devotion of management time, external costs to implement the strategies and potential accounting implications. Foreign currency fluctuations, independent of
the performance of our underlying business, could lead to materially adverse results or could lead to positive results that are not repeated in future periods.
For example, we were affected by the Russian Ruble devaluation during 2015, which led to a decrease in the income from sales of our products in Russia in
2015 and 2016. Fluctuation in the USD-Euro exchange rate may affect revenues and expenses mainly in our Distribution Segment, and we may experience
increased sensitivity to the USD-Euro exchange rate as we increase the portion of our products marketed and sold in Europe.
Events in global credit markets may impact our ability to obtain financing or increase the cost of future financing, including interest rate fluctuations
based on macroeconomic conditions that are beyond our control.
During periods of volatility and disruption in the U.S., European, or global credit markets, obtaining additional or replacement financing may be
more difficult and the cost of issuing new debt could be higher than the costs we incur under our current debt. The higher cost of new debt may limit our
ability to have cash on hand for working capital, capital expenditures and acquisitions on terms that are acceptable to us.
Developments in the economy may adversely impact our business.
Our operating and financial performance may be adversely affected by a variety of factors that influence the general economy in the United States,
Europe and worldwide, including global and local economic slowdowns, challenges faced banks and the health of markets for the sovereign debt. Many of
our largest markets, including the United States and Europe, previously experienced dramatic declines in the housing market, high levels of unemployment
and underemployment, and reduced earnings, or, in some cases, losses, for businesses across many industries, with reduced investments in growth.
A recessionary economic environment may adversely affect demand for our plasma-derived protein therapeutics. As a result of job losses, patients in
the U.S. may lose medical insurance and be unable to purchase needed medical products or may be unable to pay their share of deductibles or co-payments.
Hospitals may steer patients adversely affected by the economy to less costly therapies, resulting in a reduction in demand, or demand may shift to public
health hospitals, which purchase our products at a lower government price. A recessionary economic environment may also lead to price pressure for
reimbursement of new drugs, which may adversely affect the demand for our future plasma-derived protein therapeutics.
24
If our manufacturing facility in Beit Kama, Israel were to suffer a serious accident, contamination, force majeure event materially affecting our ability to
operate and produce saleable plasma-derived protein therapeutics, all of our manufacturing capacity could be shut down for an extended period.
We rely on a single manufacturing facility in Beit Kama, which is located in southern Israel, approximately 20 miles from the Gaza Strip. All of our
revenues in our Proprietary Products segment are derived from products manufactured at this facility. If this facility were to suffer an accident or a force
majeure event such as war, terrorist attack, earthquake, major fire or explosion, major equipment failure or power failure lasting beyond the capabilities of our
backup generators or similar event, or contamination, our revenues would be materially adversely affected. In this situation, our manufacturing capacity could
be shut down for an extended period, we could experience a loss of raw materials, work in process or finished goods inventory and our ability to operate our
business would be harmed. In addition, in any such event, the reconstruction of our manufacturing facility and storage facilities, and the regulatory approval
of the new facilities could be time-consuming. During this period, we would be unable to manufacture our plasma-derived protein therapeutics.
Our insurance against property damage and business interruption insurance may be insufficient to mitigate the losses from any such accident or force
majeure event. We may also be unable to recover the value of the lost plasma or work-in-process inventories, as well as the sales opportunities from the
products we would be unable to produce, or the loss of customers during such period.
Failure to timely increase our manufacturing capacity may have a material adverse effect on our business.
As our product offerings in our Proprietary Products segment increase, we will be required to produce in higher volumes compare to previous years.
A failure to increase our manufacturing volume as needed may lead to an inability to supply products, may have an adverse effect on our business and could
cause substantial harm to our business reputation and result in the loss of future customers and orders.
If we experience equipment difficulties or if the suppliers of our equipment or disposable goods fail to deliver key product components or supplies in a
timely manner, our manufacturing ability would be impaired and our product sales could suffer.
For certain equipment and supplies, we depend on a limited number of companies that supply and maintain our equipment and provide supplies such
as chromatography resins, filter media, glass bottles and stoppers used in the manufacture of our plasma-derived protein therapeutics. If our equipment were
to malfunction, or if our suppliers stop manufacturing or supplying such machinery, equipment or any key component parts, the repair or replacement of the
machinery may require substantial time and cost, and could disrupt our production and other operations. Alternative sources for key component parts or
disposable goods may not be immediately available. In addition, any new equipment or change in supplied materials may require revalidation by us or review
and approval by the FDA, the EMA, the regulatory authorities in Israel or other regulatory authorities, which may be time-consuming and require additional
capital and other resources. We may not be able to find an adequate alternative supplier in a reasonable time period, or on commercially acceptable terms, if at
all. As a result, shipments of affected products may be limited or delayed. Our inability to obtain our key source supplies for the manufacture of products may
require us to delay shipments of products, harm customer relationships and force us to curtail operations.
If our shipping or distribution channels were to become inaccessible due to an accident, an act of terrorism, a strike or any other force majeure event, our
supply, production and distribution processes could be disrupted.
Our plasma raw materials must be transported at a temperature of -20 degrees Celsius (-4 degrees Fahrenheit) to ensure the preservation of their
proteins. Not all shipping or distribution channels are equipped to transport plasma at these temperatures. If any of our shipping or distribution channels
become inaccessible because of a serious accident, an act of terrorism, a strike or any other force majeure event, we may experience disruptions in our
continued supply of plasma and other raw materials, delays in our production process or a reduction in our ability to distribute our plasma-derived protein
therapeutics to our customers.
25
Our success depends in part on our ability to obtain and maintain protection in the United States and other countries for the intellectual property relating
to or incorporated into our technology and products, including the patents protecting our manufacturing process.
Our success depends in large part on our ability to obtain and maintain protection in the United States and other countries for the intellectual property
covering or incorporated into our technology and products, especially intellectual property related to our manufacturing processes. At present, we consider
our two patents relating to our manufacturing process to be material to the operation of our business as a whole.
However, the patent landscape in the biotechnology and pharmaceutical fields is highly complicated and uncertain and involves complex legal,
factual and scientific questions. Changes in either patent laws or in the interpretation of patent laws in the United States and other countries may diminish the
value and strength of our intellectual property or narrow the scope of our patent protection. In addition, we may fail to apply for or be unable to obtain patents
necessary to protect our technology or products or enforce our patents due to lack of information about the exact use of our processes by third parties. Even if
patents are issued to us or to our licensors, they may be challenged, narrowed, invalidated, held to be unenforceable or circumvented, which could limit our
ability to prevent competitors from using similar technology or marketing similar products, or limit the length of time our technologies and products have
patent protection. Additionally, many of our patents relate to the processes we use to produce our products, not to the products themselves. In many cases, the
plasma-derived products we produce or develop in the future will not, in and of themselves, be patentable. Since many of our patents relate to processes, if a
competitor is able to utilize a process that does not rely on our protected intellectual property, that competitor could sell a plasma-derived product similar to
one we have developed or sell it without infringing these patents.
Our patents also may not afford us protection against competitors or other third parties with similar technology. Because patent applications in the
United States and many other jurisdictions are typically not published until 18 months after their filing, if at all, and because publications of discoveries in
scientific literature often lag behind actual discoveries, neither we nor our licensors can be certain that we or they were the first to make the inventions
claimed in our or their issued patents or pending patent applications, or that we or they were the first to file for protection of the inventions set forth in such
patent applications. As a result, the patents we own and license may be invalidated in the future, and the patent applications we own and license may not be
granted. For example, if a third party has also filed a patent application covering an invention similar to one covered in one of our patent applications, we may
be required to participate in an adversarial proceeding, known as an “interference proceeding,” declared by the U.S. Patent and Trademark Office ("USPTO")
or its foreign counterparts to determine priority of invention. In 2012, the Leahy-Smith America Invents Act, or AIA, created a new legal proceeding, the
inter partes review petition, that allows third parties to challenge the validity of patents before the Patent Trials and Appeals Board.
The costs of these proceedings could be substantial and our efforts in them could be unsuccessful, resulting in a loss of our anticipated patent
position. In addition, if a third party prevails in such a proceeding and obtains an issued patent, we may be prevented from practicing technology or marketing
products covered by that patent. Additionally, patents and patent applications owned by third parties may prevent us from pursuing certain opportunities such
as entering into specific markets or developing or commercializing certain products or reduce the cost effectiveness of the relevant business as a result of
needing to make royalty payments or other business conciliations. Finally, we may choose to enter into markets where certain competitors have patents or
patent protection over technology that may impede our ability to compete effectively. We filed an inter partes review petition at the Patent Trial and Appeal
Board on June 4, 2014, challenging the validity of a patent owned by Grifols, the manufacturer of Prolastin and Prolastin-C, competitors to Kamada’s Glassia
product. The patent, U.S. Patent No. 6,462,180, entitled “Precipitation; Passing Eluted Solution Through Anionic and Cationic Exchange Resins” (“the ‘180
patent”) is directed to a process of purifying alpha-1 proteinase inhibitor from aqueous solutions. The petition asserted that the patent is invalid in view of
several prior art references. The inter partes review was instituted on December 18, 2014. The institution decision included, inter alia, the finding that certain
claims of the ‘180 patent are invalid based on the cited prior art. These claims have also undergone ex parte reexamination at the USPTO and have also been
found to be invalid in that proceeding. On October 27, 2015, the USPTO rejected all the pending claims in the ex parte reexamination proceeding and on
December 18, 2015, the Patent Trial and Appeal Board gave its final decision in which it was held that the claims in respect of the ‘180 patent are invalid. On
February 16, 2016 Grifols filed a Patent Owner’s Notice of Appeal, which was abandoned during 2016.
26
Our patents expire at various dates between 2018 and 2027. However, because of the extensive time required for development, testing and regulatory
review of a potential product, it is possible that, 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 limiting advantages of the patent. Our pending and future patent applications may not lead to the issuance
of patents or, if issued, the patents may not be issued in a form that will provide us with any competitive advantage. We also cannot guarantee that: any of our
present or future patents or patent claims or other intellectual property rights will not lapse or be invalidated, circumvented, challenged or abandoned; our
intellectual property rights will provide competitive advantages or prevent competitors from making or selling competing products; our ability to assert our
intellectual property rights against potential competitors or to settle current or future disputes will not be limited by our agreements with third parties; any of
our pending or future patent applications will be issued or have the coverage originally sought; our intellectual property rights will be enforced in jurisdictions
where competition may be intense or where legal protection may be weak; or we will not lose the ability to assert our intellectual property rights against, or to
license our technology to, others and collect royalties or other payments. In addition, our competitors or others may design around our patents or protected
technologies. Effective protection of our intellectual property rights may also be unavailable, limited or not applied in some countries, and even if available,
we may fail to pursue or obtain necessary intellectual property protection in such countries. In addition, the legal systems of certain countries do not favor the
aggressive enforcement of patents and other intellectual property rights, and the laws of foreign countries may not protect our rights to the same extent as the
laws of the United States. As a result, our intellectual property may not provide us with sufficient rights to exclude others from commercializing products
similar or identical to ours. In order to preserve and enforce our patent and other intellectual property rights, we may need to make claims, apply certain
patent or other regulatory procedures or file lawsuits against third parties. Such proceedings could entail significant costs to us and divert our management’s
attention from developing and commercializing our products. Lawsuits may ultimately be unsuccessful, and may also subject us to counterclaims and cause
our intellectual property rights to be challenged, narrowed, invalidated or held to be unenforceable.
Additionally, unauthorized use of our intellectual property may have occurred or may occur in the future, including, for example, in the production
of counterfeit versions of our products. Counterfeit products may use different and possibly contaminated sources of plasma and other raw materials, and the
purification process involved in the manufacture of counterfeit products may raise additional safety concerns, over which we have no control. Although we
have taken steps to minimize the risk of unauthorized uses of our intellectual property, including for the production of counterfeit products, any failure to
identify unauthorized use of, and otherwise adequately protect, our intellectual property could adversely affect our business, including reducing the demand
for our products. Additionally, any reported adverse events involving counterfeit products that purported to be our products could harm our reputation and the
sale of our products in particular and consumer willingness to use plasma-derived therapeutics in general. Moreover, if we are required to commence
litigation related to unauthorized use, whether as a plaintiff or defendant, such litigation would be time-consuming, force us to incur significant costs and
divert our attention and the efforts of our management and other employees, which could, in turn, result in lower revenue and higher expenses.
In addition to patented technology, we rely on our unpatented proprietary technology, trade secrets, processes and know-how.
We rely on proprietary information (such as trade secrets, know-how and confidential information) to protect intellectual property that may not be
patentable, or that we believe is best protected by means that do not require public disclosure. We generally seek to protect this proprietary information by
entering into confidentiality agreements, or consulting, services, material transfer agreements or employment agreements that contain non-disclosure and non-
use provisions, as well as ownership provisions, with our employees, consultants, service providers, contractors, scientific advisors and third parties.
However, we may fail to enter into the necessary agreements, and even if entered into, these agreements may be breached or otherwise fail to prevent
disclosure, third-party infringement or misappropriation of our proprietary information, may be limited as to their term and may not provide an adequate
remedy in the event of unauthorized disclosure or use of proprietary information. We have limited control over the protection of trade secrets used by our
third-party manufacturers and suppliers and former employees and could lose future trade secret protection if any unauthorized disclosure of such information
occurs. In addition, our proprietary information may otherwise become known or be independently developed by our competitors or other third parties. To the
extent that our employees, consultants, service providers, contractors, scientific advisors and other third parties use intellectual property owned by others in
their work for us, disputes may arise as to the rights in related or resulting know-how and inventions. Costly and time-consuming litigation could be necessary
to enforce and determine the scope of our proprietary rights, and failure to obtain or maintain protection for our proprietary information could adversely affect
our competitive business position. Furthermore, laws regarding trade secret rights in certain markets where we operate may afford little or no protection to our
trade secrets.
27
We also rely on physical and electronic security measures to protect our proprietary information, but we cannot provide assurance that these security
measures will not be breached or provide adequate protection for our property. There is a risk that third parties may obtain and improperly utilize our
proprietary information to our competitive disadvantage. We may not be able to detect or prevent the unauthorized use of such information or take appropriate
and timely steps to enforce our intellectual property rights.
If we are unable to protect our trademarks from infringement, our business prospects may be harmed.
We own trademarks that identify certain of our products, our business name and our logo, and have registered these trademarks in certain key
markets. Although we take steps to monitor the possible infringement or misuse of our trademarks, it is possible that third parties may infringe, dilute or
otherwise violate our trademark rights. Any unauthorized use of our trademarks could harm our reputation or commercial interests. In addition, our
enforcement against third-party infringers or violators may be unduly expensive and time-consuming, and the outcome may be an inadequate remedy. Even if
trademarks are issued to us or to our licensors, they may be challenged, narrowed, cancelled, held to be unenforceable or circumvented.
We may be subject to claims that we infringe, misappropriate or otherwise violate the intellectual property rights of third parties.
The conduct of our business, our products or product candidates may infringe or be accused of infringing one or more claims of an issued patent or
may fall within the scope of one or more claims in a published patent application that may be subsequently issued and to which we do not hold a license or
other rights. For example, certain of our competitors and other third parties own patents and patent applications in areas relating to critical aspects of our
business and technology, including the separation and purification of proteins, the composition of AAT and the use of AAT for different indications, and these
competitors may in the future allege that we are infringing on their patent rights. We may also be subject to claims that we are infringing, misappropriating or
otherwise violating other intellectual property rights, such as trademarks, copyrights or trade secrets. Third parties could therefore bring claims against us or
our strategic partners that would cause us to incur substantial expenses and, if successful against us, could cause us to pay substantial damages. Further, if
such a claim were brought against us or our strategic partners, we or they could be forced to permanently or temporarily stop or delay manufacturing,
exportation or sales of the product or product candidate that is the subject of the dispute or suit.
In addition, we are a party to certain license agreements that may impose various obligations upon us as a licensee, including the obligation to make
milestone and royalty payments. If we fail to comply with these obligations, the licensor may terminate the license, in which event we might not be able to
market any product that is covered by the licensed intellectual property.
If we are found to be infringing, misappropriating or otherwise violating the patent or other intellectual property rights of a third party, or in order to
avoid or settle claims, we or our strategic partners may choose or be required to seek a license, execute cross-licenses or enter into a covenant not to sue
agreement from a third party and be required to pay license fees or royalties or both, which could be substantial. These licenses may not be available on
acceptable terms, or at all. Even if we or our strategic partners were able to obtain a license, the rights may be nonexclusive, which could result in our
competitors gaining access to the same intellectual property. Ultimately, we could be prevented from commercializing a product, or be forced to cease some
aspect of our business operations, if, as a result of actual or threatened claims, we or our strategic partners are unable to enter into licenses on acceptable
terms.
28
There have been substantial litigation and other proceedings regarding patent and other intellectual property rights in the pharmaceutical and
biotechnology industries. In addition, to the extent that we gain greater visibility and market exposure as a public company in the United States, we face a
greater risk of being involved in such litigation. In addition to infringement claims against us, we may become a party to other patent litigation and other
proceedings, including interference, opposition, cancellation, re-examination and similar proceedings before the USPTO and its foreign counterparts and
other regulatory authorities, regarding intellectual property rights with respect to our products. The cost to us of any patent litigation or other proceeding, even
if resolved in our favor, could be substantial. Some of our competitors may be able to sustain the costs of such litigation or proceedings more effectively than
we can because of their substantially greater financial resources. Uncertainties resulting from the initiation and continuation of patent litigation or other
proceedings could have a material adverse effect on our ability to compete in the marketplace or to conduct our business in accordance with our plans and
budget, and patent litigation and other proceedings may also absorb significant management time.
Some of our employees, consultants and service providers, were previously employed or hired at universities, medical institutes, or other
biotechnology or pharmaceutical companies, including our competitors or potential competitors. While we take steps to prevent them from using the
proprietary information or know-how of others in their work for us, we may be subject to claims that we or they have inadvertently or otherwise used or
disclosed intellectual property, trade secrets or other proprietary information of any such employee’s former employer or former ordering service or that they
have breached certain non-compete obligations to their former employers. Litigation may be necessary to defend against these claims and, even if we are
successful in defending ourselves, could result in substantial costs to us or be distracting to our management. If we fail to defend any such claims
successfully, in addition to paying monetary damages, we may lose valuable intellectual property rights or personnel.
A breakdown in our information technology (IT) systems could result in a significant disruption to our business.
Our operations are highly dependent on our information technology (IT) systems. If we were to suffer a breakdown in our systems, storage,
distribution or tracing, we could experience significant disruptions affecting all our areas of activity, including our manufacturing, research, accounting and
billing processes and potentially cause disruptions to our manufacturing process for products currently in production. We may also suffer from partial loss of
information and data due to such disruption.
Recently enacted and future healthcare law in the United States may adversely affect our business.
The healthcare regulatory environment in the U.S. is currently subject to significant uncertainty and the industry may in the future continue to
experience fundamental change as a result of regulatory reform. In March 2010, President Obama signed into law the Patient Protection and Affordable Care
Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010 (collectively, the “healthcare reform law”), a sweeping measure
intended to expand healthcare coverage within the United States, primarily through the imposition of health insurance mandates on employers and individuals
and expansion of the Medicaid program. The healthcare reform law, among other things: (i) addressed a new methodology by which rebates owed by
manufacturers under the Medicaid Drug Rebate Program are calculated for drugs that are inhaled, infused, instilled, implanted or injected; (ii) increased the
minimum Medicaid rebates owed by manufacturers under the Medicaid Drug Rebate Program and extends the rebate program to individuals enrolled in
Medicaid managed care organizations; (iii) established annual fees and taxes on manufacturers of certain branded prescription drugs; (iv) expands the
availability of lower pricing under the 340B drug pricing program by adding new entities to the program; and (v) established a new Medicare Part D coverage
gap discount program, in which manufacturers must agree to offer 50% point-of-sale discounts off negotiated prices of applicable brand drugs to eligible
beneficiaries during their coverage gap period, as a condition for the manufacturer’s outpatient drugs to be covered under Medicare Part D. On January 21,
2016, the Centers for Medicare and Medicaid Services issued final regulations to implement the changes to the Medicaid Drug Rebate Program under the
healthcare reform law. These regulations became effective on April 1, 2016. In addition, the new law established an abbreviated licensure pathway for
products that are drugs made by a living organism or derived from a living organism, commonly referred to as biosimilars, to become FDA-approved
biological products, with provisions covering exclusivity periods and a specific reimbursement methodology for biosimilars. However, some of the provisions
of the healthcare reform law have yet to be fully implemented and certain provisions have been subject to judicial and Congressional challenges. Furthermore,
President Trump has vowed to repeal the healthcare reform law, and it is uncertain whether new legislation will be enacted to replace the healthcare reform
law. In the coming years, additional changes could be made to U.S. governmental healthcare programs and U.S. healthcare laws that could significantly
impact the success of our products. We cannot predict what other legislation relating to our business or to the health care industry may be enacted, or what
effect such legislation may have on our business, prospects, operating results and financial condition.
29
In addition, Federal, state and foreign governmental authorities are likely to continue efforts to control the price of drugs and reduce overall
healthcare costs. These efforts could have an adverse impact on our ability to market products and generate revenues in the United States and foreign
countries.
Certain of our business practices could become subject to scrutiny by regulatory authorities, as well as to lawsuits brought by private citizens under
federal and state laws. Failure to comply with applicable law or an adverse decision in lawsuits may result in adverse consequences to us.
The laws governing our conduct in the United States are enforceable by criminal, civil and administrative penalties. Violations of laws such as the
Federal Food, Drug and Cosmetic Act (the “FDCA”), the Federal False Claims Act (the “FCA”), the Public Health Service (the “PHS Act”), the Physician
Payments Sunshine Act or a provision of the U.S. Social Security Act known as the “Anti-Kickback Law,” or any regulations promulgated under their
authority may result in jail sentences, fines or exclusion from federal and state health care programs, as may be determined by the Department of Health and
Human Services, the Department of Defense, other federal and state regulatory authorities and the federal and state courts. There can be no assurance that our
activities will not come under the scrutiny of regulators and other government authorities or that our practices will not be found to violate applicable laws,
rules and regulations or prompt lawsuits by private citizen “relators” under federal or state false claims laws.
For example, under the Anti-Kickback Law, and similar state laws and regulations, even common business arrangements, such as discounted terms
and volume incentives for customers in a position to recommend or choose drugs and devices for patients, such as physicians and hospitals, can result in
substantial legal penalties, including, among others, exclusion from Medicare and Medicaid programs, if those business arrangements are not appropriately
structured; therefore, our arrangements with referral sources must be structured with care to comply with applicable requirements. Also, certain business
practices, such as payment of consulting fees to healthcare providers, sponsorship of educational or research grants, charitable donations, interactions with
healthcare providers that prescribe products for uses not approved by the FDA and financial support for continuing medical education programs, must be
conducted within narrowly prescribed and controlled limits and in accordance with the Physician Payments Sunshine Act to avoid any possibility of
wrongfully influencing healthcare providers to prescribe or purchase particular products or as a reward for past prescribing. Significant enforcement activity
has been the result of actions brought by relators, who file complaints in the name of the United States (and if applicable, particular states) under federal and
state False Claims Act statutes and can be entitled to receive a significant portion (often as great as 30%) of total recoveries. Also, violations of the False
Claims Act can result in treble damages, and each false claim submitted can be subject to a penalty of up to $11,000 per claim. The healthcare reform law
imposes new reporting and disclosure requirements for pharmaceutical and medical device manufacturers with regard to a broad range of payments,
ownership interests, and other transfers of value made to certain U.S. physicians and teaching hospitals. A number of states have similar laws in place.
Additional and stricter prohibitions could be implemented by federal and state authorities. On the other hand, as President Trump has vowed to repeal the
healthcare reform law, it is uncertain whether such data collection obligations would be repealed or replaced with new regulations. Where practices have
been found to involve improper incentives to use products, government investigations and assessments of penalties against manufacturers have resulted in
substantial damages and fines. Many manufacturers have been required to enter into consent decrees, corporate integrity agreements, or orders that prescribe
allowable corporate conduct. Failure to satisfy requirements under the FDCA can also result in penalties, as well as requirements to enter into consent decrees
or orders that prescribe allowable corporate conduct.
30
To market and sell our products outside the United States, we must obtain and maintain regulatory approvals and comply with regulatory
requirements in such jurisdictions. The approval procedures vary among countries in complexity and timing. We may not obtain approvals from regulatory
authorities outside the United States on a timely basis, if at all, and in such case, we would be precluded from commercializing products in those markets. In
addition, some countries, particularly the countries of the European Union, regulate the pricing of prescription pharmaceuticals. In these countries, pricing
discussions 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. Such trials may be time-consuming and expensive and may not show an advantage in cost-efficacy for our products. If reimbursement of
our products is unavailable or limited in scope or amount, or if pricing is set at unsatisfactory levels, in either the United States or the European Union, we
could be adversely affected. Also, under the FCPA, the United States has increasingly focused on regulating the conduct by U.S. businesses occurring outside
of the United States, generally prohibiting remuneration to foreign officials for the purpose of obtaining or retaining business.
To enhance compliance with applicable health care laws, and mitigate potential liability in the event of noncompliance, regulatory authorities, such
as the Department of Health and Human Services’ Office of Inspector General (“OIG”), have recommended the adoption and implementation of a
comprehensive health care compliance program that generally contains the elements of an effective compliance and ethics program described in Section
8B2.1 of the U.S. Sentencing Commission Guidelines Manual. Increasing numbers of U.S.-based pharmaceutical companies have such programs. We have
not adopted U.S. healthcare compliance and ethics programs that generally incorporate the HHS OIG’s recommendations, but even if we do, having such a
program can be no assurance that we will avoid any compliance issues.
We could be adversely affected if other government or private third-party payors decrease or otherwise limit the amount, price, scope or other eligibility
requirements for reimbursement for the purchasers of our products.
Prices in many of our principal markets are subject to local regulation and certain pharmaceutical products, such as plasma-derived protein
therapeutics, are subject to price controls. In the United States, where pricing levels for our products are substantially established by third-party payors, a
reduction in the payors’ amount of reimbursement for a product may cause groups or individuals dispensing the product to discontinue administration of the
product, to administer lower doses, to substitute lower cost products or to seek additional price-related concessions. These actions could have a negative effect
on our financial results, particularly in cases where our products command a premium price in the marketplace or where changes in reimbursement rates
induce a shift in the site of treatment. The existence of direct and indirect price controls and pressures over our products has affected, and may continue to
materially adversely affect, our ability to maintain or increase gross margins.
Also, the intended use of a drug product by a physician can affect pricing. Physicians frequently prescribe legally available therapies for uses that are
not described in the product’s labeling and that differ from those tested in clinical studies and approved by the FDA or similar regulatory authorities in other
countries. These off-label uses are common across medical specialties, and physicians may believe such off-label uses constitute the preferred treatment or
treatment of last resort for many patients in varied circumstances. If reimbursement for off-label uses of products is not allowed by Medicare or other third-
party payors, including those in the United States or the European Union, we could be adversely affected. For example, the CMS could initiate an
administrative procedure known as a National Coverage Determination (“NCD”), by which the agency determines which uses of a therapeutic product would
be reimbursable under Medicare and which uses would not. This determination process can be lengthy, thereby creating a long period during which the future
reimbursement for a particular product may be uncertain.
31
We are subject to extensive environmental, health and safety, and other laws and regulations.
Our business involves the controlled use of hazardous materials, various biological compounds and chemicals. 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 are also subject to numerous environmental, health and workplace safety laws and regulations, including those governing laboratory
procedures, exposure to blood-borne pathogens and the handling of biohazardous materials and chemicals. Although we maintain workers’ compensation
insurance to cover the costs and expenses that may be incurred because of injuries to our employees resulting from the use of these materials, this insurance
may not provide adequate coverage against potential liabilities. Additional or more stringent federal, state, local or foreign laws and regulations affecting our
operations may be adopted in the future. We may incur substantial capital costs and operating expenses and may be required to obtain consents to comply
with any of these or certain other laws or regulations and the terms and conditions of any permits required pursuant to such laws and regulations, including
costs to install new or updated pollution control equipment, modify our operations or perform other corrective actions at our respective facilities. In addition,
fines and penalties may be imposed 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. We are subject to future audits by the Environmental Health
Department of the Regional Health Bureau of the Israeli Ministry of Health (“IMOH”) and the Ministry of Environmental Protection of Israel and may be
required to perform certain actions from time to time in order to comply with these guidelines and their requirements. We do not expect the costs of
complying with these guidelines to be material to our business. See “Item 4. Information on the Company — Environmental.”
Under the Israeli Restrictive Trade Practices Law, 5758-1988 (the “Restrictive Trade Practices Law”), a company that supplies or acquires more than
50% of any product or service in Israel in a relevant market may be deemed to be a monopoly. A monopolist is prohibited from participating in certain
business practices, including unreasonably refusing to sell products or provide services over which a monopoly exists, charging unfair prices for such
products or services, and abusing its position in the market in a manner that might reduce business competition or harm the public. In addition, the General
Director of the Israeli Antitrust Authority may determine that a company is a monopoly and has the right to order such company to change its conduct in
matters that may adversely affect business competition or the public, including by imposing restrictions on its conduct. Depending on the analysis and the
definition of the relevant product markets in which we operate, we may be deemed to be a “monopoly” under the Israeli Restrictive Trade Practices Law with
respect to certain of our products. Furthermore, following an amendment to the Restrictive Trade Practices Law that became effective in August 2015, which
repealed the statutory exemption that existed under the Restrictive Trade Practices Law for restrictive arrangements that were mutually exclusive
arrangements, we may face difficulties in certain cases negotiating new distribution agreements with foreign pharmaceutical manufacturers and may need to
amend previously executed agreements or seek a specific exemption from the Israeli Antitrust Authority for such arrangements, and we may not be successful
in negotiating such new agreements or amending such agreements or receiving such exemptions.
We have entered into a collective bargaining agreement with the employees' committee and the Histadrut (General Federation of Labor in Israel), and we
could incur labor costs or experience work stoppages as a result of any disputes in connection with such agreement.
In February 2013, we were notified by the Histadrut (General Federation of Labor in Israel) that more than one-third of our employees at our Beit
Kama facility had decided to join the Histadrut and that they have established an employees' committee. Following negotiation we signed, in December 2013,
a collective bargaining agreement with the employees' committee and the Histadrut, which will expire in December 2017. In the process of negotiating such
agreement, two work stoppages occurred and in the process of negotiating the renewal of the collective bargaining agreement, additional work stoppages may
occur. In October 2016, the General Federation of Labor in Israel authorized our employees' committee to declare a labor dispute, which lead to short-term
work stoppages and may lead to the occurrence of work stoppages in the future. Although work stoppages have not had a material adverse effect on our
business or financial condition in the past, any future disputes with the committee and the Histadrut over the implementation or the interpretation or the
renewal of the collective bargaining agreement may lead to additional labor costs and/or work stoppages, which could adversely affect our business
operations, including through a loss of revenue and strained relationships with customers.
32
The requirements of being a public company in the United States, as well as in Israel, may strain our resources and distract our management, which
could make it difficult to manage our business, particularly after we are no longer an “emerging growth company.”
As a public company whose shares are being traded in the United States, as well as in Israel, we are required to comply with various regulatory and
reporting requirements, including those required by the SEC. Complying with these reporting and regulatory requirements is time consuming, and may result
in increased costs to us and could have a negative effect on our business, results of operations and financial condition.
As a public company in the United States, we are subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) and the requirements of the Sarbanes-Oxley Act of 2002 (“S-OX”). These requirements may place a strain on our systems and resources.
The Exchange Act requires that we file annual and current reports with respect to our business and financial condition. S-OX requires that we maintain
effective disclosure controls and procedures and internal controls over financial reporting. To maintain and improve the effectiveness of our disclosure
controls and procedures, we may need to commit significant resources, hire additional staff and provide additional management oversight. These activities
may divert management’s attention from other business concerns, which could have a material adverse effect on our business, financial condition and results
of operations.
As an “emerging growth company,” as defined in the JOBS Act, we take advantage of certain temporary exemptions from various reporting
requirements, including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of S-OX (and the rules and
regulations of the SEC thereunder). When these exemptions cease to apply, we expect to incur additional expenses and devote increased management effort
toward ensuring compliance with them. We will cease to be an emerging growth company on or before December 31, 2018 (See “—We are an “emerging
growth company” with reduced reporting requirements that may make our ordinary shares less attractive to investors.”).
Our share price may be volatile.
The market price of our ordinary shares is highly volatile and could be subject to wide fluctuations in price as a result of various factors, some of
which are beyond our control. These factors include:
·
·
·
·
·
·
actual or anticipated fluctuations in our financial condition and operating results;
overall conditions in the specialty pharmaceuticals market;
loss of significant customers or changes to agreements with our strategic partners;
changes in laws or regulations applicable to our products;
actual or anticipated changes in our growth rate relative to our competitors’;
announcements of clinical trial results, technological innovations, significant acquisitions, strategic alliances, joint ventures or capital
commitments by us or our competitors;
33
·
·
·
·
·
·
·
·
·
·
changes in key personnel;
fluctuations in the valuation of companies perceived by investors to be comparable to us;
the issuance of new or updated research reports by securities analysts;
disputes or other developments related to proprietary rights, including patents, litigation matters and our ability to obtain intellectual
property protection for our technologies;
announcement of, or expectation of, additional financing efforts;
sales of our ordinary shares by us or our shareholders, including pursuant to our recently filed registration statement on Form F-3;
share price and volume fluctuations attributable to inconsistent trading volume levels of our shares;
recalls and/or adverse events associated with our products;
the expiration of contractual lock-up agreements with our executive officers and directors; and
general political, economic and market conditions.
Furthermore, the stock markets have experienced extreme price and volume fluctuations that have affected and continue to affect the market price of
equity securities of many companies. Broad market and industry fluctuations, as well as general economic, political and market conditions, may negatively
impact the market price of our ordinary shares.
In the past, companies that have experienced volatility in the market price of their shares have been subject to securities class action litigation or
derivative actions. We may also be the target of these types of litigation and actions in the future. Securities litigation against us could result in substantial
costs and divert our management’s attention from other business concerns, which could seriously harm our business.
If equity research analysts issue unfavorable commentary or downgrade our ordinary shares, the price of our ordinary shares could decline.
The trading market for our ordinary shares relies in part on the research and reports that equity research analysts publish about us and our business.
The price of our ordinary shares could decline if one or more securities analysts downgrade our ordinary shares or if those analysts issue other unfavorable
commentary or cease publishing reports about us or our business.
Future sales of our ordinary shares in the public market could cause our share price to fall.
Sales by us or the shareholders of a substantial number of our ordinary shares in the public market, either on the Tel Aviv Stock Exchange (the
“TASE”) or Nasdaq, 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. As of December 31, 2016, we had 36,447,175_ordinary shares outstanding.
On November 28, 2016, we filed a registration statement on Form F-3 with the SEC utilizing a “shelf” registration process. Under this shelf
registration process, we may offer from time to time up to an aggregate of $100,000,000 of our ordinary shares in one or more offerings.
34
Furthermore, except for shares held by our affiliates as contemplated by Rule 144 and the Securities Act of 1933, as amended (the “Securities Act”),
all of the ordinary shares that are outstanding as of December 31, 2016, as well as the 2,487,236 ordinary shares issuable upon exercise of outstanding
options, are freely tradable in the United States without restrictions or further registration under the Securities Act. Approximately 23% of our outstanding
ordinary shares is beneficially owned by affiliates. These entities could resell the shares into the public markets in the United States in the future in
accordance with the requirements of Rule 144, which include certain limitations on volume.
In addition, according to the provisions of a certain registration rights agreement, Damar Chemicals Inc., a company registered in Panama
(“Damar”), Leon Recanati, Gov Financial Holdings Ltd., a company organized under the laws of the State of Israel (“Gov”) and wholly-owned by Mr.
Recanati, and David Tsur and their respective affiliates, are entitled, until no later than June 2018, to require that we register their 8,386,561 shares under the
Securities Act for resale into the public markets in the United States. All shares sold pursuant to an offering covered by such registration statement will be
freely tradable in the United States, except for shares purchased by affiliates.
The significant share ownership positions of Leon Recanati, the current Chairman of our board of directors, and the Hahn family may limit our
shareholders’ ability to influence corporate matters.
Leon Recanati, the Chairman of our board of directors, and the Hahn family own, directly and indirectly, 10.9% and 10% of our outstanding ordinary
shares, respectively, as of December 31, 2016. Accordingly, if Leon Recanati and the Hahn family vote the shares that they own or control together, they will
be able to significantly influence the outcome of matters required to be submitted to our shareholders for approval, including decisions relating to the election
of our board of directors and the outcome of any proposed merger or consolidation of our company. Their interests may not be consistent with those of our
other shareholders. In addition, these parties’ significant interest in us may discourage third parties from seeking to acquire control of us, which may
adversely affect the market price of our shares. On March 6, 2013, a shareholders agreement was entered into, effective March 4, 2013, pursuant to which Mr.
Recanati and any company controlled by him (collectively, the “Recanati Group”), on the one hand, and Damar, TUTEUR S.A.C.I.F.I.A (“Tuteur”)
(companies controlled by the Hahn family) and their affiliates (collectively, the “Damar Group”), on the other hand, have each agreed to vote the ordinary
shares beneficially owned by them in favor of the election of director nominees designated by the other group as follows: (i) three director nominees, so long
as the other group beneficially owns at least 7.5% of our outstanding share capital, (ii) two director nominees, so long as the other group beneficially owns at
least 5.0% (but less than 7.5%) of our outstanding share capital, and (iii) one director nominee, so long as the other group beneficially owns at least 2.5% (but
less than 5.0%) of our outstanding share capital. In addition, to the extent that after the designation of the foregoing director nominees there are additional
director vacancies, each of the Recanati Group and Damar Group have agreed to vote the ordinary shares beneficially owned by them in favor of such
additional director nominees designated by the party who beneficially owns the larger voting rights in our Company. We are not party to such agreement or
bound by its terms.
Our ordinary shares are traded on more than one market and this may result in price variations.
Our ordinary shares have been traded on the TASE since August 2005, and on Nasdaq since May 2013. Trading in our ordinary shares on these
markets takes place in different currencies (U.S. dollars on Nasdaq and NIS on the TASE), and at different times (resulting from different time zones, trading
days and public holidays in the United States and Israel). The trading prices of our ordinary shares on these two markets may differ due to these and other
factors. Any decrease in the price of our ordinary shares on the TASE could cause a decrease in the trading price of our ordinary shares on Nasdaq, and a
decrease in the price of our ordinary shares on Nasdaq could likewise cause a decrease in the trading price of our ordinary shares on the TASE.
35
Our U.S. shareholders may suffer adverse tax consequences if we are characterized as a passive foreign investment company.
Generally, if, for any taxable year, at least 75% of our gross income is passive income, or at least 50% of the value of our assets is attributable to
assets that produce passive income or are held for the production of passive income, we would be characterized as a passive foreign investment company
(“PFIC”) for U.S. federal income tax purposes. If we are characterized as a PFIC, our U.S. shareholders may suffer adverse tax consequences, including
having gains realized on the sale of our ordinary shares treated as ordinary income, rather than capital gain, the loss of the preferential rate applicable to
dividends received on our ordinary shares by individuals who are U.S. Holders (as defined in “Item 10. Additional Information — E. Taxation — United
States Federal Income Taxation”), and having interest charges apply to distributions by us and the proceeds of share sales. See “Item 10. Additional
Information — E. Taxation — United States Federal Income Taxation.”
We are a “foreign private issuer” and have disclosure obligations that are different from those of U.S. domestic reporting companies.
We are a foreign private issuer and are not subject to the same requirements that are imposed upon U.S. domestic issuers by the SEC. Under the
Exchange Act, we are subject to reporting obligations that, in certain respects, are less detailed and less frequent than those of U.S. domestic reporting
companies. For example, we are not required to issue quarterly reports, proxy statements that comply with the requirements applicable to U.S. domestic
reporting companies, or individual executive compensation information that is as detailed as that required of U.S. domestic reporting companies. We also
have four months after the end of each fiscal year to file our annual reports with the SEC and are not required to file current reports as frequently or promptly
as U.S. domestic reporting companies. Furthermore, our officers, directors and principal shareholders are exempt from the requirements to report short-swing
profit recovery contained in Section 16 of the Exchange Act.
As we are a “foreign private issuer” and follow certain home country corporate governance practices, our shareholders may not have the same
protections afforded to shareholders of companies that are subject to all Nasdaq corporate governance requirements.
As a foreign private issuer, we have the option to follow Israeli corporate governance practices rather than certain corporate governance requirements
of Nasdaq, except to the extent that such laws would be contrary to U.S. securities laws, and provided that we disclose the requirements we are not following
and describe the home country practices we follow instead. We have relied on this “foreign private issuer exemption” with respect to all the items listed under
the heading “Item 16G. Corporate Governance”, including with respect to shareholder approval requirements in respect of equity issuances and equity-based
compensation plans, the requirement to have independent oversight on our director nominations process and to adopt a formal written charter or board
resolution addressing the nominations process, the quorum requirement for meetings of our shareholders and the Nasdaq requirement to have a formal charter
for the compensation committee. We may in the future elect to follow home country practices in Israel with regard to other matters. As a result, our
shareholders may not have the same protections afforded to shareholders of companies that are subject to all Nasdaq corporate governance requirements. See
“Item 16G. Corporate Governance.”
We do not intend to pay dividends.
We have not recently declared or paid any cash dividends on our ordinary shares and do not intend to pay any cash dividends. Any future agreements
may contain terms prohibiting or limiting the amount of dividends that may be declared or paid on our ordinary shares. In addition, Israeli law limits our
ability to declare and pay dividends, and may subject our dividends to Israeli withholding taxes. We anticipate that we will retain all of our future earnings for
use in the development of our business and for general corporate purposes. Any determination to pay dividends in the future will be at the discretion of our
board of directors. Accordingly, investors must rely on sales of their ordinary shares after price appreciation, which may never occur, as the only way to
realize any future gains on their investments.
36
We are an “emerging growth company” with reduced reporting requirements that may make our ordinary shares less attractive to investors.
We are an “emerging growth company,” as defined in the JOBS Act, and have taken advantage of certain exemptions from various reporting
requirements that are applicable to public companies generally. For example, for so long as we remain an emerging growth company, we have elected not to
have our independent registered public accounting firm provide an attestation report on the effectiveness of our internal control over financial reporting, as
would otherwise be required by Section 404(b) of S-OX. This may increase the risk that we fail to detect and remedy any weaknesses or deficiencies in our
internal control over financial reporting.
In general, these reduced reporting requirements allow us to refrain from disclosing information that you may find important. It is also possible that
investors may generally find our ordinary shares less attractive because of our status as an emerging growth company and our more limited disclosure. Any of
the foregoing could adversely affect the price and liquidity of our ordinary shares.
We anticipate taking advantage of these disclosure exemptions until we are no longer an “emerging growth company.” We will cease to be an
“emerging growth company” upon the earliest of:
·
·
·
·
December 31, 2018, which is the last day of the fiscal year in which the fifth anniversary of our initial public offering in the United States
has occurred;
the last day of the fiscal year in which our annual gross revenues are $1 billion or more;
the date on which we have, during the previous three-year period, issued more than $1 billion in non-convertible debt securities; or
the date we qualify as a “large accelerated filer” with at least $700 million of equity securities held by non-affiliates.
Risks Relating to Our Incorporation and Location in Israel
Conditions in Israel could adversely affect our business.
We are incorporated under Israeli law and our principal offices and manufacturing facilities are located in Israel. Accordingly, political, economic
and military conditions in Israel directly affect our business. Since the State of Israel was established in 1948, a number of armed conflicts have occurred
between Israel and its Arab neighbors. Although Israel has entered into various agreements with Egypt, Jordan and the Palestinian Authority, there has been
terrorist activity, with varying levels of severity over the years. During July and August 2014, Israel engaged in an armed conflict with Hamas in the Gaza
Strip, resulting in thousands of rockets being fired from the Gaza Strip and missile strikes against civilian targets in various parts of Israel, which disrupted
most day-to-day civilian activity, particularly in southern Israel, the location of our manufacturing facility. In the event that our facilities are damaged as a
result of hostile action or hostilities otherwise disrupt the ongoing operation of our facilities or the airports and seaports on which we depend to import and
export our supplies and products, our ability to manufacture and deliver products to customers could be materially adversely affected. Additionally, the
operations of our Israeli suppliers and contractors may be disrupted as a result of hostile action or hostilities, in which event our ability to deliver products to
customers may be materially adversely affected.
Several countries, principally in the Middle East, still restrict doing business with Israel and Israeli companies, and additional countries may impose
restrictions on doing business with Israel and Israeli companies if hostilities in Israel or political instability in the region continues or increases. These
restrictions may limit materially our ability to obtain raw materials from these countries or sell our products to companies in these countries. Any hostilities
involving Israel or the interruption or curtailment of trade between Israel and its present trading partners, or significant downturn in the economic or financial
condition of Israel, could adversely affect our operations and product development, cause our sales to decrease and adversely affect the share price of publicly
traded companies having operations in Israel, such as us.
37
Our operations may be disrupted by the obligations of personnel to perform military service.
As of December 31, 2016, we had 377 employees, all of whom were based in Israel. Our employees may be called upon to perform up to 36 days
(and in some cases more) of annual military reserve duty until they reach the age of 40 (and in some cases, up to 45 or older) and, in emergency
circumstances, could be called to active duty. In response to increased tension and hostilities, there have been since September 2000 occasional call-ups of
military reservists, including in connection with the most recent conflicts with Hamas in July and August 2014, and it is possible that there will be additional
call-ups in the future. Our operations could be disrupted by the absence of a significant number of our employees related to military service or the absence for
extended periods of one or more of our key employees for military service. Such disruption could materially adversely affect our business and results of
operations. Additionally, the absence of a significant number of the employees of our Israeli suppliers and contractors related to military service or the
absence for extended periods of one or more of their key employees for military service may disrupt their operations, in which event our ability to deliver
products to customers may be materially adversely affected.
The tax benefits that are available to us require us to continue to meet various conditions and may be terminated or reduced in the future, which could
increase our costs and taxes.
One of our Israeli facilities has “Approved Enterprise” status granted by the Investment Center of the Ministry of Economy (formerly named the
Ministry of Industry, Trade and Labor) of the State of Israel (the “Investment Center”), under the Israeli Law for the Encouragement of Capital Investments,
1959 (the “Investment Law”), which made us eligible for a grant and certain tax benefits under that law for a certain investment program. The investment
program provided us with a grant in the amount of 24% of our approved investments, in addition to certain tax benefits, which will apply to the turnover
resulting from the operation of such investment program, for a period of up to ten consecutive years from the first year in which we generated taxable income.
The tax benefits under the Approved Enterprise status will expire at the end of 2017.
Additionally, we have obtained a tax ruling from the Israeli Tax Authority according to which, among other things, our activity has been qualified as
an “industrial activity,” as defined in the Investment Law, and is also eligible for tax benefits as a “Privileged Enterprise,” which will apply to the turnover
attributed to such enterprise, for a period of up to ten years from the first year in which we generated taxable income. The tax benefits under the Privileged
Enterprise status are scheduled to expire at the end of 2021.
In order to remain eligible for the tax benefits of an Approved/Privileged Enterprise, we must continue to meet certain conditions stipulated in the
Investment Law and its regulations, as amended. In addition, in order to remain eligible for the tax benefits available to the Approved Enterprise, we must
also comply with the criteria set forth in the applicable certificate of approval, and in the case of the Privileged Enterprise, we must also comply with the
conditions set forth in the tax ruling. These conditions include, among other things, that the production, directly or through subcontractors, of all our products
should be performed within certain regions of Israel. If we do not meet these requirements, the tax benefits would be reduced or canceled and we could be
required to refund any tax benefits that we received in the past, in whole or in part, linked to the Israeli consumer price index, together with interest. Further,
these tax benefits may be reduced or discontinued in the future. For example, while we do not expect that the transfer of manufacturing of Glassia to Shire, or
the grant to Shire of the right to use our technology for such manufacturing, would result in the reduction or loss of these tax benefits, according to the tax
ruling that we obtained, we may lose those benefits if it is determined that we do not comply with the conditions set forth in the tax ruling. If these tax
benefits are canceled, our Israeli taxable income would be subject to regular Israeli corporate tax rates. The standard corporate tax rate for Israeli companies
was 26.5% for 2014 and 2015, it decreased to 25% in 2016 and 24% in 2017, and will further decrease to 23% for 2018. For more information about
applicable Israeli tax regulations, see “Item 10. Additional Information — E. Taxation — Israeli Tax Considerations and Government Programs.”
38
In the future, we may not be eligible to receive additional tax benefits under the Investment Law if we increase certain of our activities outside of
Israel. Additionally, in the event of a distribution of a dividend from the abovementioned tax exempt income, in addition to withholding tax at a rate of 20%
effective as of 2014 (or a reduced rate under an applicable double tax treaty), we will be subject to tax on the otherwise exempt income (grossed-up to reflect
the pre-tax income that we would have had to earn in order to distribute the dividend) at the corporate tax rate applicable to our Approved/Privileged
Enterprise’s income, which would have been applied had we not enjoyed the exemption. Similarly, in the event of our liquidation or a share buyback, we will
be subject to tax on the grossed up amount distributed or paid at the corporate tax rate which would have been applied to our Privileged Enterprise’s income
had we not enjoyed the exemption. For more information about applicable Israeli tax regulations, see “Item 10. Additional Information — E. Taxation —
Israeli Tax Considerations and Government Programs.”
It may be difficult to enforce a U.S. judgment against us and our officers and directors in Israel or the United States, or to assert U.S. securities laws
claims in Israel or serve process on our officers and directors.
We are incorporated in Israel. Substantially all of our directors and executives officers and the Israeli experts named in this Annual Report reside
outside the United States. The majority of our assets and the assets of these persons are located outside the United States. Therefore, it may be difficult for an
investor, or any other person or entity, to enforce a U.S. court judgment based upon the civil liability provisions of the U.S. federal securities laws against us
or any of these persons in a U.S. or Israeli court, or to effect service of process upon these persons in the United States. Additionally, it may be difficult for an
investor, or any other person or entity, to assert U.S. securities law claims in original actions instituted in Israel. Israeli courts may refuse to hear a claim based
on an alleged violation of U.S. securities laws on the grounds that Israel is not the most appropriate forum in which to bring such a claim. Even if an Israeli
court agrees to hear a claim, it may determine that Israeli law and not U.S. law is applicable to the claim. If U.S. law is found to be applicable, the content of
applicable U.S. law must be proved 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 addressing the matters described above.
Your rights and responsibilities as our shareholder are governed by Israeli law, which may differ in some respects from the rights and responsibilities of
shareholders of U.S. corporations.
Since we are incorporated under Israeli law, the rights and responsibilities of our shareholders are governed by our articles of association and Israeli
law. These rights and responsibilities differ in some respects from the rights and responsibilities of shareholders of U.S.-based corporations. In particular, a
shareholder of an Israeli company has a duty to act in good faith and in a customary manner in exercising its rights and performing its obligations towards the
company and other shareholders and to refrain from abusing its power in the company, including, among other things, in voting at the general meeting of
shareholders on certain matters, such as an amendment to the company’s articles of association, an increase of the company’s authorized share capital, a
merger of the company and approval of related party transactions that require shareholder approval. A shareholder also has a general duty to refrain from
discriminating against other shareholders. In addition, a controlling shareholder or a shareholder who knows that it possesses the power to determine the
outcome of a shareholders vote, or to appoint or prevent the appointment of an office holder in the company has a duty to act in fairness towards the company.
However, Israeli law does not define the substance of this duty of fairness. See “Item 6. Directors, Senior Management and Employees — Fiduciary Duties
and Approval of Specified Related Party Transactions under Israeli Law — Duties of Shareholders.” There is limited case law available to assist us in
understanding the nature of this duty or the implications of these provisions. These provisions may be interpreted to impose additional obligations and
liabilities on our shareholders that are not typically imposed on shareholders of U.S. corporations.
Provisions of Israeli law and our articles of association may delay, prevent or make undesirable an acquisition of all or a significant portion of our shares
or assets.
Certain provisions of Israeli law and our articles of association could have the effect of delaying or preventing a change in control and may make it
more difficult for a third party to acquire us or for our shareholders to elect different individuals to our board of directors, even if doing so would be beneficial
to our shareholders, and may limit the price that investors may be willing to pay in the future for our ordinary shares. For example, Israeli corporate law
regulates mergers and requires that a tender offer be effected when more than a specified percentage of shares in a company are purchased. Under our articles
of association, a merger shall require the approval of 66% of the voting rights represented at a meeting of our shareholders and voting on the matter, in person
or by proxy, and any amendment to such provision shall require the approval of 60% of the voting rights represented at a meeting of our shareholders and
voting on the matter, in person or by proxy. Further, Israeli tax considerations may make potential transactions undesirable to us or to some of our
shareholders whose country of residence does not have a tax treaty with Israel granting tax relief to such shareholders from Israeli tax. With respect to certain
mergers, Israeli tax law may impose certain restrictions on future transactions, including with respect to dispositions of shares received as consideration, for a
period of two years from the date of the merger. See “Item 10. Additional Information — B. Memorandum and Articles of Association — Acquisitions Under
Israeli Law.”
39
Item 4. Information on the Company
Corporate Information
We were founded in Israel in 1990. In August 2005, we successfully completed an initial public offering on the TASE. In June 2013, we successfully
completed an initial public offering in the United States on Nasdaq. The address of our principal executive office is 7 Sapir St., Kiryat Weizmann Science
Park, P.O. Box 4081, Ness Ziona 7414002, Israel, and our telephone number is +972 8 9406472. Our website address is www.kamada.com. The reference to
our website is intended to be an inactive textual reference and the information on, or accessible through, our website is not intended to be part of this Annual
Report.
We have irrevocably appointed Puglisi & Associates as our agent to receive service of process in any action against us in any United States federal or
state court. The address of Puglisi & Associates is 850 Library Avenue, Suite 204, P.O. Box 885, Newark, Delaware 19715.
Emerging Growth Company
We are an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act (the “JOBS Act”). Thus, we may take advantage of
certain exemptions from various reporting requirements that are applicable to public companies generally. For example, we have elected not to have our
independent registered public accounting firm provide an attestation report on the effectiveness of our internal control over financial reporting, as would
otherwise be required by Section 404(b) of the Sarbanes-Oxley Act (“S-OX”).
We will cease to be an “emerging growth company” upon the earliest of:
·
·
·
·
December 31, 2018, which is the last day of the fiscal year in which the fifth anniversary of our initial public offering in the United States
has occurred;
the last day of the fiscal year in which our annual gross revenues are $1 billion or more;
the date on which we have, during the previous three-year period, issued more than $1 billion in non-convertible debt securities; or
the date we qualify as a “large accelerated filer” with at least $700 million of equity securities held by non-affiliates.
The JOBS Act also provides that an “emerging growth company” can utilize the extended transition period provided in Section 7(a)(2)(B) of the
Securities Act, for complying with new or revised accounting standards. However, we have chosen to “opt out” of such extended transition period, and, as a
result, we will comply with new or revised accounting standards on the relevant dates on which adoption of such standards is required for companies that are
not “emerging growth companies.” Section 107 of the JOBS Act provides that our decision to opt out of the extended transition period for complying with
new or revised accounting standards is irrevocable.
40
Capital Expenditures
For a discussion of our capital expenditures, see “Item 5. Operating and Financial Review and Prospects—Liquidity and Capital Resources.”
Business Overview
We are an orphan drug focused, plasma-derived protein therapeutics company with an existing marketed product portfolio and a robust late-stage
product pipeline. We use our proprietary platform technology and know-how for the extraction and purification of proteins from human plasma to produce
AAT in a high purity, liquid form, as well as other plasma-derived proteins. AAT is a protein derived from human plasma with known and newly discovered
therapeutic roles given its immuno-modulatory, anti-inflammatory, tissue protective and antimicrobial properties. Our flagship product, Glassia, is the first
and only liquid, ready-to-use, intravenous plasma-derived AAT product approved by the FDA. We market Glassia through a strategic partnership with Shire
in the United States. under which the minimum aggregate revenue for Glassia for the years 2017 to 2020 is expected to reach approximately $237 million and
may be expanded to $288 million during that period. We also market Glassia in other counties through local distributors. In addition to Glassia, we have a
product line consisting of about nine other pharmaceutical products in our Proprietary Product's segment, which are marketed in 20 countries, including
Israel, Russia, Brazil, India and other countries in Latin America, Africa and Asia. We currently have five late-stage plasma-derived protein products in
development, including Inhaled AAT for AATD, for which we completed a pivotal Phase II/III clinical trial in Europe and filed the Marketing Authorization
Application ("MAA") with the EMA in March 2016. The MAA is currently being examined by the EMA and we anticipate that we will receive marketing
authorization for our Inhaled AAT for AATD from the EMA by the fourth quarter of 2017 and launch Inhaled AAT for AATD in 2018 in Europe. We also
completed a Phase II clinical trial of our Inhaled AAT for AATD in the United States, which met the primary endpoint and we plan to initiate a Phase III study
in U.S.A. after we receive regulatory guidance from the FDA. See “—Our Product Pipeline and Development Program—Inhaled Formulations of AAT—
AATD.” In addition, we have completed a pivotal Phase II/III US clinical trial for anti-rabies immunoglobulin as a post-exposure prophylaxis, which
successfully met the trial’s primary endpoint of non-inferiority when measured against an IgG reference product. We filed a Biologics License Application
(“BLA”) with the FDA in August 2016 for this product. In addition to our propriety products, we leverage our expertise and presence in the Israeli market by
distributing more than ten complementary products in Israel that are manufactured by third parties.
Glassia is an intravenous AAT product that is indicated for chronic augmentation and maintenance therapy in adults with emphysema due to AATD.
AAT is a naturally occurring protein found in a derivative of plasma known as fraction IV. AAT regulates the activity of certain white blood cells known as
neutrophils and reduces cell inflammation. Patients with genetic AATD suffer from a chronic inflammatory state, lung tissue damage and a decrease in lung
function. We believe that our second generation AAT product, Inhaled AAT for AATD, is currently the only aerosolized AATD treatment in advanced stages
of clinical development. We believe that Inhaled AAT for AATD will increase patient convenience and reduce the need for patients to use intravenous
infusions of AAT products, thereby further reducing the risk of infection, decreasing the need for clinic visits or nurse home visits and reducing medical costs.
In addition, because Inhaled AAT for AATD would be delivered directly to the affected tissue through a nebulizer using a lower dosage, we believe that this
product, if approved, will enable us to treat significantly more patients from the same amount of plasma and production capacity and therefore increase our
profitability. Additionally, we have successfully completed a Phase I/II clinical study in Israel for newly diagnosed Type-1 diabetes (“T1D”) and have an
ongoing Phase II clinical study for this indication in Israel. In November 2016, we initiated a Phase II/III clinical trial for the treatment of acute GvHD in
collaboration with Shire in the United States. A Phase I/II proof-of-concept (“POC”) clinical study for the treatment of steroid-refractory acute GvHD, a study
also conducted in cooperation with Shire, is still ongoing at the Fred Hutchinson Cancer Research Center in Seattle, Washington. We have also initiated a
Phase II clinical study with our intravenous AAT product to prevent lung transplant rejection. We have also completed Phase II clinical studies in Israel for
additional novel indications, using formulations of AAT through Inhalation, for cystic fibrosis and bronchiectasis.
41
Our products are produced using our advanced proprietary technologies and know-how for the separation and purification of proteins derived from
human plasma. We produce our plasma-derived protein therapeutics in our state-of-the-art, cGMP compliant, FDA-approved, large scale production facility
located in Beit Kama, Israel.
We operate in two segments: the Proprietary Products segment, in which we develop and manufacture plasma-derived therapeutics and market them
in 20 countries, and the Distribution segment, in which we distribute drugs manufactured by third-parties for critical use in Israel, most of which are produced
from plasma or its derivative products. We have derived approximately 52%, 38% and 37% of our total revenues in the years ended December 31, 2016,
2015 and 2014, respectively, from sales in the United States, approximately 5%, 5% and 7% of our total revenues in the years ended December 31, 2016,
2015 and 2014, respectively, from sales in Europe, approximately 4%, 4% and 3% of our total revenues in the years ended December 31, 2016, 2015 and
2014, respectively, in Asia (excluding Israel) and 5%, 9% and 7% of our total revenues in the years ended December 31, 2016, 2015 and 2014, respectively,
from Latin America.
Our Product Portfolio
Our products include plasma-derived protein therapeutics that are either produced in our Proprietary Products segment or marketed and sold in our
Distribution segment.
Proprietary Products Segment
Our products in the Proprietary Products segment consist of plasma-derived protein therapeutics that are administered by injection or infusion. We
also manufacture certain products from synthetic raw materials or from raw materials derived from animal sources.
42
We currently have products that target four product categories: respiratory, immunoglobulins, critical care and other. Our flagship product in the
Proprietary Products segment is Glassia, sales of which, for the years ended December 31, 2016, 2015 and 2014 approximately 77%, 70% and 66% of our
total revenues, respectively, in the Proprietary Products segment. Revenue from our intravenous AATD products comprised approximately 56%, 43% and
42% of our total revenues for the years ended December 31, 2016, 2015 and 2014, respectively. Sales of KamRAB and KamRho (D) for the years ended
December 31, 2016, 2015 and 2014 accounted for the substantial balance of total revenues in the Proprietary Products segment.
Product
Respiratory
Glassia (or Respira/RespiKam/Ventia
in certain countries)
Indication
Active Ingredient
Geography
Intravenous AATD
Alpha-1 Antitrypsin
United States, Israel, Russia,
Immunoglobulins
KamRAB
Prophylaxis of rabies disease
KamRho (D) IM
Prophylaxis of hemolytic disease of newborns
(human)
Slovenia*, Brazil, Argentina, Cuba,
Turkey, Colombia**
Anti-rabies
immunoglobulin
(human)
Rho(D)
immunoglobulin
(human)
Israel, India, Thailand, El Salvador,
Australia, Russia*, Mexico*, Georgia*
and Korea
Israel, Brazil, India, Argentina,
Paraguay, Chile, Russia, Kenya,
Nigeria, Sri Lanka*, Thailand** and
the Palestinian Authority
KamRho (D) IV
Treatment of immune thermobocytopunic purpura Rho(D)
Israel, India*, Sri Lanka* and
Snake bite antiserum
Treatment of snake bites by the Vipera palaestinae
Anti-snake venom
Israel*
and Echis coloratus
Other Products
Heparin Lock Flush
To maintain patency of indwelling IV catheter
Heparin sodium
Israel*
designed for intermittent injection therapy or blood
sampling
Kamacaine 0.5%
Local or regional anesthesia or analgesia during
Bupivacaine HCl
Israel
immunoglobulin
(human)
Argentina*
surgery, diagnostic and therapeutic procedures and
obstetrical procedures. Spinal anesthesia for
surgery
Human transferrin (diagnostical
grade)
___________
* We have regulatory approval, but have not marketed the product in this country in 2016.
** Product was registered, but we have not yet started sales.
Not for human use
Transferrin
United States, Israel, Germany, France
and Netherlands
Respiratory — Glassia
Glassia is an intravenous AAT product produced from fraction IV that is indicated by the FDA for chronic augmentation and maintenance therapy in
adults with emphysema due to congenital AATD. While Glassia does not cure AATD, it supplements the patient’s insufficient physiological levels of AAT
and is administered as a chronic treatment. As such, the patient must take Glassia indefinitely over the course of his or her life in order to maintain the
benefits provided by it.
In the United States and Europe, we believe that AATD is currently significantly under-identified and under-treated, as we estimate that only
approximately 6% and 2-3% of all potential cases of AATD are treated in the United States and Europe, respectively, with an aggregate of up to an estimated
200,000 patients suffering from AATD, of which less than 10% have been diagnosed. According to a 2013 report of the Marketing Research Bureau, the
annual cost to the patient of AATD treatment is between $80,000 and $100,000 per patient. In the United States, in some of the European countries and in
Israel, we believe that the majority of the cost of treatment is covered by medical insurance programs.
We estimate that the potential world market for AAT products is significantly larger than current consumption indicates. We believe that the primary
reasons for this are the non-availability of AAT products in many countries, under diagnosis of patients suffering from AATD, expensive and protracted
registration processes required to commence sales of AAT products in new markets and the absence of insurance reimbursement in various countries. As
AATD can be diagnosed with a simple blood test, we expect diagnosis of AATD to increase going forward as awareness of AAT increases.
Glassia is the only AAT product in the world that is approved for use in a high purity liquid state which is ready for infusion and does not require
reconstitution and mixing before injection, as is required from competing products. Additionally, in June 2016, the FDA approved an expanded label of
Glassia for self-infusion at home after appropriate training. Glassia has a number of advantages over other intravenous AAT products, including the reduction
of the risk of contamination during the preparation and infection during the infusion, reduced potential for allergic reactions due to the absence of stabilizing
agents, simple and easy use by the patient or nurse, and the possible reduction of the nurse’s time during home visits, in the clinic or in the hospital and the
ability to self- infusion at home.
43
Currently, Glassia has been approved in six countries. It is sold in five of those countries and also is sold in two additional countries, where it has not
been approved, on a non-registered named-patient basis. The majority of sales of Glassia are in the United States, where Glassia was approved by the FDA in
July 2010 and sales began in September 2010. As part of the approval, the FDA requested that we conduct post-approval Phase IV clinical trials, as is
common in the pharmaceutical industry, aimed at collecting additional safety and efficacy data for Glassia. In 2010, we submitted our proposed Phase IV
clinical trials to the FDA. Such Phase IV clinical trials began in 2015. Pursuant to our agreement with Shire, the Phase IV clinical trials are financed and
managed by Shire.
We market Glassia in the United States through our partnership with Shire. We market Glassia in Israel by ourselves and in five other countries
through our local distributors. Sales to Shire accounted for approximately 52%, 37% and 36% of our total revenues in the years ended December 31, 2016,
2015 and 2014, respectively. We plan to submit Glassia for marketing approval in additional countries. Revenues from our intravenous AATD products have
grown from approximately $0.6 million in 2009 to $43.2 million in 2016, representing a 82% compound annual growth rate.
Immunoglobulins
KamRAB
KamRAB is a prophylactic treatment against rabies infection that is administered to patients after exposure to an animal suspected of being infected
with rabies. KamRAB is a protein therapeutic derived from hyper-immune plasma, which is plasma that contains high levels of antibodies from donors that
have been previously exposed to rabies by an active rabies vaccine. KamRAB is administered by a one-time injection, and the precise dosage is a function of
the patient’s weight.
According to the World Health Organization, each year, more than 15 million people worldwide are exposed to potential rabies infection. This is
estimated to prevent hundreds of thousands of rabies deaths annually. We believe that there are market opportunities for KamRAB in developing countries, as
well as in the United States and Canada. In many developing countries, patients do not receive treatment for suspected rabies due to the lack of availability of
healthcare resources. In the United States, there is currently only one significant provider of anti-rabies immunoglobulin and we believe that healthcare
providers may seek to diversify their source of supply if a competing high-quality product were approved for sale.
We began selling KamRAB in certain countries in Asia and Latin America in 2003, where sales of the product have steadily increased. We sell
KamRAB in nine countries, received regulatory approval to market KamRAB in three other countries and are pursuing receipt of approval to market in the
United States. In April 2007, we received approval from the FDA to commence Phase II/III clinical trials of KamRAB and in January 2010, the FDA
approved significantly shorter clinical trials. The trial began in the second quarter of 2013 and was completed in 2014. The trial evaluated the safety and
effectiveness of KamRAB and assessed whether KamRAB interferes with the development of self-active antibodies. We announced that we successfully met
the trial’s primary endpoint of non-inferiority when measured against an IgG reference product. The Phase II/III clinical trial was a prospective, randomized,
double-blind, non-inferiority study of 118 healthy subjects. The study evaluated pharmacokinetic (PK) parameters of anti-rabies IgG levels in serum at
different time points and assessed whether Kamada’s IgG interferes with the development of self-active antibodies. In addition, safety and tolerability were
assessed. The trial’s primary end point measured the anti-rabies titer on day 14 as well as on additional time points for secondary end points, following drug
infusion and infusion of an active vaccine as recommended by the standard-of-care. The primary endpoint was designed to determine non-inferiority with a
-10% margin. Top-line results showed that the primary endpoint of non-inferiority was met. Results showed that Kamada’s IgG was safe and well tolerated
with no drug-related Serious Adverse Events (SAEs) experienced. Based on the trial's results, we submitted a BLA with the FDA in September 2016 and we
expect to launch KamRAB in the United States in 2017, if approved by the FDA. In July 2011, we signed a strategic distribution and supply agreement with
Kedrion S.p.A for the clinical development and marketing in the United States of KamRAB, pursuant to which Kedrion agreed to bear all the costs required
for the Phase II/III clinical trials. See “— Strategic Partnerships — Kedrion.”
44
KamRho (D)
KamRho (D) is indicated for (i) the prevention of hemolytic disease of the newborn (“HDN”), which is a blood disease that occurs where the blood
type of the mother is incompatible with the blood type of the fetus; and (ii) the treatment of immune thrombocytopenic purpura (“ITP”), which is thought to
be an autoimmune blood disease in which the immune system destroys the blood’s platelets, which are necessary for normal blood clotting. KamRho (D) is
produced from hyper-immune plasma and is administered through intra-muscular injection (KamRho (D) IM) or through intravenous infusion (KamRho (D)
IV).
According to academic research, approximately 15% of Caucasian women are Rh-negative and, if left untreated, HDN would affect one percent of
all newborns and would be responsible for the death of one baby out of every 2,200 births. In addition, academic research estimates that ITP affects
approximately five out of every 100,000 children per year, and two of every 100,000 adults per year worldwide, although some will recover without
treatment. We have completed the registration process for Kam Rho (D), and are selling it in ten countries in Israel, Latin America, Asia, Africa and Eastern
Europe.
Snake Bite Antiserum
Our snake bite antiserum product is used for the treatment of humans that have been bitten by the most common Israeli viper (Vipera palaestinae)
and by the Israeli Echis (Echis coloratus). The venom of these snakes is poisonous and causes, among other symptoms, severe immediate pain with rapid
swelling. These snake bites can lead to death if left untreated. Our snake bite antiserum is produced from hyper-immune serum that has been derived from
horses that were immunized against Israeli viper and Israeli Echis venom. This product is the only treatment on the market for Vipera palaestinae and Echis
coloratus snake bites in Israel.
We developed the snake bite antiserum pursuant to an agreement with the IMOH entered into in March 2009. We completed construction of the
production facilities and laboratories for the product, and successfully passed the IMOH inspections. We began production in August 2011 and commenced
sales to the IMOH in 2012. The agreement with the IMOH is renewable for up to ten additional one-year periods.
Other Products
We also sell additional critical care products including Heparin, an anticoagulant, and Kamacaine, an anesthetic for surgery or obstetric procedures
and Transferrin, which is used as a cultural medium for diagnostic assays and cell cultures.
Distribution Segment
Our primary products in the Distribution segment include pharmaceuticals for critical use delivered by injection, infusion or inhalation. We leverage
our expertise and presence in the plasma-derived protein therapeutics market to distribute products in Israel that we believe complement our products in the
Proprietary Products segment. Most of the products in our Distribution segment are produced from plasma or plasma-derivatives, and are manufactured by
European companies. IVIG is our primary product in the Distribution segment, comprising approximately 61%, 61% and 70% of total revenues in the
Distribution segment for the years ended December 31, 2016, 2015 and 2014, respectively. Sales of IVIG accounted for approximately 17%, 24% and 18% of
our total revenues for the years ended December 31, 2016, 2015 and 2014, respectively.
45
The following table sets forth our primary products in our Distribution segment.
Product
Respiratory
Bramitob
Indication
Active Ingredient
Management of chronic pulmonary infection due to pseudomonas aeruginosa in
Tobramycin
patients six years and older with cystic fibrosis
FOSTER
Regular treatment of asthma where use of a combination product (inhaled
corticosteroid and long-acting beta2-agonist) is appropriate
Beclomethasone
Formoterol fumarate
dipropionate,
Immunoglobulins
IVIG 5%
Varitect
Treatment of various immunodeficiency-related conditions
Preventive treatment after exposure to the virus that causes chicken pox and zoster
Gamma globulins (IgG) (human)
Varicella zoster immunoglobulin (human)
herpes
Zutectra
Prevention of hepatitis B virus (HBV) re-infection in HBV-DNA negative patients
Human hepatitis B immunoglobulin
Hepatect CP
Megalotect
Critical Care
Heparin
injection
6 months after liver transplantation for hepatitis B induced liver failure
Prevent contraction of Hepatitis B by adults and children older than two years
Contains antibodies that neutralize cytomegalovirus viruses and prevent their
Hepatitis B immunoglobulin (human)
CMV immunoglobulin (human)
spread in immunologically impaired patients
sodium
Treatment of thrombo-embolic disorders such as deep vein thrombosis, acute
arterial embolism or thrombosis, thrombophlebitis, pulmonary embolism, fat
embolism. Prophylaxis of deep vein thrombosis and thromboembolic events
Heparin sodium
Albumin
Coagulation Factors
Factor VIII
Factor IX
Vaccinations
IXIARO
Maintains a proper level in the patient’s blood plasma
Human serum Albumin
Treatment of Hemophilia Type A diseases
Treatment of Hemophilia Type B disease
Coagulation Factor VIII (human)
Coagulation Factor IX (human)
Active immunization against Japanese encephalitis in adults, adolescents, children
and infants aged 2 months and older
Japanese encephalitis purified inactivated
vaccine
Our Product Pipeline and Development Program
We are in various stages of clinical development of new product candidates for our Proprietary Products segment. The following table sets forth our
primary product pipeline in our Proprietary Products segment and each such product’s stage of clinical trials:
__________
(1)
“IV” represents intravenous administration of the product. “IH” represents inhaled administration of the product. “IM” represents intramuscular
administration of the product.
46
(2)
Phase I and II are completed in Israel. Phase II/III is completed in Europe. Phase II began in first quarter of 2014 in the United States and completed in
the third quarter of 2016.
(3)
Phase I and II are completed in Israel.
(4)
Phase II clinical trials in Israel for newly diagnosed cases of Type-1 diabetes began in first quarter of 2014.
(5)
Phase II/III clinical trials are completed. BLA has been submitted in U.S.
(6) Orphan drug designation in the United States.
(7) Orphan drug designation in the European Union.
Inhaled Formulations of AAT
We are in various stages of development of inhaled formulations of AAT administered through the use of a custom-designed nebulizer. The nebulizer
was developed by PARI for several indications in the respiratory field, including the treatment of AATD, cystic fibrosis and bronchiectasis.
AATD
We have been able to leverage our expertise gained from the production of Glassia to develop a stable, high purity Inhaled AAT for AATD, an
inhaled AAT product candidate for the treatment of AATD. Existing treatments for AATD require weekly intravenous infusions of AAT therapeutics. We
believe that Inhaled AAT for AATD will significantly improve the patient’s disease condition and the quality of life of the patients versus current invasive
weekly treatment that requires uncomfortable infusion, consumption of time and administration by a medical professional. If approved, Inhaled AAT for
AATD will be the first AAT product that is not required to be delivered intravenously but, instead is administered by a user-friendly, lightweight and silent
nebulizer in two short daily sessions. We believe that Inhaled AAT for AATD will increase patient convenience and reduce or replace the need for patients to
use intravenous infusions of AAT products, thereby further reducing the risk of infection, decreasing the need for clinic visits or nurse home visits and
reducing medical costs. Because of the smaller amount of AAT product used in Inhaled AAT for AATD (since it is applied directly to the site of action rather
than administered systematically) we believe that this product, if approved, will enable us to treat significantly more patients from the same amount of plasma
and production capacity and therefore increase our profitability.
The current standard care for AATD in the United States and in certain European countries is intravenous infusion of an AAT therapeutic. We
estimate that only 2% of the AAT dose reaches the lung when administered intravenously. We have conducted a study demonstrating that administration of
inhaled formulations of AAT through inhalation results in greater dispersion of AAT to the target lung tissue including the lower lobes and lung periphery.
Accordingly, we believe that an inhaled formulation of AAT would require a significantly lower therapeutic dose and would be more effective in reducing
inflammation of the lung tissue and inhibiting the uncontrolled neutrophil elastase that causes the breakdown of the lung tissue and emphysema. In addition,
treatment by inhalation will enable the treatment of up to four to five times more patients with the same amount of AAT currently used by one patient for
intravenous infusion. In addition, self-administration by inhalation is more convenient than intravenous infusion and would also reduce the burden on
healthcare providers to administer treatments.
47
Inhaled AAT for AATD has been designated as an orphan drug for the treatment of AATD in the United States and Europe.
A double blind placebo controlled and randomized Phase II/III pivotal trial, under EMA guidance, started in January 2010 and was completed at the
end of 2013. A total of 168 patients participated in the trial in seven countries in Europe and Canada. Subjects in this trial were administered with a daily dose
of Inhaled AAT for AATD or equivalent dose of placebo for 50 consecutive weeks. The primary endpoint for the trial was the time from randomization to the
first event-based exacerbation with a severity of moderate or severe. Other endpoints, which were secondary and tertiary, included other exacerbation
measures, lung function, CT scan and quality of life. The trial was 80% powered based on the number of exacerbation events collected in the study, in order
to detect a difference between the two groups one year later. A 20% difference between the two groups was required to prove efficacy and is considered to be
clinically meaningful and would allow the decision to prescribe treatment. An open label extension of an additional 50 weeks on active drug was offered to
study participants in most sites once they completed the initial 50 week period. Treatment in the open label extension of the trial was completed in November
2014.
Results from our double blind part of the trial indicated that the primary endpoint was not met, although a potentially encouraging signal was seen in
lung function measurement. We reported in September 2014 the results of the study, stating that the primary endpoint of “time to the first moderate or severe
exacerbation event” did not show a statistically significant difference between inhaled formulation of AAT and placebo in the Intent-to-Treat (“ITT”)
population and that the study did not show statistically significant differences between inhaled formulation of AAT and placebo in the secondary exacerbation
endpoints measured in the ITT population.
Despite not meeting the primary or secondary endpoints for the ITT population, lung function parameters, including Forced Expiratory Volume in
One Second (“FEV1”) % of Slow Vital Capacity (“SVC”), FEV1 % predicted, FEV1 (liters) and Diffusing capacity (“DLCO”), which were collected to
support safety endpoints, showed concordance of a potential treatment effect in the reduction of the inflammatory injury to the lung that is known to be
associated with a reduced loss of respiratory function.
Our inhaled formulation of AAT therapy showed clinically relevant changes in various lung function measurements for the entire ITT population, a
few of which were statistically significant. This suggests evidence of potential therapeutic activity resulting in a clinically relevant and meaningful effect. We
initiated discussions with the FDA to identify the clinical and regulatory pathway for registration in the United States and we plan to conclude those
discussions in 2017.
Based on such results, we have held pre-submission meetings with the European rapporteur and co-rapporteur in December 2014 with regard to
filing MAA with the EMA for our Inhaled AAT for AATD. The co-rapporteurs advised that they would consider the entire study data once submitted,
including post hoc analysis and will not reject the application simply because the primary endpoint of the study was not met. They agreed that the application
fulfills the requirements relating to unmet medical need and benefit to public health and that it may meet the scope of approval if we convincingly prove the
positive benefit-risk balance of the product, by the time of MAA filing. The co-rapporteurs have requested the addition of supplemental data analyses that
may address the benefit-risk balance and support the already available safety and efficacy data.
We performed these post hoc analyses in accordance with guidance received following the meeting with the European rapporteur and co-rapporteur.
Results of the post hoc analyses indicate that after one year of daily inhalation of our Inhaled AAT for AATD, clinically and statistically significant
improvements were seen in spirometric measures of lung function, particularly in bronchial airflow measurements FEV1 (L), FEV1% predicted and
FEV1/SVC. These favorable results were even more evident when analyzing the overall treatment effect throughout the full year.
48
For lung function, overall one year effect:
·
·
·
FEV1 (L) rose significantly in AAT treated patients and decreased in placebo treated patients (+15ml for AAT vs. -27ml for placebo, a 42 ml
difference, p=0.0268)
There was a trend towards better FEV1% predicted (0.54% for AAT vs. -0.62% for placebo, a 1.16% difference, p=0.065)
FEV1/SVC% rose significantly in AAT treated patients and decreased in placebo treated patients (0.62% for AAT vs. -0.87% for placebo, a 1.49%
difference, p=0.0074)
For lung function change at week 50 vs. baseline:
·
·
·
There was a trend towards reduced FEV1 (L)decline (-12ml for AAT vs. -62ml for placebo, a 50 ml difference, p=0.0956)
There was a trend towards a reduced decline in FEV1% predicted (-0.1323% for AAT vs. -1.6205% for placebo, a 1.4882% difference, p=0.1032)
FEV1/SVC% rose significantly in AAT treated patients and decreased in placebo treated patients (0.61% for AAT vs. -1.07% for placebo, a 1.68%
difference, p=0.013)
Additional data collected throughout the trial for exacerbation symptom score and well-being score. The changes in symptoms of dyspnea and well-
being are suggested as those that most influence the change in patients’ health, and quality of life status and determine the need for additional therapy. The
results showed trends in favor of the AAT-treated group for both dyspnea and well-being but were not statistically significant. The improvement in dyspnea
and well-being further correlates with the fact that patients inhaling AAT had better preserved airflow than patients inhaling placebo.
Safety data of Inhaled AAT for AATD in this Phase II/III trial remains supportive and consistent with previous Inhaled AAT for AATD studies
conducted by us, and continues to demonstrate a high safety and tolerability profile.
We filed the MAA for our Inhaled AAT for AATD during the first quarter of 2016 and we responded to the day-120 comments received from the
EMA in January 2017.
During March 2014, we initiated Phase II trials in the United States. The trial was completed in May 2016. This trial is intended to serve as a
supplementary trial to the European Phase II/III trial and was designed to incorporate parameters required by the FDA. This Phase II, double-blind, placebo-
controlled study explored the ELF and plasma concentration as well as safety of Inhaled AAT in AATD subjects. The subjects received one of two doses of
Inhaled AAT or placebo. The study involved the inhalation of 80 mg or 160 mg of human AAT or placebo twice daily via the eFlow® device for 12 weeks.
Following the 12 week double blind period, the subjects were offered to participate in an additional 12 weeks open label period during which they receive
only Inhaled AAT therapy. In December 2015, we completed the enrollment of patients for the U.S. Phase II clinical trial, and in August 2016, we reported
positive top-line results, according to which we met the primary endpoint.
AATD patients treated with our Inhaled AAT product in such U.S. Phase II clinical trial, demonstrated a significant increase in endothelial lining
fluid (ELF) AAT antigenic level compared to the placebo group [median increase 4551 nM, p-value<0.0005 (80 mg/day, n=12), and 13454 nM, p-
value<0.002 (160mg/day, n=12)]. These results are more than twice the increase of ELF antigenic AAT level (+2600 nM) observed in Kamada’s previously
completed intravenous (IV) AAT pivotal study (60mg/kg/week). Antigenic AAT represents the total amount of AAT in the lung, both active and inactive. The
study results also showed that our Inhaled AAT is the most efficient way of delivering therapeutic amounts of AAT to the primary sites of potential lung
injury. In addition, ELF Anti-Neutrophil Elastase inhibitory (ANEC) level also increased significantly [median increase 2766 nM, p-value<0.0005
(80mg/day) and 3557 nM., p-value<0.004 (160 mg/day)]. The increase in ELF ANEC level was also more than twice that demonstrated in our previously
completed IV AAT pivotal study. The ANEC level represents the active AAT that can counterbalance further damage by neutrophil elastase.
49
We included the data from this Phase II in our response to the day-120 comments received from the EMA. We are also planning to submit this data
to the FDA as a part of our discussions during 2017 in order to obtain a regulatory pathway and development guidance for the Inhaled AAT to treat AATD in
U.S.A.
An inhaled formulation of AAT was also investigated in two separate Phase I trials (Phase I-a and Phase I-b). These trials were performed in
accordance with the scientific advice provided by the EMA under the product’s orphan designation status. In both trials, the inhaled formulation of AAT and
the control product, a placebo, were administered using the “eFlow” nebulizer. Phase I-a was a single-blind, randomized, single-dose escalation, placebo-
controlled study in 24 subjects. Phase I-b was a single-blind, randomized, repeated-dose, dose ranging, placebo-controlled study in 15 subjects. Both trials
were targeted to explore safety and tolerability and were completed successfully, concluding high safety and tolerability of the product and no signs of
immunogenicity or allergic reactions, allowing the continuation of the later development stages.
We also conducted a Phase II lung deposition trial in three different subject populations: patients with cystic fibrosis, patients with emphysema and
healthy subjects. The results of the Phase II trial indicated highly efficient deposition of AAT, including to periphery regions, lower lobes and mid and upper
lobes. No safety issues were noted in this trial.
AAT by Infusion for Treatment of Graft-Versus-Host Disease
GvHD is a common complication following an allogeneic tissue transplant. It is commonly associated with stem cell transplant, but the term also
applies to other forms of tissue graft. Immune cells (white blood cells) in the tissue (the graft) recognize the recipient (the host) as "foreign". The transplanted
immune cells then attack the host's body cells.
GvHD occurs in 30-70% of patients who undergo a medical procedure of allogeneic hematopoietic stem cell transplantation (HSCT), usually as a
treatment to leukemia or other blood cancer or blood conditions. HSCT is a stem cell transplantation that is usually derived from an external (allogeneic) bone
marrow donor. One of the most common and dangerous complications of HSCT is GvHD. GvHD is expressed in damage to the recipients’ tissues including
damage to the liver, gastrointestinal system, skin and mucosal tissues, and is a major cause of death in these patients.
Intravenously administered glucocorticoids, such as prednisone, are the standard treatment in acute GvHD and chronic GvHD. The use of these
glucocorticoids is designed to suppress the T-cell-mediated immune onslaught on the host tissues; however, in high doses, this immune-suppression raises the
risk of infections and cancer relapse. In addition, more than 50% of patients do not respond well to steroids and consequently have very low survival rates.
Preliminary human and animal studies indicate that AAT may reduce the severity of GvHD, which is one of the key, life threatening complications of
allogeneic stem cell transplantation. GvHD could result in significant damage to the recipients’ tissues including damage to the liver, gastrointestinal tract,
skin and mucosal membranes. The immuno-modulatory effect of AAT may attenuate inflammation by lowering levels of pro-inflammatory mediators such as
cytokines, chemokines and proteases that are associated with this severe disease. GvHD is a disease of unmet medical need and both the disease and current
therapy options carry considerable side effects. Given the favorable safety profile of our intravenous AAT product, we will continue to support the clinical
development of this potential indication and for possible regulatory submission. In April 2014, we announced the initiation of a POC Phase I/II clinical study
with our intravenous AAT product to treat Graft-Versus-Host Disease (GvHD) in cooperation with Shire, to be conducted at the Fred Hutchinson Cancer
Research Center in Seattle, Washington. We are evaluating whether our intravenous AAT product may decrease GvHD-related symptoms, including
progressive tissue damage and thereby potentially increase the survival rates of this complication and possibly reduce or eliminate the need for "steroid"
therapy. Results from this POC study in GvHD may also support global clinical development activities and may serve as a platform to apply for an expansion
of the AAT indications with the regulatory authorities to include general organ transplantation, based on a similar mechanism of action.
50
The POC phase I/II study is enrolling 24 patients with steroid-resistant GvHD following allogeneic bone-marrow stem cell transplant who will
receive six to ten doses of intravenously delivered AAT to determine safety, optimal dose and clinical response. To date, 18 patients with hematologic
malignancies were enrolled, 6 of which were enrolled in the first cohort, 6 in the second and 6 in the third. Patients showing no clinically satisfactory
responses to steroids were given AAT at 90 mg/kg IV on day 1, followed by 30 mg/kg (first cohort) or 60 mg/kg (second cohort) or 90 mg/kg (third cohort)
every other day for a total of 8 doses (15 days). All subjects had GvHD of Grade III or IV with stage 4 intestinal involvement.
Preliminary results from the 1st cohort indicated that continuous administration of AAT as therapy for steroid resistant gut GvHD is feasible in the
subject population. Healing of the bowel mucosa was evidenced by a decreased diarrhea, intestinal protein loss, including AAT, and endoscopic evaluation.
Additionally, following examination of pro-inflammatory cytokines, in the preliminary results AAT administration suppressed serum levels of pro-
inflammatory cytokines and interfered with GvHD biomarkers.
In January 2016, after receiving results from the 2nd cohort, we reported further positive interim data from this Phase I/II clinical trial. We reported
on outcomes from the 12 subjects enrolled in cohorts 1 and 2 who were treated at two dose levels of AAT. The interim results showed that plasma AAT levels
increased in both cohorts and remained stable for the duration of treatment. Treatment responses were evaluated as “peak” response and at day 28. Eight of
the 12 subjects showed an overall response to treatment, four of which were complete responses and four were partial responses.
In May 2016, we reported a collaboration with myTomorrows, a provider of services to patients and physicians in need of diagnostic tests and drugs
in development, pursuant to which an early access will be provided throughout Europe to our proprietary AAT to treat GvHD. Through myTomorrows’ web-
based platform, our AAT is available to physicians and patients in Europe via Early Access Programs. These programs provide physicians and patients facing
unmet medical needs with access to development stage drugs in instances that meet regulatory requirements.
In November 2016, we initiated a Phase II/III clinical trial in GvHD in collaboration with Shire. This Phase II/III clinical trial is a two-part, multi-
center, prospective study to evaluate the safety and efficacy of G1-AAT IV as an add-on biopharmacotherapy to conventional steroid treatment in up to 168
patients with acute GvHD with lower gastrointestinal involvement (LGI-aGvHD). The first part of the trial is a single-arm, open-label and will include 20
patients, while the second is a placebo-controlled, double-blind with approximately 148 patients in two arms. The primary endpoint of the study will be
overall response (complete response (CR) and partial response (PR)) rate at Day 28. GvHD CR is complete resolution of all signs and symptoms of acute
GvHD in all organs without intervening salvage. GvHD PR is improvement of one stage in one or more organs involved in GvHD without progression in
other organs. Study results are expected to be available in 2020.
In December 2016, we received a positive Scientific Advice response from the Committee for Medicinal Products for Human Use (CHMP) of the
EMA focused on our development program in Europe for GvHD with lower gastrointestinal involvement. The response from the CHMP included important
guidance related to the design of our planned Phase II/III European study and the regulatory pathway for approval based on conducting such a study. We are
in the process of reviewing the guidance received and, following discussions with our European Scientific Advisory Board, we intend to submit a Clinical
Trial Authorization (CTA) application to the EMA in 2017 in order to conduct the Phase II/III study. We may conduct the European study in parallel with the
U.S. study.
51
The European Commission, acting on the recommendation from the Committee for Orphan Medicinal Products of the EMA, has designated our
proprietary human IV AAT as an orphan medicinal product to treat GvHD. We received Orphan Drug designation from the FDA for our AAT by IV to treat
GvHD. The orphan designation allows the awarded pharmaceutical company to benefit from incentives offered by the European Union to develop the
designated medicine for the rare indication.
AAT for Treatment of Lung Transplant Rejection
In 2015, we entered into collaboration with Shire on a Phase II clinical trial of our proprietary alpha-1 antitrypsin (AAT) treatment for the prevention
of lung transplant rejection that is currently performed in Israel. Under the agreement, Shire and we collaborate in the development and funding of the study.
This Phase II study was initiated in April 2016. The study is a randomized, open-label, single-site study of 30 lung transplant recipients to evaluate
the safety and efficacy of IV AAT on top of standard-of-care (SOC) versus SOC. The study is randomized 2:1 with 20 patients in the treatment group
receiving IV AAT treatment every other day for 14 days, then once every two weeks until week eight, followed thereafter by monthly treatments. The ten
patients in the control group will be treated with SOC, which includes systemic corticosteroids and immunosuppressants. Following one year of AAT
treatment, there will be a one-year follow-up. The primary endpoints of the study include safety and tolerability, the incidence of acute lung transplant
rejection and changes in Forced Expiratory Volume (FEV1) from baseline and overall effect (a measure of Bronchiolitis Obliterans (chronic rejection)).
Additional endpoints measured will include various inflammatory biomarkers and functional capacity.
The principal investigator in this study is Prof. Mordechai R. Kramer, M.D., Director of the Institute of Pulmonary Medicine, Rabin Medical Center
- Beilinson Hospital. Prof. Kramer, a renowned expert in pulmonary care and a top specialist in his field, is a full Professor at Tel Aviv University, Sackler
Faculty of Medicine. He completed several fellowships in the U.S. in pulmonary care and lung transplantation, and has published many articles in leading
scientific publications.
Lung transplant rejection occurs when the recipient’s immune system attacks the transplanted lung resulting in destruction of the transplanted lung
tissue. Around 20% of lung transplant recipients will experience an episode of acute rejection within the first year and approximately 48% and 76% of the
recipients will experience chronic rejection within five and 10 years respectively. Chronic rejection is also known as BOS (Bronchiolitis Obliterans
Syndrome).
Lung transplant is considered only for people with severe, end-stage lung disease, when patients will most likely die without the surgery and no other
options are available. The most common lung diseases for which people undergo lung transplant are Chronic Obstructive Pulmonary Disease, Idiopathic
pulmonary fibrosis, Cystic fibrosis and Idiopathic Pulmonary Arterial Hypertension.
52
To protect the new lung, patients are prescribed a variety of medications which suppress the body's natural immune response. These medications are
called "immunosuppressants," and they are intended to trick the immune system into believing that the new organ is not foreign, and therefore it is not
attacked. After transplantation, the patient will have to take immunosuppressant medications for the rest of the patient's life.
AAT by Infusion for Treatment of Newly Diagnosed Type-1 Diabetes
We have commenced the development of an additional indication for our AAT IV for its usage in the treatment of newly diagnosed cases of Type-1
Diabetes. Diabetes is an autoimmune disease in which the pancreatic beta cells responsible for secretion of insulin are attacked and destroyed by the immune
system. According to estimates by the U.S. Centers for Disease Control, more than 10 million persons throughout the world suffer from Type-1 Diabetes with
100,000 new patients diagnosed annually. According to estimates by the American Association for Type-1 Diabetes, approximately three million people in the
United States suffer from Type-1 Diabetes, with 30,000 new patients diagnosed annually.
Studies have demonstrated that even though the level of AAT protein in Type-1 Diabetes patients may be normal, the activity of the AAT protein in
these patients is significantly lower than in healthy people. Because AAT has proven anti-inflammatory responses, we believe that treatment by AAT protein
in the initial stages after diagnosis of Type-1 Diabetes may prevent or may delay the inflammation that is caused by the autoimmune destruction of the
pancreatic cells. As a result, we believe that AAT therapeutics may slow the progression of the development of newly diagnosed Type-1 Diabetes and
improve prognosis. A number of studies conducted recently, including those conducted using Glassia, as discussed below, have suggested that use of AAT
protein may delay the inflammatory process in the pancreatic cells and maintain or prolong cell function, which is increased by the secretion of insulin and
glycemic control. We believe that the use of Glassia for the treatment of newly diagnosed Type-1 Diabetes, unlike the current standard of care insulin
treatment, may prevent or slow the progression of the development of the disease. If demonstrated in further clinical studies, we believe that this product can
slow progression and delay the complications of diabetes, such as retinopathy, nephropathy and heart disease.
In December 2012, we completed Phase I/II clinical trials in Israel of human AAT (Glassia) for usage in the treatment of Type-1 Diabetes, which
suggested that AAT may slow disease progression, allow continued functionality of beta cells and improve glycemic control. The objective of the trials was to
examine the safety and efficacy of Glassia for treatment of newly diagnosed Type-1 Diabetes.
The study evaluated a pediatric population with recent onset type 1 diabetes (T1D) in a 37-week prospective, open-label, Phase I/II interventional
trial, constituting 24 recently diagnosed subjects who received 18 infusions of 40, 60, or 80 mg/kg/dose of AAT over 28 weeks. The primary endpoints were
safety and tolerability and secondary endpoints included glycemic control, C-peptide reserve, and autoantibody levels. Possible responders were defined as
individuals with peak C-peptide levels that declined less than 7.5% below baseline. No serious adverse events, diabetic ketoacidosis (DKA), or severe
hypoglycemic episodes were reported. Adverse events were dose-independent and transient. Glycemic control parameters improved during the study in all
groups, independent of dosage. Hemoglobin A1c (HbA1c) decreased from 8.43% to 7.09% (mean, p<0.001). At the end of the study, 18 subjects (75%) had a
peak C-peptide ≥0.2 pmol/mL. Eight subjects (33.3%) were considered possible responders and were characterized by shorter duration of T1D at screening
(54.5 ± 34.3 vs. 95.9 ±45.7 days, p=0.036) and greater decrease in their HbA1c during the study period (−2.94± 1.55 vs.−0.95± 1.83%, p=0.016).
An extension for this Phase I/II trial was initiated in 2013 and 19 subjects were enrolled in the extension portion of the trials in either the treatment
arm (n=10) or follow-up arm (n=9) and five subjects chose not to participate. The latest interim report from the extension study was presented following six
additional AAT infusions for subjects in the AAT treatment arm. Interim data from an average of 26 months post T1D diagnosis show that mean peak C-
peptide levels, a peptide which represents the endogenous insulin production and thereby the beta cell activity, were 0.40 pmol/ml and that 60% of these
patients exhibited a level ≥ 0.2 pmol/ml, which is considered to be a clinically meaningful trough level, which negatively correlates with future serious
diabetes complications. C- peptide data was not collected for the untreated patient group. In addition, patients receiving AAT continued to attain American
Diabetes Association (“ADA”) and International Society for Pediatric and Adolescent Diabetes (“ISPAD”) treatment targets of 7.5% for HbA1C. This is
considered the clinically desired level for glycemic control in pediatric diabetes patients who usually demonstrate a more severe or volatile form of T1D
disease compared with adults. Treated patients demonstrated an average HbA1C of 7.5% in comparison to 7.9% for the untreated patients. The majority of
treated patients (60%) had HbA1C levels lower or equal to 7.5% vs. 44% of the patients in the untreated group. Despite these important differences, these
were not found to be statistically significant, as this study was not powered to show statistical significance. Median insulin intake for the treated patients
group was lower than the untreated patient group, 0.6 IU/kg/d compared to 1.00 IU/kg/d, respectively (p = 0.025).
53
In March 2014, we began double-blind, randomized, placebo-controlled, multicenter Phase II/III trials evaluating the efficacy and safety of Glassia
in the treatment of new onset Type-1 Diabetes. This study is conducted at four pediatric Type-1 Diabetes medical centers in Israel and was designed to
evaluate beta cell functioning as measured by C-peptide parameters, glycemic control expressed in HbA1C levels, hypoglycemic events and insulin daily
dose, among others. We planned to enroll 192 patients randomized into two groups receiving AAT and one placebo group.
In December 2015, we reported that we will un-blind the current clinical trial at the planned interim analysis. We are of the opinion that this change
will accelerate the timeline for future commercialization of the product, should the analysis be positive. We managed to enroll about 70 patients by the end of
2015, and determined that this would be sufficient to allow us to explore the differences between treatment groups without the limitations of the blinding. To
date, the safety profile of AAT is excellent without any major adverse events both in the current trial, which includes pediatric patients, as well as in
commercial settings, where the drug has been used to treat hundreds of patients for its FDA approved indication. Topline results are expected in the second
half of 2017.
Cystic Fibrosis
We were developing an inhaled formulation of AAT for the treatment of cystic fibrosis, which formulation has been designated as an orphan drug in
Europe and the United States. Cystic fibrosis is a congenital disease that causes mucus to build up in the lungs, digestive tract and other areas of the body. The
Cystic Fibrosis Foundation estimates that approximately 70,000 people suffer from cystic fibrosis throughout the world. The rate of diagnosis of new patients
in the United States is approximately 1,000 per year. Treatment of cystic fibrosis continues throughout the patient’s life, and standard treatments are currently
limited to inhaled antibiotics and, in severe cases, lung transplantation.
During the second half of 2012, we received FDA approval for IND Phase II trials for the inhaled formulation of AAT for the treatment of AATD
and cystic fibrosis. A decision to start this trial has been postponed.
Previously, in August 2008, we completed a Phase II trial in 21 cystic fibrosis patients. The trial was a double-blind, randomized, placebo-controlled,
Phase II trial that sought to explore the safety and efficacy of an inhaled formulation of AAT in cystic fibrosis patients, and consisted of treatment periods of 1
day, 7 days and 28 days. No serious adverse events were reported in any of the patients and the safety listings did not indicate any safety concerns. The trial
concluded that the product was safe and well tolerated when inhaled daily for 28 days. A reduction of neutrophils and neutrophil elastase in sputum was
observed in the group receiving the inhaled formulation of AAT while no such reduction was observed in the placebo group. The results, while not
statistically significant due to small sample size, suggested an anti-inflammatory effect through the usage of the inhaled formulation of AAT in cystic fibrosis
patients. At present, the development of this product is suspended for priority reasons.
54
Bronchiectasis
We were also in the process of developing an inhaled formulation of AAT for the treatment of bronchiectasis, which formulation has been designated
as an orphan drug in the United States. Bronchiectasis is an illness causing blockage and infection of the lungs. According to research conducted by the Cystic
Fibrosis Foundation, in the United States alone, there are 100,000 persons suffering from bronchiectasis. Throughout the world, it is estimated that there are
about 600,000 persons suffering from bronchiectasis. Treatment of bronchiectasis continues throughout the patient’s life.
While we have not yet sought approval for clinical trials in the United States, we presented the findings to the FDA of a Phase II trial we conducted
in Israel, which was a double-blind, randomized, placebo-controlled trial in 21 bronchiectasis patients and aimed to explore the safety and efficacy of an
inhaled formulation of AAT in bronchiectasis patients for 12 weeks. The safety profile demonstrated was high and the product was determined as safe and
tolerable for a period of 12 weeks in bronchiectasis patients. Efficacy results were not statistically significant due to the small number of patients in the study
and to variability of the patients’ disease severity, but suggested a positive effect of AAT on decreasing inflammation of the lungs. At present, the
development of this product is suspended for priority reasons.
Other Indications
In addition, we believe that a number of additional potential indications may exist for this product candidate, including chronic obstructive
pulmonary disease, islets transplantation and general organ transplantations.
Recombinant AAT
In preparation for future increased demand for AAT resulting from greater awareness of AAT deficiency, as well as potential additional indications
for Alpha 1 Antitrypsin, which are currently in clinical development, we have initiated development activities in the recombinant human Alpha 1 Antitrypsin
("rhAAT) field. In November 2016, we signed a collaboration agreement between our company and Yissum, Research Development Company of the Hebrew
University of Jerusalem, for the development of an efficient and robust eukaryotic expression system for rhAAT. The goal of this development work is to
maximize protein yields and functionality. The collaboration is led by Dr. Tsafi Danieli, Head of the Protein Expression Facility at the Hebrew University of
Jerusalem. Dr. Danieli has a vast amount of experience in recombinant DNA technologies and protein production systems. Our collaboration with Yissum is
intended to maintain our innovative global leadership in the area of AAT development in multiple indications.
To ensure the success of this project, we have previously developed analytical methods (physicochemical, biochemical, in-vitro, and in-vivo) that
will help identify and characterize functional rhAAT. In addition, we have established a significant understanding of a favorable expression system and
growth conditions required to successfully develop an effective rhAAT.
Strategic Partnerships
We currently have strategic partnerships with a number of different companies regarding the development and/or distribution of our products in both
the Proprietary Products and Distribution segments. Certain of the strategic partnerships relating to our Proprietary Products segment are discussed below.
Shire (Glassia)
On August 23, 2010, we entered into a strategic partnership with Baxter International Inc. ("Baxter"). During 2015, Baxter assigned all its rights
under the partnership agreement to Baxalta US Inc. ("Baxalta"), an independent public company which spun- off from Baxter. In 2016, Shire completed the
acquisition of Baxalta, and as a result, all Baxalta's rights under the partnership agreement have been assigned to Shire.
55
The partnership arrangement with Shire includes three main agreements: (1) a distribution agreement, pursuant to which Shire is the sole distributor
of Glassia in the United States, Canada, Australia and New Zealand; (2) a licensing agreement, which grants Shire licenses to use our knowledge and patents
to produce, develop and sell Glassia and other products administered by transfusion; and (3) an agreement for Shire to supply us with fraction IV, a plasma
derivative, produced by Shire, as discussed under “— Manufacturing and Supply — Raw Materials — Fraction IV for Glassia.” As between us and Shire, we
retain all rights, including distribution rights, to any inhaled formulation of AAT in development, including Inhaled AAT for AATD. On October 5, 2016, we
signed a fifth amendment to the distribution agreement with Shire to extend the period of minimum purchases by Shire of Glassia until the end of 2020 and
increase the minimum purchases under the distribution agreement. Following the amendment, the minimum aggregate revenue for Glassia under such
extended agreement for the years 2017 to 2020 is expected to reach approximately $237 million and may be expanded to $288 million during that period,
excluding the royalty payments under the licensing agreement, which are not expected to begin prior to 2021.
Sales to Shire accounted for approximately 52%, 37% and 36% of our total revenues for the years ended December 31, 2016, 2015 and 2014,
respectively.
Distribution Agreement
Pursuant to the distribution agreement, we received an upfront and milestone payments of $22 million in total related to distribution rights.
Additionally, Shire is obligated to purchase a minimum amount of Glassia per year until the end of 2020. Pursuant to Shire’s minimum purchase obligations,
from 2017 until the end of 2020, we are entitled to receive minimum revenues of between $56.8 million and $63.1 million per year from Shire (the minimum
aggregate revenue for Glassia under such extended agreement for the years 2017 to 2020 is expected to reach approximately $237 million and may be
expanded to $288 million during that period). After 2020, Shire has no obligation to purchase a minimum amount of Glassia; however, Shire’s failure to
purchase a specified minimum amount of Glassia over a period of 24 consecutive months beginning in 2017 until the expiration of the agreement provides us
with the right to terminate the agreement. Shire is also obligated to fund required Phase IV clinical trials related to Glassia up to a specified amount. If the
costs of such clinical trials are in excess of this amount, we have agreed to fund a portion of the costs. We do not expect that the cost of the trials will exceed
the specified amount. In May 2016, we received a milestone payment from Shire as a result of Shire achieving an undisclosed sales milestone for Glassia.
The distribution agreement expires in 2040. In addition to customary termination provisions, either party may terminate the agreement, subject to
certain exceptions, in whole or solely with respect to one or more countries covered by the distribution agreement, if regulatory approval in one or more
countries covered by the distribution agreement is withdrawn or rejected and not reversed. Shire has the right to terminate the agreement, upon prior written
notice and after a period of time, in the event that Glassia is determined to materially infringe upon a third party’s intellectual property rights. In addition to
the minimum purchase termination right discussed above, we have the right to terminate the agreement upon prior written notice if Shire infringes upon our
intellectual property.
Following termination of the agreement, Shire is obligated to cease marketing, promoting or otherwise using Glassia and, at our election, sell all
remaining inventory of Glassia in the market or back to us at the relevant purchase price.
Technology License Agreement
The technology license agreement provides an exclusive license to Shire, with the right to sub-license to certain manufacturing parties, of our
intellectual property and know-how regarding the manufacture and additional development of Glassia for use in Shire’s production and sale of Glassia in the
United States, Canada, Australia and New Zealand. Shire agreed to pay us royalties at the rates specified in the agreement, which are in the low double digits
during the first 15 years and decreasing to less than 10% for the remainder of the period, once it begins to sell Glassia of its own production. We do not expect
that such production will begin prior to 2021. The technology license agreement sets forth a minimum amount of royalty payments of $5.0 million required to
be made by Shire per year beginning on the first year of commercial sales of Glassia produced by Shire.
56
Pursuant to the technology license agreement, we are entitled to receive payments for the achievement of certain milestones for an aggregate of up to
$20.0 million, of which we have already received $14.5 million. Of the milestone payments, $15.0 million are development-based milestones related to the
transfer of technology to Shire and $5.0 million are sales-based milestones.
The intellectual property rights for any improvements on the manufacturing process or formulations that we disclose to Shire belong to the party that
develops the improvements, with each party agreeing to cross-license the developed improvements to the other party. We retain an option to license any
intellectual property developed by Shire under the agreement that is not considered an improvement on the licensed technology. Additionally, Shire owns any
intellectual property it develops using the licensed technology for new indications for the intravenous AAT product, for which we retain an option to license at
rates to be negotiated. Any technology related to new indications for the intravenous AAT product developed by us during the royalty payments period will be
part of the licensed technology covered by the technology license agreement.
The technology license agreement expires in 2040. Either party may terminate the agreement, in whole or solely with respect to one or more
countries covered by the distribution agreement, pursuant to customary termination provisions. Shire also has the right to terminate the agreement, upon prior
written notice, in the event that: (i) our manufacturing process technology for Glassia is determined to materially infringe upon a third party’s intellectual
property rights, and we have not obtained a license to such third party’s intellectual property or provided an alternative non-infringing manufacturing process;
(ii) there are certain decreases in Glassia sales in the United States unless such decreases are due to transfers to Inhaled AAT for AATD; or (iii) the regulatory
approval process in the United States has been withdrawn or rejected as a result of our inaction or lack of diligent effort, provided such withdrawal or
rejection was not primarily caused by the breach by Shire of its obligations. We have the right to terminate the agreement, upon prior written notice: (i) if
Shire contests or infringes upon our intellectual property; (ii) if regulatory approval in one or more countries covered by the technology license agreement is
withdrawn or rejected and not reversed, provided it was not primarily caused by the breach by us of our obligations; (iii) in the event that Glassia produced by
Shire, other than as a result of our manufacturing process technology, is determined to materially infringe upon a third party’s intellectual property rights,
provided that the termination right is limited only to the country in which such judgment is binding; or (iv) if the first sale of Glassia produced by Shire has
not occurred by June 15, 2017 and Shire has not used commercially reasonable efforts to sell by that date. Following any termination, other than expiration of
the agreement, all licensed rights will revert to us. Upon expiration of the agreement, we are obligated to grant to Shire a non-exclusive, perpetual, royalty
free license.
Chiesi (Inhaled AAT for AATD product)
On August 2, 2012, we entered into an exclusive distribution agreement with Chiesi, a fully integrated European-based pharmaceutical company
focused on respiratory disease and special care products. Chiesi distributes its products in more than 60 countries and has 24 affiliates worldwide. It has a
direct commercial presence in Europe, the United States and in many important emerging markets.
We granted Chiesi the exclusive right to commercialize Inhaled AAT for AATD in the European Union and Turkey, as well as certain other European
and Asian countries, including certain ex-Soviet Union countries. We retain all rights, including distribution rights, for additional indications for inhaled
formulations of AAT, including indications for the treatment of cystic fibrosis and bronchiectasis. We also retain ownership of intellectual property rights for
Inhaled AAT for AATD. Chiesi will be responsible for, among other things, product sales and marketing, patient recruitment and screening and obtaining
reimbursement approvals for the product. Beginning in the second year after the receipt of certain required regulatory and reimbursement approvals, Chiesi is
required to purchase a minimum amount of the Inhaled AAT for AATD product per year based on the number of countries in which regulatory and
reimbursement approvals have been received, for a minimum amount of approximately $120 million for the first four years, subject to adjustments based on
actual product price after regulatory approval.
57
We are entitled to receive payments upon the achievement of certain regulatory and sales target milestones for an aggregate of up to $60.0 million,
including $20.0 million, consisting of an upfront payment we have already received and regulatory-based milestones, and $40.0 million of sales-based
milestones. In May 2016, we received a milestone payment from Chiesi upon the filing of the MAA with the EMA for Inhaled AAT.
The agreement expires on August 2, 2024. Either party may terminate the agreement (i) upon an uncured material breach by the other party, (ii) upon
certain bankruptcy events of the other party or (iii) with prior notice if any regulatory approval in one or more countries covered by the distribution agreement
is withdrawn or the application has been rejected, and the decision has not been reversed for a certain period thereafter, provided that the withdrawal or
rejection was not primarily caused by the breach of the terminating party of its obligations. We have the right to terminate the agreement with prior notice if
Chiesi does not meet its minimum purchase obligations, or if Chiesi infringes upon our intellectual property.
PARI
On November 16, 2006, we entered into a license agreement with PARI (the “Original PARI Agreement”) regarding the clinical development of an
inhaled formulation of AAT, including Inhaled AAT for AATD, using PARI’s “eFlow” nebulizer. Under the Original PARI Agreement, we received an
exclusive worldwide license, subject to certain preexisting rights, including the right to grant sub-licenses, to use the “eFlow” nebulizer, including the
associated technology and intellectual property, for the clinical development, registration and commercialization of inhaled formulations of AAT to treat
AATD and respiratory deterioration, and to commercialize the device for use with such inhaled formulations. The agreement also provided for PARI’s
cooperation with us during the pre-clinical phase and Phase I clinical trials of inhaled formulations of AAT, where each of us was responsible for developing
and adapting our own product and bore the costs involved.
Pursuant to the Original PARI Agreement, we agreed to pay PARI royalties from sales of inhaled formulations of AAT, after certain deductions, at
the rates specified in the agreement. We have agreed to pay PARI tiered royalties ranging from the low single digits up to the high single digits based on the
annual net sales of inhaled formulations of AAT for the applicable indications. The royalties will be paid for each country separately, until the later of (1) the
expiration of the last of certain specified patents covering the “eFlow” nebulizer, or (2) 15 years following the first commercial sale of an inhaled formulation
of AAT in that country (the “PARI royalties period”). During the PARI royalties period, PARI is obligated to pay us specified percentages of its annual sales
of the “eFlow” nebulizer for use with inhaled formulations of AAT above a certain threshold defined in the agreement and after certain deductions. On
February 21, 2008, we entered into an addendum to the Original PARI Agreement (together with the Original PARI Agreement, the “PARI Agreement”),
which extended the exclusive global license granted to us to use the “eFlow” nebulizer, including the associated technology and intellectual property, for the
clinical development, registration and commercialization of inhaled formulations of AAT for two additional indications of lung disease, namely cystic fibrosis
and bronchiectasis. Pursuant to the addendum, each party will be responsible for developing and adapting its own product for the additional indications and
will bear the costs involved. Additionally, we and PARI will supply, each at its own expense, inhaled formulations of AAT and the “eFlow” nebulizers,
respectively, and in the quantities required for all phases of clinical studies worldwide. In addition, PARI will provide to us, at its expense, technical and
regulatory support regarding the “eFlow” nebulizer. Sales of the inhaled formulation of AAT for the additional indications will be added to sales of the first
two indications covered by the original agreement as the basis for calculating the royalties to be paid by us to PARI.
The PARI Agreement expires when the PARI royalties period ends. Either party can terminate the PARI Agreement upon customary termination
provisions. Additionally, upon the occurrence of any one of the following events, PARI has the right to negotiate with us in good faith about whether to
continue our collaboration: (i) PARI’s costs of the required clinical trials exceed a certain amount, unless we or a third party incurs such expenses on behalf of
PARI; (ii) an inhaled formulation of AAT is not successfully registered with any regulatory authorities by 2016; (iii) there are no commercial sales of inhaled
formulations of AAT within a certain period after successful registration with any regulatory authority; or (iv) we cease development of inhaled formulations
of AAT for a certain period of time. If, within 180 days of PARI’s request to negotiate, we do not agree to continue the collaboration, PARI has the option
either to render the license they grant to us non-exclusive or to terminate the agreement. We have the right to terminate the agreement, upon prior written
notice, (i) in the event that the “eFlow” nebulizer is determined to infringe upon a third party’s intellectual property rights, (ii) an injunction barring the use of
the “eFlow” nebulizer has been in place for a certain period of time, (iii) a clinical trial for inhaled formulations of AAT fails as a result of, after a cure period,
the “eFlow” nebulizer not conforming to specifications or PARI’s inability to supply the “eFlow” nebulizer; or (iv) failure by PARI to register the “eFlow”
nebulizer within a certain period of time after receiving Phase III results for Inhaled AAT for AATD.
58
Following any termination, all licensed rights will revert to PARI, unless we terminate the agreement as a result of PARI’s bankruptcy, payment
failure or material breach, in which case we retain the license rights to the “eFlow” nebulizer as long as we continue making royalty payments.
In addition, on February 21, 2008, we signed a commercialization and supply agreement with PARI that provides for the supply of the “eFlow”
nebulizer and its spare parts to patients who are treated with the inhaled formulation of AAT, either through its own distributors, our distributors or
independent distributors in countries where PARI does not have a distributor. The commercialization and supply agreement expires upon the earlier of (1) the
end of four years from (x) the end of the last PARI royalties period, or (y) the termination of the PARI Agreement by one party due to the other party
declaring bankruptcy, failing to make a payment after a 30-day cure period or breach of a material provision after a 30-day cure period, or (2) the termination
of the PARI Agreement pursuant to its terms, other than for reasons as previously described, in which case the commercialization and supply agreement
terminates simultaneously with the PARI Agreement provided that PARI ensures availability of the “eFlow” nebulizer and its associated spare parts and
service to anyone being treated with the inhaled formulation of AAT at the time of such termination, for the warranty period of the device or for a longer
period, if required by the applicable law or the relevant regulatory authority.
Kedrion (KamRAB)
On July 18, 2011, we signed an agreement with Kedrion, an international pharmaceutical company engaged in the manufacture of life saving drugs
based on human plasma which complement our products, and which are marketed in Europe, the United States and approximately 40 other countries
worldwide. The agreement provides for exclusive cooperation on completing the clinical development, and marketing and distribution of our anti-rabies
pharmaceutical, KamRAB, in the United States, if the product is approved. Pursuant to the agreement, Kedrion will bear all the costs of the Phase III clinical
trials in the United States of our product for rabies. Costs related to any Phase IV clinical trials, if required, and the FDA Prescription Drug User fee that is
required for all FDA new drug approvals, will be divided equally between us and Kedrion. An addendum to the agreement was executed dated as of October
15, 2016, with respect to the performance of a safety clinical trial for the treatment of pediatric patients, which we intend to initiate in the United States.
According to such addendum, Kedrion and we agreed to equally share the cost of such trial.
In 2014, the Phase III trial was completed and successfully met the trial’s primary endpoint of non-inferiority when measured against an IgG
reference product, and in September 2016, the BLA was submitted to the FDA. We expect to receive marketing authorization and to launch the KamRAB
product for treatment of Prophylaxis of rabies disease with the FDA in the United States in 2017. This product is expected to be marketed in the U.S. under
the trademark: "KedRAB". See “Item 4. Information on the Company — immunoglobulins — KamRAB”.
The agreement provides exclusive rights to Kedrion to market and sell KamRAB in the United States, subject to regulatory approval. We retain
intellectual property rights to KamRAB. Beginning shortly after receipt of FDA approval for KamRAB, if obtained, Kedrion will be obligated to purchase a
minimum amount of KamRAB per year during the term of the agreement.
The term of the agreement is for six years following the receipt of FDA approval, if obtained, subject to Kedrion’s option to extend the agreement by
two years. In addition to customary termination provisions, either party can terminate the agreement for any reason prior to the commencement of clinical
trials for FDA approval. Kedrion also has the right to terminate the agreement, upon prior written notice, (i) for any reason after receipt of FDA approval, if
obtained, (ii) in the event that the FDA Biologics License Application is suspended or revoked and cannot be reinstated within a certain period of time, or (iii)
a major regulatory change occurs that materially and adversely increases the clinical trial costs. We have the right to terminate the agreement in the event that
(i) a major regulatory change occurs that materially and adversely increases the manufacturing costs of KamRAB, (ii) a major regulatory change occurs that
poses considerable difficulties on submission of an application for FDA approval or (iii) clinical trials are not initiated within a certain time after either receipt
by Kedrion of enough product or FDA approval to begin clinical trials.
59
Manufacturing and Supply
We have a production plant located in Beit Kama, Israel, which we believe is fully cGMP compliant. We operate the main production facility on
schedules so that at any time the facility is assigned to produce only one product. The division of facility time among the various products is determined based
on orders received, sales forecasts and development needs. During 2014, we completed a new logistic facility in our plant in Beit Kama that will support our
activities during the coming years. During each year we have routine maintenance shut downs of our plant, which may last up to a few weeks.
Our production plant passed inspection by the FDA in 2010, and our plant and laboratories also successfully passed a quality assurance audit by the
Russian Ministry of Health and similar authorities in Brazil, Kenya and Mexico. In July 2011, a cGMP audit was conducted by the IMOH, following which
the plant’s main production facility was reapproved, as well as the new facility to produce our snake bite antiserum product, which was planned and
constructed between the years 2009 and 2011 with IMOH funding and began operating in August 2011. In each of July 2013 and February 2016, the IMOH
completed additional successful cGMP audits of our facility and concluded that we comply with cGMP requirements of the IMOH.
Any changes in our production processes for our products must be approved by the FDA and/or similar authorities in other jurisdictions. In 2014, as
part of our on-going effort to increase efficiency and profitability, we received approval from the FDA to make changes to the production processes for
Glassia, which scale-up the output of our manufacturing facility, and began to produce Glassia using the improved processes.
Raw Materials
The main raw materials in our Proprietary Products segment are plasma and fraction IV. We also use other raw materials, including both natural and
synthetic materials. We purchase raw materials from suppliers who are regulated by the FDA, EMA and other regulatory authorities. Our suppliers are
approved in their countries of origin and by the IMOH. The raw materials must comply with strict regulatory requirements. We require our raw materials
suppliers to comply with the cGMP rules, and we audit our suppliers from time to time. We are dependent on the regular supply and availability of raw
materials in our Proprietary Products segment.
Other than Shire, in the years ended December 31, 2016, 2015 and 2014, there were two suppliers who accounted for 10% or more of the total
purchases of raw materials in our Proprietary Products Segment. We maintain relationships with several suppliers in order to ensure availability and reduce
reliance on specific suppliers. We are dependent, however, on a number of suppliers who supply specialty ancillary products prepared for the production
process, such as specific gels and filters. See “Item 3. Key Information — D. Risk Factors — We would become supply-constrained and our financial
performance would suffer if we were unable to obtain adequate quantities of source plasma or plasma derivatives or specialty ancillary products approved by
the FDA, the EMA or the regulatory authorities in Israel, or if our suppliers were to fail to modify their operations to meet regulatory requirements.”
In the years ended December 31, 2016, 2015 and 2014, we incurred $18.4 million, $19.0 million and $9.9 million of expenses for the purchase of
raw materials, respectively.
60
Fraction IV for Glassia
On August 23, 2010, in conjunction with the cooperation arrangement with Shire, we signed an agreement with Shire for the supply of fraction IV
for use in the production of Glassia to be sold in the United States. Under this agreement, Shire also supplies us with fraction IV to continue the development
and trials of Glassia and for the production, sale and distribution of Glassia in jurisdictions other than the United States or for the production, sale and
distribution of other products in any territory. Shire receives no payment for the supply of fraction IV to be used by us for the manufacture of Glassia to be
sold to Shire. If we require fraction IV for other purposes, we are entitled to purchase it from Shire at a predetermined price. While we are dependent on Shire
for the supply of fraction IV, Shire is currently dependent on us to produce Glassia for sale in the United States, as it does not have its own production
capacity for Glassia. The supply agreement terminates on August 23, 2040, subject to an option for earlier termination in the event of a material breach.
In December 2012, we signed an additional agreement with Shire to supply additional fraction IV manufactured in its Vienna plant to be used as the
raw material in the production of our AAT product. Shire is obligated to make available to us yearly minimum quantity of fraction IV. The agreement remains
in effect until December 31, 2021, subject to earlier termination in the case of a breach, and may be renewed for two consecutive two year periods upon
mutual agreement of both parties. Either party may terminate the agreement for any reason with twelve months prior written notice to the other party,
provided that as a condition to such termination by Shire, Shire is obligated to provide us, upon our request, with fraction IV in the amount equivalent to the
previous year’s total amount of fraction IV sold to us in addition to the fraction IV to be sold during the last year of the agreement.
Hyper-immune Plasma
We have a number of suppliers in the United States for hyper-immune plasma with which we have long-term supply agreements. Hyper-immune
plasma is used for the production of KamRAB and KamRho(D). In addition to long-term supply agreements, we work to secure availability of hyper-immune
plasma on an annual basis by providing forecasts to our suppliers based on our customers’ actual and forecasted orders. We continue to seek to enter into
long-term supply agreements for hyper-immune plasma with additional plasma-collection companies.
Research and Development
Our research and development activity in the Proprietary Products segment is focused on developing new orphan plasma-derived therapeutic
products, registering new products, including conducting clinical trials, improving existing products and processes and engaging in development work at the
request of regulatory authorities and strategic partners. We are continuing to pursue further growth by diversifying our product pipeline through the discovery
and development of additional plasma-derived protein therapeutic products for high-value indications. We incurred approximately $16.2 million, $16.5
million and $16.0 million research and development expenses in the years ended December 31, 2016, 2015 and 2014, respectively.
Marketing and Distribution
In the Proprietary Products segment, we receive orders for plasma-derived protein therapeutics and, other than for Glassia, requests for participation
in tenders for the supply of plasma-derived protein therapeutics from potential distributors and from existing distributors. We sell Glassia to Shire and to other
distributors worldwide.
For our other products, we market, in most cases, by means of agreements with local distributors in each country through a tender process and the
private market. The tender process is conducted on a regular basis by the distributors, sometimes on an annual basis. For existing customers, our existing
relationship does not guarantee additional orders from the same customers in these tenders. The decisive parameter is generally the price proposed in the
tender. The distributor purchases plasma-derived protein therapeutics from us and sells them to its customers (either directly or by means of sub-distributors).
In most cases, we do not sign agreements with the end users, and as such, we do not fix the price to the end user or its terms of payment and are not exposed
to credit risks of the end users. In the vast majority of cases, our agreements with the local distributors award the various distributors exclusivity in the
distribution of our plasma-derived protein therapeutics in the relevant country. The distribution agreements are, in most cases, made for a specific initial
period and are subsequently renewed for one-year periods, where the parties have the right to cancel or renew the agreements with prior notice of a number of
months. In these markets, we do not actively participate in the marketing to the end users, except for supplying marketing assistance where the cost is
negligible or participation in marketing costs as a part of incentives for distributors. In Israel, we market our plasma-derived protein therapeutics
independently to the end user, healthcare providers and medical centers or through a partner company that specializes in the supply of equipment and
pharmaceuticals to healthcare providers.
61
Most of our sales outside of Israel are made against open credit and some in documentary credit or cash in advance. Most of our sales inside Israel
are made against open credit or cash. The credit given to some of our customers abroad (except for sales in documentary credit or cash) is mostly secured by
means of a credit insurance policy.
In the Distribution segment, we market our products in Israel to health maintenance organizations and hospitals on our own or by our third party
logistic associates. While we occasionally receive direct orders for our Distribution segment products, we primarily sell our Distribution segment products
through offers to participate in public tenders, which occur on an annual basis. The public tender process involves health maintenance organizations and
hospitals soliciting bids from several potential suppliers, including us, and selecting the winning bid based on several attributes, whereas the primarily
attributes are, price and availability. The annual public tender process is also used by our existing customers to determine their suppliers. As a result, our
existing relationships with customers in our Distribution segment do not guarantee additional orders from such customers year to year.
We have distribution agreements with each of our two largest suppliers in our Distribution segment to be their exclusive distributor in Israel for a
number of their manufactured products; however, we purchase our Distribution segment products from our suppliers on a purchase order basis. We work
closely with our suppliers to develop annual forecasts, but these forecasts do not obligate our suppliers to provide us with their products. Additionally, one of
our suppliers has the right to convert the agreement into a non-exclusive agreement or terminate the agreement if we do not meet our annual forecasts.
Customers
For the year ended December 31, 2016, sales to Shire and Kupat Holim Clalit, an Israeli healthcare provider, accounted for 52% and 13%,
respectively, of our total revenues. For the year ended December 31, 2015, sales to Shire and Kupat Holim Clalit accounted for 37% and 15%, respectively,
of our total revenues. For the year ended December 31, 2014, sales to Shire and Kupat Holim Clalit accounted for 36% and 17%, respectively, of our total
revenues. No other sole customer accounted for greater than 10% of our total revenues in the years ended December 31, 2016, 2015 and 2014.
Shire is our major customer in the Proprietary Products segment. Our other customers in the Proprietary Products segment are our distributors in
Brazil, Argentina, Russia, Thailand and India, as well as healthcare providers and medical centers in Israel. In other geographies, most of the sales of our
products are conducted through local distributors. These arrangements are further described above under “— Marketing and Distribution.”
Our primary customers in the Distribution segment are health maintenance organizations and hospitals in Israel, including Kupat Holim Clalit and
Kupat Holim Maccabi.
Competition
The worldwide market for pharmaceuticals in general, and biopharmaceutical and plasma products in particular, has in recent years undergone a
process of mergers and acquisitions among companies active in such markets. This trend has led to a reduction in the number of competitors in the market,
but the strengthening of the remaining competitors, mainly for specific immunoglobulin products.
62
Proprietary Products Segment
We believe that there are two to four large competitors for each of our products in the Proprietary Products segment. These large competitors include
CSL Behring Ltd., Grifols S.A., which acquired a previous competitor, Talecris Biotherapeutics, Inc. in 2011, Kedrion, and Cangene Corporation (acquired by
Emergent BioSolutions). We have not seen significant changes in the activities of our competitors in recent years. Additionally, our strategic alliance with
Shire in the United States has strengthened our AAT competitive positioning in the market.
Our large competitors have advantages in the market because of their size, financial resources, markets and the duration of their activities and
experience in the relevant market, especially in the United States and countries of the European Union. Some of them have an additional advantage regarding
the availability of raw materials, as they fractionate plasma internally and own plasma collection centers and/or companies that collect or produce raw
materials such as plasma.
The following describes details known to us about our most significant competitors for each of our main Proprietary Products segment products.
Glassia. We believe that Glassia has two main competitors: Grifols and CSL. We estimate that Grifols’ AAT by infusion product for the treatment of
AATD, Prolastin, accounts for 50% market share in the U.S. and more than 70% of sales worldwide, and until 2015 it was the only AAT product that was
approved for sale in both – key European countries and the United States. CSL’s AAT by IV product, Zemaira, is mainly sold in the United States, and during
2015 received centralized marketing authorization approval in the European Union. CSL launched the product in few selected EU markets during 2016 under
the brand name Respreeza. Apart from its sales of the past Talecris product, Grifols is also a local producer of an additional AAT product, Trypsone, which is
marketed in Spain and in some Latin American countries, including Brazil. While Shire is our strategic partner for sales of Glassia, it also serves existing
patients in the United States with its own proprietary product, Aralast. As far as we know Shire proactively markets only Glassia in the United States, while
maintaining existing patients on Aralast. In addition, we are aware of a smaller local producer of AAT in the French market, Laboratoire Français du
Fractionnement et des Biotechnologies, S.A. We do not believe any new suppliers are expected to enter the United States market for AAT by infusion in the
near future. As part of the approval of our competitors’ intravenous AAT products for the treatment of AATD, they (like us) were required by the FDA to
conduct Phase IV clinical trials aimed to collect efficacy data. CSL has released results from its Phase IV trial. As far as we know those results were not
accepted by the FDA as prove of required efficacy. To the best of our knowledge, to date, our other competitors have not completed their trials or their results
have not been published.
KamRAB. We believe that there are two main competitors for this anti-rabies product worldwide: Grifols, whose product we estimate comprises
approximately 90% of the anti-rabies market in the United States, and CSL, which sells its anti-rabies product in Europe and elsewhere. Sanofi Pasteur, the
vaccines division of Sanofi S.A., has a product registered for the United States market, but the product is primarily sold in Europe and not currently sold in
significant quantities in the United States. There are a number of local producers in other countries that make similar anti-rabies products. Most of these
products are based on horse serum, which we believe results in inferior products, as compared to products made from human plasma.
KamRho(D). While Kedrion is one of our strategic partners for KamRAB, it is also one of our competitors for this product following its acquisition
of the Anti-Rh product line of Ortho-Clinical Diagnostics, Inc. We estimate that Kedrion’s product accounts for approximately 50% of sales in the United
States. Kedrion also markets a competing product in Italy and has begun to expand into other markets. We believe there are three additional suppliers of
competitive products in this market: Cangene, Grifols and CSL. There are also local producers in other countries that make similar products mostly intended
for local markets.
63
Distribution Segment
We believe that there are a number of companies active in the Israeli market distributing the products of several manufacturers whose comparable
products compete with our products in the Distribution segment. These manufacturers include Grifols, Shire, CSL, Octapharma AG, Omrix
Biopharmaceuticals Ltd. (a Johnson & Johnson company) and Cangene as well as some of largest pharmaceutical manufacturers in the world, such as,
Novartis AG, AstraZeneca AB, Sanofi UK and GlaxoSmithKline. These competing manufacturers have advantages of size, financial resources, market share,
broad product selection and extensive experience in the market, although we believe that we have greater expertise in the Israeli market. Each of these
competitors sells its products through local representatives in Israel.
Government Regulation
Government authorities in the United States, at the federal, state and local level, and in other countries extensively regulate, among other things, the
research, development, testing, manufacture, quality control, approval, labeling, packaging, storage, record-keeping, promotion, advertising, distribution,
post-approval monitoring and reporting, marketing and export and import of products such as those we sell and are developing. Except for compassionate use
or non-registered named-patient cases, any pharmaceutical candidate that we develop must be approved by the FDA before it may be legally marketed in the
United States and by the appropriate foreign regulatory agency before it may be legally marketed in foreign countries.
U.S. Drug Development Process
In the United States, pharmaceutical products are regulated by the FDA under the Federal Food, Drug, and Cosmetic Act and other laws, including,
in the case of biologics, the Public Health Service Act. All of our products for human use and product candidates in the United States, including Glassia, are
regulated by the FDA as biologics. Biologics require the submission of a Biologics License Application (“BLA”) and approval or license by the FDA prior to
being marketed in the United States. Manufacturers of biologics may also be subject to state regulation. Failure to comply with regulatory requirements, both
before and after product approval, may subject us and/or our partners, contract manufacturers and suppliers to administrative or judicial sanctions, including
FDA refusal to approve applications, warning letters, product recalls, product seizures, total or partial suspension of production or distribution, fines and/or
criminal prosecution.
The steps required before a biologic may be approved for marketing for an indication in the United States generally include:
1.
2.
3.
4.
5.
6.
preclinical laboratory tests and animal tests;
submission to the FDA of an IND for human clinical testing, which must become effective before human clinical trials may commence;
adequate and well-controlled human clinical trials to establish the safety and efficacy of the product;
submission to the FDA of a BLA or supplemental BLA;
FDA pre-approval inspection of product manufacturers; and
FDA review and approval of the BLA or supplemental BLA.
64
Preclinical studies include laboratory evaluation, as well as animal studies to assess the potential safety and efficacy of the product candidate.
Preclinical safety tests must be conducted in compliance with FDA regulations regarding good laboratory practices. The results of the preclinical tests,
together with manufacturing information and analytical data, are submitted to the FDA as part of an IND which must become effective before human clinical
trials may be commenced. The IND will automatically become effective 30 days after receipt by the FDA, unless the FDA before that time raises concerns
about the drug candidate or the conduct of the trials as outlined in the IND. The IND sponsor and the FDA must resolve any outstanding concerns before
clinical trials can proceed. There can be no assurance that submission of an IND will result in FDA authorization to commence clinical trials or that, once
commenced, other concerns will not arise that could lead to a delay or a hold on the clinical trials.
Clinical trials involve the administration of the investigational product to healthy volunteers or to patients, under the supervision of qualified
principal investigators. Each clinical study at each clinical site must be reviewed and approved by an independent institutional review board, prior to the
recruitment of subjects.
Clinical trials are typically conducted in three sequential phases, but the phases may overlap and different trials may be initiated with the same drug
candidate within the same phase of development in similar or differing patient populations.
·
·
·
Phase I studies may be conducted in a limited number of patients, but are usually conducted in healthy volunteer subjects. The drug is
usually tested for safety and, as appropriate, for absorption, metabolism, distribution, excretion, pharmacodynamics and pharmacokinetics.
Phase II usually involves studies in a larger, but still limited, patient population to evaluate preliminarily the efficacy of the drug candidate
for specific, targeted indications; to determine dosage tolerance and optimal dosage; and to identify possible short-term adverse effects and
safety risks.
Phase III trials are undertaken to further evaluate clinical efficacy of a specific endpoint and to test further for safety within an expanded
patient population at geographically dispersed clinical study sites.
Phase I, Phase II or Phase III testing may not be completed successfully within any specific time period, if at all, with respect to any of our product
candidates. Results from one trial are not necessarily predictive of results from later trials, the FDA may require additional testing or a larger pool of subjects
beyond what we proposed as the clinical development process proceeds, thereby requiring more time and resources to complete the trials. Furthermore, the
FDA may suspend clinical trials at any time on various grounds, including a finding that the subjects or patients are being exposed to an unacceptable health
risk, or may not allow the importation of the clinical trial materials if there is non-compliance with applicable laws.
The results of the preclinical studies and clinical trials, together with other detailed information, including information on the manufacture and
composition of the product, are submitted to the FDA as part of a BLA requesting approval to market the product candidate for a proposed indication. Under
the Prescription Drug User Fee Act, as amended, the fees payable to the FDA for reviewing a BLA, as well as annual fees for commercial manufacturing
establishments and for approved products, can be substantial. The BLA review fee alone can exceed $2,000,000, subject to certain limited deferrals, waivers
and reductions that may be available. Each BLA submitted to the FDA for approval is typically reviewed for administrative completeness and reviewability
within 45 to 60 days following submission of the application. If found complete, the FDA will “file” the BLA, thus triggering a full review of the application.
The FDA may refuse to file any BLA that it deems incomplete or not properly reviewable at the time of submission. The FDA’s established goals are to
review and act on 90% of priority BLA applications and priority original efficacy supplements within six months of the 60-day filing date and receipt date,
respectively. The FDA’s goals are to review and act on 90% of standard BLA applications and standard original efficacy supplements within 10 months of the
60-day filing date and receipt date, respectively. The FDA, however, may not be able to approve a drug within these established goals, and its review goals
are subject to change from time to time. Further, the outcome of the review, even if generally favorable, may not be an actual approval but an “action letter”
that describes additional work that must be done before the application can be approved. Before approving a BLA, the FDA may inspect the facilities at
which the product is manufactured or facilities that are significantly involved in the product development and distribution process, and will not approve the
product unless cGMP compliance is satisfactory. The FDA may deny approval of a BLA if applicable statutory or regulatory criteria are not satisfied, or may
require additional testing or information, which can delay the approval process. FDA approval of any application may include many delays or never be
granted. If a product is approved, the approval will impose limitations on the indicated uses for which the product may be marketed, will require that warning
statements be included in the product labeling, may impose additional warnings to be specifically highlighted in the labeling (e.g., a Black Box Warning),
which can significantly affect promotion and sales of the product, may require that additional studies be conducted following approval as a condition of the
approval, may impose restrictions and conditions on product distribution, prescribing or dispensing in the form of a risk management plan, or otherwise limit
the scope of any approval. To market a product for other uses, or to make certain manufacturing or other changes requires prior FDA review and approval of a
BLA Supplement or new BLA. Further post-marketing testing and surveillance to monitor the safety or efficacy of a product is required. Also, product
approvals may be withdrawn if compliance with regulatory standards is not maintained or if safety or manufacturing problems occur following initial
marketing. In addition, new government requirements may be established that could delay or prevent regulatory approval of our product candidates under
development.
65
As part of the Patient Protection and Affordable Care Act (the “healthcare reform law”), Public Law No. 111-148, under the subtitle of Biologics
Price Competition and Innovation Act of 2009 (“BPCI”), a statutory pathway has been created for licensure, or approval, of biological products that are
biosimilar to, and possibly interchangeable with, earlier biological products approved by the FDA for sale in the United States. Also under the BPCI,
innovator manufacturers of original reference biological products are granted 12 years of exclusive use before biosimilars can be approved for marketing in
the United States. There have been proposals to shorten this period from 12 years to seven years. The objectives of the BPCI are conceptually similar to those
of the Drug Price Competition and Patent Term Restoration Act of 1984, commonly referred to as the “Hatch-Waxman Act,” which established abbreviated
pathways for the approval of drug products. The implementation of an abbreviated approval pathway for biological products is under the direction of the FDA
and is currently being developed. In February 2012, the FDA published draft guidance documents on biosimilar product development. Since then, biosimilar
product registration in the U.S. has been materialized by few other guidelines and acts, such as the draft guidance for formal meetings related to biosimilar
product development (November 2015-"Final Guidance Formal Meetings Between the FDA and Biosimilar Biological Product Sponsors or Applicants
Guidance for Industry") and the Biosimilar User Fee Act (BsUFA). A biosimilar is defined in the statute as a biological product that is highly similar to an
already approved biological product, notwithstanding minor differences in clinically inactive components, and for which there are no clinically meaningful
differences between the biosimilar and the approved biological product in terms of the safety, purity, and potency. Under this proposed approval pathway,
biological products can be approved based on demonstrating they are biosimilar to, or interchangeable with, a biological product that is already approved by
the FDA, which is called a reference product. If we obtain approval of a BLA, the approval of a biologic product biosimilar to one of our products could have
a significant impact on our business. The biosimilar product may be significantly less costly to bring to market and may be priced significantly lower than our
products.
Both before and after the FDA approves a product, the manufacturer and the holder or holders of the BLA for the product are subject to
comprehensive regulatory oversight. For example, quality control and manufacturing procedures must conform, on an ongoing basis, to cGMP requirements,
and the FDA periodically inspects manufacturing facilities to assess compliance with cGMP. Accordingly, manufacturers must continue to spend time, money
and effort to maintain cGMP compliance. In addition, a BLA holder must comply with post-marketing requirements, such as reporting of certain adverse
events. Such reports can present liability exposure, as well as increase regulatory scrutiny that could lead to additional inspections, labeling restrictions, or
other corrective action to minimize further patient risk.
66
Special Development and Review Programs
Orphan Drug Designation
The FDA may grant orphan drug designation to drugs intended to treat a rare disease or condition that affects fewer than 200,000 individuals in the
United States, or if it affects more than 200,000 individuals in the United States and there is no reasonable expectation that the cost of developing and making
the drug for this type of disease or condition will be recovered from sales in the United States. In the United States, orphan drug designation must be
requested before submitting a BLA or supplemental BLA.
In the European Union, the Committee for Orphan Medicinal Products grants orphan drug designation to promote the development of products that
are intended for the diagnosis, prevention or treatment of a life-threatening or chronically debilitating condition affecting not more than five in 10,000 persons
in the European Union community. Additionally, this designation is granted for products intended for the diagnosis, prevention or treatment of a life-
threatening, seriously debilitating or serious and chronic condition and when, without incentives, it is unlikely that sales of the drug in the European Union
would be sufficient to justify the necessary investment in developing the drug or biological product.
We received an orphan drug designation in the United States and Europe for multiple indications. Inhaled AAT for AATD has received an orphan
drug designation in the United States and Europe. The inhaled formulation of AAT for the treatment of cystic fibrosis has received an orphan drug designation
in the United States and Europe. The inhaled formulation of AAT for the treatment of bronchiectasis has received an orphan drug designation in the United
States. The additional indication for Glassia for the treatment of newly diagnosed cases of Type-1 Diabetes has received an orphan drug designation in the
United States. In addition, the indication for AAT for the treatment of Graft versus Host Disease has received an orphan drug designation in the United States
and Europe.
In the United States, orphan drug designation entitles a party to financial incentives such as opportunities for grant funding towards clinical trial
costs, tax advantages and user-fee waivers. In addition, if a product and its active ingredients receive the first FDA approval for the indication for which it has
orphan designation, the product is entitled to orphan drug exclusivity, which means the FDA may not approve any other application to market the same drug
for the same indication for a period of seven years, except in limited circumstances, such as a showing of clinical superiority over the product with orphan
exclusivity. Orphan drug designation does not convey any advantage in, or shorten the duration of, the regulatory review and approval process. In addition,
the FDA may rescind orphan drug designation and, even with designation, may decide not to grant orphan drug exclusivity even if a marketing application is
approved. Furthermore, the FDA may approve a competitor product intended for a non-orphan indication, and physicians may prescribe the drug product for
off-label uses, which can undermine exclusivity and hurt orphan drug sales.
In the European Union, orphan drug designation also entitles a party to financial incentives such as reduction of fees or fee waivers and 10 years of
market exclusivity is granted following drug or biological product approval. This period may be reduced to six years if the orphan drug designation criteria
are no longer met, including where it is shown that the product is sufficiently profitable not to justify maintenance of market exclusivity or a safer, more
effective or otherwise clinically superior product is available.
In the European Union, an application for marketing authorization can be submitted after the application for orphan drug designation has been
submitted, while the designation is still pending, but should be submitted prior to the designation application in order to obtain a fee reduction. Orphan drug
designation does not convey any advantage in, or shorten the duration of, the regulatory review and approval process.
67
Post-Approval Requirements
Any drug products for which we receive FDA approvals are subject to continuing regulation by the FDA. Certain requirements include, among other
things, record-keeping requirements, reporting of adverse experiences with the product, providing the FDA with updated safety and efficacy information on
an annual basis or more frequently for specific events, product sampling and distribution requirements, complying with certain electronic records and
signature requirements and complying with FDA promotion and advertising requirements. These promotion and advertising requirements include, among
others, standards for direct-to-consumer advertising, prohibitions against promoting drugs for uses or in patient populations that are not described in the
drug’s approved labeling (known as “off-label use”), and other promotional activities. Failure to comply with FDA requirements can have negative
consequences, including the immediate discontinuation of noncomplying materials, adverse publicity, enforcement letters from the FDA, mandated corrective
advertising or communications with doctors, and civil or criminal penalties. Such enforcement may also lead to scrutiny and enforcement by other
government and regulatory bodies. Although physicians may prescribe legally available drugs for off-label uses, manufacturers may not encourage, market or
promote such off-label uses.
The manufacturing of our product candidates is required to comply with applicable FDA manufacturing requirements contained in the FDA’s cGMP
regulations. Our product candidates are either manufactured at our production plant in Beit Kama, Israel, or, for products where we have entered into a
strategic partnership with a third party to cooperate on the development of a product candidate, at a third-party manufacturing facility. These regulations
require, among other things, quality control and quality assurance, as well as the corresponding maintenance of comprehensive records and documentation.
Drug manufacturers and other entities involved in the manufacture and distribution of approved drugs are also required to register their establishments and list
any products they make with the FDA and to comply with related requirements in certain states. These entities are further subject to periodic unannounced
inspections by the FDA and certain state agencies for compliance with cGMP and other laws. Accordingly, manufacturers must continue to expend time,
money and effort in the area of production and quality control to maintain cGMP compliance. Discovery of problems with a product after approval may result
in serious and extensive restrictions on a product, manufacturer or holder of an approved BLA, as well as lead to potential market disruptions. These
restrictions may include suspension of a product until the FDA is assured that quality standards can be met, continuing oversight of manufacturing by the
FDA under a “consent decree,” which frequently includes the imposition of costs and continuing inspections over a period of many years, as well as possible
withdrawal of the product from the market. In addition, changes to the manufacturing process generally require prior FDA approval before being
implemented. Other types of changes to the approved product, such as adding new indications and additional labeling claims, are also subject to further FDA
review and approval, including possible user fees.
The FDA also may require a Black Box Warning (e.g., a specific warning in the label to address a specific risk), which has marketing restrictions,
and post-marketing testing, or Phase IV testing, as well as risk minimization action plans and surveillance to monitor the effects of an approved product or
place conditions on an approval that could otherwise restrict the distribution or use of the product.
Other U.S. Healthcare Laws and Compliance Requirements
In the United States, our activities are potentially subject to regulation and enforcement by various federal, state and local authorities in addition to
the FDA, including the Centers for Medicare and Medicaid Services (formerly the Health Care Financing Administration), other divisions of the United States
Department of Health and Human Services (e.g., the Office of Inspector General), the United States Department of Justice and individual United States
Attorney offices within the Department of Justice, state attorney generals and state and local governments. To the extent applicable, we must comply with the
fraud and abuse provisions of the Social Security Act, the federal False Claims Act, the privacy and security provisions of the Health Insurance Portability
and Accountability Act, and similar state laws, each as amended. Pricing and rebate programs must comply with the Medicaid rebate requirements of the
Omnibus Budget Reconciliation Act of 1990 and the Veterans Health Care Act of 1992, each as amended, as well as the “Anti-Kickback Law” provisions of
the Social Security Act. If products are made available to authorized users of the Federal Supply Schedule of the General Services Administration, additional
laws and requirements apply. Under the Veterans Health Care Act (“VHCA”), drug companies are required to offer certain pharmaceutical products at a
reduced price to a number of federal agencies, including the United States Department of Veterans Affairs and United States Department of Defense, the
Public Health Service and certain private Public Health Service-designated entities in order to participate in other federal funding programs including
Medicare and Medicaid. Legislative changes have purported to require that discounted prices be offered for certain United States Department of Defense
purchases for its TRICARE program via a rebate system. Participation under the VHCA requires submission of pricing data and calculation of discounts and
rebates pursuant to complex statutory formulas, as well as the entry into government procurement contracts governed by the Federal Acquisition Regulations.
68
In order to distribute products commercially, we must comply with state laws and regulations that require the registration of manufacturers and
wholesale distributors of pharmaceutical products in a state, including, in certain states, manufacturers and distributors who ship products into the state even if
such manufacturers or distributors have no place of business within the state. Some states also impose requirements on manufacturers and distributors to
establish the pedigree of product in the chain of distribution, including some states that require manufacturers and others to adopt new technology capable of
tracking and tracing product as it moves through the distribution chain. Several states have enacted legislation requiring pharmaceutical companies to
establish marketing compliance programs, 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 to prohibit pharmacies and other healthcare entities from providing certain physician
prescribing data to pharmaceutical companies for use in sales and marketing, and to prohibit certain other sales and marketing practices. Additionally, the
federal “Sunshine” law and implementing regulations promulgated pursuant to Section 6002 of the healthcare reform law requires the tracking and reporting
of certain transfers of value made to U.S. physicians and/or certain teaching hospitals as well as ownership by a physician or a physician’s family member in a
pharmaceutical manufacturer. Finally, all of our activities are potentially subject to federal and state consumer protection and unfair competition laws. These
laws may affect our sales, marketing, and other promotional activities by imposing administrative and compliance burdens on us. In addition, given the lack
of clarity with respect to these laws and their implementation, our reporting actions could be subject to the penalty provisions of the pertinent state, and soon
federal, authorities.
Europe/Rest of World Government Regulation
In addition to regulations in the United States, we are subject to a variety of regulations in other jurisdictions governing, among other things, clinical
trials and any commercial sales and distribution of our products.
Whether or not we obtain FDA approval for a product, we must obtain approval of a product by the comparable regulatory authorities of foreign
countries before we can commence clinical trials or marketing of the product in those countries. For example, in the European Union, a clinical trial
application (“CTA”) must be submitted to each member state’s national health authority and an independent ethics committee. The CTA must be approved by
both the national health authority and the independent ethics committee prior to the commencement of a clinical trial in the member state. The approval
process varies from country to country and the time may be longer or shorter than that required for FDA approval. In addition, the requirements governing the
conduct of clinical trials, product licensing, pricing and reimbursement vary greatly from country to country. In all cases, clinical trials are conducted in
accordance with GCP and the applicable regulatory requirements and the ethical principles that have their origin in the Declaration of Helsinki.
To obtain marketing approval of a drug under European Union regulatory systems, we may submit marketing authorization applications either under
a centralized, decentralized or national procedure. The centralized procedure provides for the grant of a single marketing authorization that is valid for all
European Union member states. The centralized procedure is compulsory for medicines produced by certain biotechnological processes, products designated
as orphan medicinal products, and products with a new active substance indicated for the treatment of certain diseases, and optional for those products that are
highly innovative or for which a centralized process is in the interest of patients. For our products and product candidates that have received or will receive
orphan designation in the European Union, they will qualify for this centralized procedure, under which each product’s marketing authorization application
will be submitted to the EMA. Under the centralized procedure in the European Union, the maximum time frame for the evaluation of a marketing
authorization application is 210 days (excluding clock stops, when additional written or oral information is to be provided by the applicant in response to
questions asked by the Scientific Advice Working Party of the Committee of Medicinal Products for Human Use (“CHMP”)). Accelerated evaluation might
be granted by the CHMP in exceptional cases, when a medicinal product is expected to be of a major public health interest, defined by three cumulative
criteria: the seriousness of the disease, such as heavy disabling or life-threatening diseases, to be treated; the absence or insufficiency of an appropriate
alternative therapeutic approach; and anticipation of high therapeutic benefit. In this circumstance, the EMA ensures that the opinion of the CHMP is given
within 150 days.
69
The decentralized procedure provides possibility for approval by one or more other, or concerned, member states of an assessment of an application
performed by one member state, known as the reference member state. Under this procedure, an applicant submits an application, or dossier, and related
materials, including a draft summary of product characteristics, and draft labeling and package leaflet, to the reference member state and concerned member
states. The reference member state prepares a draft assessment and drafts of the related materials within 120 days after receipt of a valid application. Within
90 days of receiving the reference member state’s assessment report, each concerned member state must decide whether to approve the assessment report and
related materials. If a member state cannot approve the assessment report and related materials on the grounds of potential serious risk to public health, the
disputed points may eventually be referred to the European Commission, whose decision is binding on all member states.
For other countries outside of the European Union, such as countries in Eastern Europe, Latin America or Asia, the requirements governing the
conduct of clinical trials, product licensing, pricing and reimbursement vary from country to country. In all cases, again, the clinical trials are conducted in
accordance with GCPs and the applicable regulatory requirements and the ethical principles that have their origin in the Declaration of Helsinki.
If we fail to comply with applicable foreign regulatory requirements, we may be subject to, among other things, fines, suspension or withdrawal of
regulatory approvals, product recalls, seizure of products, operating restrictions and criminal prosecution.
Pharmaceutical Coverage, Pricing and Reimbursement
Significant uncertainty exists as to the coverage and reimbursement status of product candidates for which we obtain regulatory approval. In the
United States and markets in other countries, sales of any products for which we receive regulatory approval for commercial sale will depend, in part, on the
coverage and reimbursement decisions made by payors. In the United States, third-party payors include government health administrative authorities,
managed care providers, private health insurers and other organizations. The process for determining whether a payor will provide coverage for a drug
product may be separate from the process for setting the price or reimbursement rate that the payor will pay for the drug product. Payors may limit coverage
to specific drug products on an approved list, or formulary, which might not include all of the FDA-approved drug products for a particular indication. Third-
party payors are increasingly challenging the price and examining the medical necessity and cost-effectiveness of medical products and services, in addition
to their safety and efficacy. We may need to conduct expensive pharmacoeconomic studies in order to demonstrate the medical necessity and cost-
effectiveness of our products, in addition to the costs required to obtain the FDA approvals. Our product candidates may not be considered medically
necessary or cost-effective. A payor’s decision to provide coverage for a drug product does not imply that an adequate reimbursement rate will be approved.
Adequate third-party reimbursement may not be available to enable us to maintain price levels sufficient to realize an appropriate return on our investment in
product development.
Several significant laws have been enacted in the United States which affect the pharmaceutical industry. For example, as a result of the Medicare
Prescription Drug, Improvement, and Modernization Act of 2003 (“MMA”), a Medicare prescription drug benefit (Medicare Part D) became effective at the
beginning of 2006. Medicare is the federal health insurance program for people who are 65 or older, certain younger people with disabilities, and people with
End-Stage Renal Disease. Medicare coverage and reimbursement for some of the costs of prescription drugs may increase demand for any products for
which we receive FDA approval. However, we would be required to sell products to Medicare beneficiaries through entities called “prescription drug plans,”
which will likely seek to negotiate discounted prices for our products.
70
Federal, state and local governments in the United States continue to consider legislation to limit the growth of healthcare costs, including the cost of
prescription drugs. Future legislation and regulation could further limit payments for pharmaceuticals such as the product candidates that we are developing.
In addition, court decisions have the potential to affect coverage and reimbursement for prescription drugs. It is unclear whether future legislation,
regulations or court decisions will affect the demand for our product candidates once commercialized.
As another example, in March 2010, President Obama signed into law the Patient Protection and Affordable Care Act and the Healthcare and
Education Reconciliation Act of 2010 (collectively referred to as the “health care reform law”). The health care reform law made significant changes to the
United States healthcare system, such as imposing new requirements on health insurers, expanding the number of individuals covered by health insurance,
modifying healthcare reimbursement and delivery systems, and establishing new requirements designed to prevent fraud and abuse. In addition, provisions in
the health care reform law promote the development of new payment and healthcare delivery systems, such as the Medicare Shared Savings Program,
bundled payment initiatives and the Medicare pay for performance initiatives.
The health care reform law and the related regulations, guidance and court decisions have had, and will continue to have, a significant impact on the
pharmaceutical industry. In addition to the general reforms briefly described above, provisions of the health care reform law directly address drugs. For
example, the health care reform law:
·
·
·
·
increases the minimum level of Medicaid rebates payable by manufacturers of brand-name drugs from 15.1% to 23.1%;
requires Medicaid rebates for covered outpatient drugs to be extended to Medicaid managed care organizations;
requires manufacturers of drugs covered under Medicare Part D to participate in a coverage gap discount program, under which they must
agree to offer 50% point-of-sale discounts off negotiated prices of applicable brand drugs to eligible Medicare beneficiaries during their
coverage gap period; and
imposes a non-deductible annual fee on pharmaceutical manufacturers or importers who sell “branded prescription drugs” to specified
federal government programs.
On January 21, 2016, the Centers for Medicare and Medicaid Services issued final regulations to implement the changes to the Medicaid Drug
Rebate Program under the healthcare reform law. These regulations became effective on April 1, 2016. President Trump has vowed to repeal the healthcare
reform law, and it is uncertain whether new legislation will be enacted to replace the healthcare reform law and whether any such legislation would affect
coverage and reimbursement for prescription drugs or otherwise include provisions intended to limit the growth of healthcare costs. Different pricing and
reimbursement schemes exist in other countries. In the European Community, governments influence the price of pharmaceutical products through their
pricing and reimbursement rules and control of national healthcare systems that fund a large part of the cost of those products to consumers. Some
jurisdictions operate positive and negative list systems under which products may only be marketed once a reimbursement price has been agreed. To obtain
reimbursement or pricing approval, some of these countries may require the completion of clinical trials that compare the cost-effectiveness of a particular
product candidate to currently available therapies. Other member states allow companies to fix their own prices for medicines, but monitor and control
company profits. The downward pressure of healthcare costs in general, particularly prescription drugs, has become very intense. As a result, increasingly
high barriers are being erected to the entry of new products. In addition, in some countries, cross-border imports from low-priced markets exert a commercial
pressure on pricing within a country.
71
The marketability of any drug candidates for which we receive regulatory approval for commercial sale may suffer if the government and third-party
payors fail to provide adequate coverage and reimbursement. In addition, emphasis on managed care in the United States has increased and we expect will
continue to increase the pressure on pharmaceutical pricing. Coverage policies and third-party reimbursement rates may change at any time. Even if favorable
coverage and reimbursement status is attained for one or more products for which we receive regulatory approval, less favorable coverage policies and
reimbursement rates may be implemented in the future.
Intellectual Property
Our success depends, at least in part, on our ability to protect our proprietary technology and intellectual property, and to operate without infringing
or violating the proprietary rights of others. We rely on a combination of patent, trademark, trade secret and copyright laws, know-how, intellectual property
licenses and other contractual rights (including confidentiality and invention assignment agreements) to protect our intellectual property rights.
Patents
As of December 31, 2016, we owned for use within our field of business five families of patents, which are registered or applied for in the United
States and also in the European Union, Russia, Turkey, Israel, certain Latin American countries and other countries, as well other registered patents and/or
patent applications. At present, our two patents protecting our manufacturing process are considered to be material to the operation of our business as a whole.
One such material patent is issued in the United States and expires in 2018. The other material patent has been issued in a variety of jurisdictions, including
Australia, Austria, Belgium, Canada, Denmark, Estonia, Israel, Finland, France, Germany, Greece, Ireland, Italy, Netherlands, Slovenia, Poland, Spain,
Portugal, Sweden, Switzerland, Turkey, the United Kingdom and the United States, and expires in 2024. We are currently focusing mainly on seeking patent
protection in Israel, the United States and Europe.
Our patents generally relate to the separation and purification of proteins and their respective pharmaceutical compositions and are expected to
expire at various dates between 2018 and 2027. We also rely on trade secrets to protect certain aspects of our separation and purification technology.
The patent positions of companies like ours are generally uncertain and involve complex legal and factual questions. Our ability to maintain and
solidify our proprietary position for our technology will depend on our success in obtaining effective claims and enforcing those claims once granted. We do
not know whether any of our patent applications or any patent applications that we license will result in the issuance of any patents and there is no guarantee
that patent applications that were filed with the patent offices, which are still pending, will be eventually granted and will be registered. Additionally, our
issued patents and those that may be issued in the future may be challenged, opposed, 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. We
cannot be certain that we were the first to invent the inventions claimed in our owned patents or patent applications and/or the first to file said patent
applications. In addition, our competitors or other third parties may independently develop similar technologies that don’t fall within the scope of the
technology protected under our patents, or duplicate any technology developed by us, and the rights granted under any issued patents may not provide us with
any meaningful competitive advantages against these competitors. Furthermore, because of the extensive time required for research and development, testing
and regulatory review of a potential product until authorization for marketing, it is possible that, 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 the patent.
72
Trademarks
We rely on trade names, trademarks and service marks to protect our name brands. Our registered trademarks in several countries, such as United
States and the European Union, Israel, and certain Latin American countries, include the trademarks Glassia, RespiKam, KamRAB, Kamada Respira,
Kamada and Rebinolin.
Trade Secrets and Confidential Information
We rely on, among other things, confidentiality and invention assignment agreements to protect our proprietary know-how and other intellectual
property that may not be patentable, or that we believe is best protected by means that do not require public disclosure. For example, we require our
employees, consultants and service providers to execute confidentiality agreements in connection with their engagement with us. Under such agreement, they
are required, during the term of the commercial relationship with us and thereafter, to disclose and assign to us inventions conceived in connection with their
services to us. However, there can be no assurance that these agreements will be fulfilled or shall be enforceable, or that these agreements will provide us with
adequate protection. See “Item 3. Key Information — D. Risk Factors — In addition to patented technology, we rely on our unpatented proprietary
technology, trade secrets, processes and know-how.”
We may be unable to obtain, maintain and protect the intellectual property rights necessary to conduct our business, and may be subject to claims
that we infringe or otherwise violate the intellectual property rights of others, which could materially harm our business. For a more comprehensive summary
of the risks related to our intellectual property, see “Item 3. Key Information — D. Risk Factors.”
Property
Our production plant was built on land that Kamada Assets (2001) Ltd. (“Kamada Assets”), our 74%-owned subsidiary, leases from the Israel Land
Administration pursuant to a capitalized long-term lease, and Kamada Assets subleases the property to us. The property covers an area of approximately
16,880 square meters. The initial sublease expires in 2058 and we have an option to extend the sublease for an additional term of 49 years. The production
plant includes our manufacturing facility, manufacturing support systems, packaging, warehousing and logistics areas, laboratory facilities and an area for the
manufacture of snake bite anti-serum, as well as office buildings.
In addition, we currently lease from a third party approximately 1,398 square meters of a building located in the Kiryat Weizmann Science Park in
Ness Ziona, Israel, under a lease agreement that terminates on May 31, 2017, which currently houses our head office and research and development
laboratory. Commencing January 2017, we lease approximately 2,200 square meters of a building located in the Kiryat Weizmann Science Park in Rehovot,
Israel, which will replace our current Ness Ziona premises.
Environmental
We believe that our operations comply in material respects with applicable laws and regulations concerning the environment. While it is impossible
to predict accurately the future costs associated with environmental compliance and potential remediation activities, compliance with environmental laws is
not expected to require significant capital expenditures and has not had, and is not expected to have, a material adverse effect on our earnings or competitive
position.
73
Organizational Structure
Our significant subsidiaries are set forth below. All subsidiaries are either 100 percent owned by us or controlled by us. All companies are
incorporated and registered in the country in which they operate as listed below:
Legal Name
Kamada Biopharma Limited
Kamada Inc.
Bio-Kam Ltd.
Kamada Assets Ltd.
Legal Proceedings
Jurisdiction
England and Wales
Delaware
Israel
Israel
In January 2012, we were issued a tax payment order from the Israeli Tax Authorities for the 2004 to 2006 tax years in the amount of NIS 17 million
(or approximately $4.4 million) (including accumulated interest and linkage differentials). We appealed this assessment in court and in July 2016, we and the
ITA entered into a settlement agreement, pursuant to which we paid NIS 5 million ($1.3 million) (including interest and CPI adjustment).
In addition to the above proceedings, we are subject to various claims and legal actions during the ordinary course of our business. We believe that
there are currently no claims or legal actions, other than those described above, that would have a material adverse effect on our financial position, operations
or potential performance.
Item 4A. Unresolved Staff Comments
Not applicable.
Item 5. Operating and Financial Review and Prospects
The following discussion of our financial condition and results of operations should be read in conjunction with “Item 3. Key Information—Selected
Financial Data” and our consolidated financial statements and the related notes to those statements included elsewhere in this Annual Report. In addition to
historical consolidated financial information, the following discussion and analysis contains forward-looking statements that involve risks, uncertainties and
assumptions. Our actual results and timing of selected events may differ materially from those anticipated in these forward-looking statements as a result of
many factors, including those discussed under “Item 3. Key Information—D. Risk Factors” and elsewhere in this Annual Report.
The audited consolidated financial statements for the years ended December 31, 2016, 2015, and 2014 in this Annual Report have been prepared in
accordance with IFRS as issued by the IASB. None of the financial information in this Annual Report has been prepared in accordance with U.S. GAAP.
Overview
We are an orphan drug focused, plasma-derived protein therapeutics company with an existing marketed product portfolio and a robust late-stage
product pipeline. We develop and produce specialty plasma-derived protein therapeutics and currently market these products through strategic partners in the
United States and directly, through local distributors, in several emerging markets. We use our proprietary platform technology and know-how for the
extraction and purification of proteins from human plasma to produce AAT in a high purity, liquid form, as well as other plasma-derived proteins. AAT is a
protein derived from human plasma with known and newly discovered therapeutic roles given its immuno-modulatory, anti-inflammatory, tissue protective
and antimicrobial properties. Our flagship product, Glassia, is the first and only liquid, ready-to-use, intravenous plasma-derived AAT product approved by
the FDA. We market Glassia through a strategic partnership with Shire in the United States. Additionally, we have a product line consisting of ten other
injectable pharmaceutical products which are marketed, in addition to Glassia, in more than 15 countries, including Israel, Russia, Brazil, India and other
countries in Latin America and Asia. We currently have five plasma-derived protein products in our development pipeline, including Inhaled AAT for AATD,
for which we completed a pivotal Phase II/III clinical trial in Europe and filed the MAA with the EMA in the first quarter of 2016. See “Item 4. Information
on the Company—Our Product Pipeline and Development Program—Inhaled Formulations of AAT—AATD.” We have also completed a Phase II clinical
trial with our Inhaled AAT for AATD in the United States. In addition, we have completed a pivotal Phase II/III US clinical trial for anti-rabies
immunoglobulin as a post-exposure prophylaxis, we met the trial’s primary endpoint of non-inferiority when measured against an IgG reference product and
we have filed a BLA with the FDA for such product. In addition to our propriety products we leverage our expertise and presence in the plasma-derived
protein therapeutics market by distributing more than 10 complementary products in Israel that are manufactured by third parties.
74
Our Segments
We operate in two segments: the Proprietary Products segment, in which we develop and manufacture plasma-derived therapeutics and market them
in more than 20 countries, and the Distribution segment, in which we distribute drugs mainly for critical use in Israel, which are manufactured by third-
parties, most of which are produced from plasma or its derivative products.
Segment performance is evaluated based on revenues and gross profit (loss). Items that are not allocated to our segments consist mainly of research
and development costs, sales and marketing expenses, general and administrative costs and financial expenses, net, each of which are managed on a group
basis. For the year ended December 31, 2016, we derived $56.0 million of revenues from our Proprietary Products segment, or 72% of total revenues, and $
21.5 million of revenues from our Distribution segment, or 28% of total revenues. For the year ended December 31, 2015, we derived $42.9 million of
revenues from our Proprietary Products segment, or 61% of total revenues, and $27.0 million of revenues from our Distribution segment, or 39% of total
revenues. For the year ended December 31, 2014, we derived $44.4 million of revenues from our Proprietary Products segment, or 62% of total revenues, and
$26.7 million of revenues from our Distribution segment, or 38% of total revenues.
Factors Affecting Our Results of Operations
Growing Demand
Over the past few years, we have seen an increase in demand for products in our Proprietary Products segment. In particular, in 2014, 2015 and
2016, the number of patients treated by Glassia increased by more than 25% each year, and we expect the number of patients to continue to grow over the
medium term as diagnostics improve and disease awareness increases. We expect that our revenues will grow by approximately 30% in 2016, allowing us to
achieve our revenue goal of $100 million by 2017 through increased sales of our existing products in the Proprietary Products segment, mainly driven from
sales of Glassia world-wide. The AAT augmentation market for AATD in the U.S., which is the primary market for Glassia has grown by approximately 10%
annually in the last few years, and we expect that the overall market for Glassia will continue to increase due to new patient identification. Technological
improvements and increased awareness permit innovations in the diagnosis of the illnesses and symptoms. In addition, demand in certain emerging markets
such as Russia, Brazil and India for plasma-derived products have grown and are expected to continue to grow. This demand is driven by enhanced
socioeconomic conditions and more informed patients who are demanding better quality medical care, as well as increasing government healthcare spending
on plasma derivative products in some of these markets. More informed patients are demanding the use of drugs based on human antibodies obtained from
human plasma rather than antibodies obtained from animal blood, which generally have a lower standard of quality and safety.
Additionally, in the United States and Europe, we believe that AATD is currently significantly under-identified and under-treated, as we estimate that
only approximately 7% and 3% of all potential cases of AATD are treated in the United States and Europe, respectively, with an aggregate of up to an
estimated 200,000 patients suffering from AATD, of which less than 10% have been diagnosed. We expect that our market opportunity for our AAT products,
including Glassia and Inhaled AAT for AATD (if approved), will continue to grow as awareness of AATD expands due to factors such as marketing activities,
inexpensive and effective diagnosis tools, and improved training. In addition, various awareness and patient identification programs initiated by companies
producing AATD treatments are expected to increase demand for Glassia and, once approved, Inhaled AAT for AATD. In addition, our product pipeline is
focused on products for indications that will address markets in which we believe have a significant market opportunity, such as indications for the treatment
of GvHD, newly diagnosed Type-1 diabetes, and lung-transplant rejection.
75
Sales of our Distribution segment products are made through public tenders of Israeli hospitals and health maintenance organizations on an annual
basis. The prices we can offer, as well as the availability of products, are key factors in meeting the local demand of the Israeli market.
Our Distribution segment experienced significant growth in sales in recent years except for 2016 due to growing competition and may continue to
grow if we will be able to increase our product portfolio or win more tenders.
Strategic Partnerships
In July 2010, we received FDA approval for the marketing of Glassia in the United States. Following this approval, we entered into a strategic
arrangement with Shire (formerly Baxter and Baxalta) for the marketing and distribution of Glassia in the United States, Canada, Australia and New Zealand
and for the licensing of our technology, granting Shire rights to manufacture Glassia for sales in these territories. We began recognizing revenues from sales
of Glassia in the United States under this strategic arrangement with Shire in September 2010. From the inception of the strategic arrangement through
December 31, 2016, we have received $36.5 million from Shire for distribution rights, a portion of which has been accrued as deferred revenue, and for
achieving milestones set forth in the distribution and licensing agreements. We have recognized cumulative revenues until December 31, 2016 from Shire in
the amount of $187.1 million. We currently generate revenues from sales of Glassia to Shire, and incur cost of revenues to produce it. In accordance with the
latest amendment to the manufacturing and distribution agreement, Shire may begin producing Glassia itself, which is expected to occur not before 2021 at
the earliest, and pay us royalties. As Shire transitions to producing Glassia in its own facilities, our capacity will become available to produce inhaled
formulations of AAT, AAT products for sale in other geographies and indications, or other plasma-derived products. We would generate higher margins from
royalties from Shire under this arrangement, as we would not incur cost of revenues, but we may receive lower revenues. We expect to replace those lower
revenues by producing and selling other products, including inhaled formulations of AAT, if approved, in Europe, Glassia worldwide through local
distributors and, if approved by the competent authorities, anti-rabies product in the United States. Our expectations with respect to Glassia assume the
continuation of our strategic partnership with Shire. See “Item 3. Key Information — D. Risk Factors — In our Proprietary Products segment, we currently
rely on one of our strategic partners that accounts for a significant portion of our total sales and our distribution plan for our principal product candidate relies
on another strategic partner, and any disruption to our relationships with these distributors would have an adverse effect on our results of operations and
profitability.”
In August 2012, we also entered into a strategic agreement with Chiesi, pursuant to which Chiesi will be an exclusive distributor of Inhaled AAT for
AATD in Europe. Chiesi will be responsible for, among other things, product marketing, patient screening and obtaining reimbursement approvals for the
Inhaled AAT for AATD product. As part of the agreement, we are entitled to receive payments of up to $60.0 million, contingent on meeting regulatory and
sales milestones. In addition, Chiesi has committed to purchase Inhaled AAT for AATD in minimum quantities following the second anniversary of obtaining
certain regulatory and reimbursement approvals.
In addition, in July 2011, we signed a strategic agreement with Kedrion to cooperate in the clinical development and exclusive marketing and sales
in the United States of KamRAB, our vaccine against rabies in humans. Kedrion markets its products in Europe, the United States and in approximately 40
other countries worldwide. We have not yet started to generate revenues under this agreement as Kedrion has just completed the Phase III clinical trials in the
United States, which, as stated above, met the trial’s primary endpoint and as stated above, we have filed a BLA with the FDA for such product.
76
Product Development Costs
Since our company was founded, we have focused on developing a broad portfolio of plasma-derived protein therapeutics for a variety of
indications. The development of plasma-derived protein therapeutics is characterized by significant up-front product development costs, including, for
example, costs for conducting pre-clinical and clinical trials to obtain regulatory approvals, regulatory expenses, costs for materials for development, external
consulting and services fees and opportunity costs for reallocating our production facility to produce clinical trial materials and conforming our production
processes for regulatory purposes. In order to reduce costs related to the development and regulatory approval of new protein therapeutics, in some cases we
seek to share development costs with strategic partners, such as Shire for the clinical trials for Glassia in the United States and Kedrion for the clinical trials
for KamRAB in the United States. See “Item 4. Information on the Company — Strategic Partnerships — Shire (Glassia)” and “Business — Strategic
Partnerships — Kedrion (KamRAB).”
Product development costs may fluctuate from period to period, as our product candidates pass through various stages of development. For example,
for the years ended December 31, 2016, 2015 and 2014, we incurred significant research and development expenses related to clinical trials related to Inhaled
AAT for AATD in Europe and the United States and AAT for the treatment of newly diagnosed Type-1 diabetes. We expect to continue to incur research and
development expenses related to clinical trials, as well as other ongoing, planned or future clinical trials with regards to our product pipeline. See “Item 4.
Information on the Company — Our Product Pipeline and Development Program.”
Product Competition
The worldwide market for pharmaceuticals in general and biopharmaceutical and plasma products in particular has in recent years undergone a
process of mergers and acquisitions among companies active in such markets. This trend has led to a reduction in the number of competitors in the market,
and the increase of strengthening of the remaining competitors, mainly for specific immunoglobulin products.
While there are additional producers of AAT products in Europe and the United States, including Shire, we have not seen significant changes in these
producers’ activities in the market. Additionally, our strategic alliance with Shire has strengthened our competitive positioning in the market and we believe
this will contribute to increased revenues in the future. However, this assumes the continuation of our strategic partnership with Shire. See “Item 3. Key
Information — D. Risk Factors — In our Proprietary Products segment, we currently rely on one of our strategic partners that accounts for a significant
portion of our total sales and our distribution plan for our principal product candidate relies on another strategic partner, and any disruption to our
relationships with these distributors would have an adverse effect on our results of operations and profitability.”
Costs of Raw Materials
In our Proprietary Products segment, a significant portion of our manufacturing costs are for raw materials consisting of plasma or fraction IV of
plasma. The consolidation among plasma companies has led to a decrease in the number of plasma suppliers in the world, as either manufacturers of plasma-
based pharmaceuticals purchase plasma suppliers or plasma suppliers are shut down in response to the number of manufacturers of plasma-based
pharmaceuticals decreasing. In addition, in recent years, we have seen an increase in the development efforts for new plasma-derived products.
Historically, we have not been subject to significant pricing fluctuations for plasma or fraction IV due to the consolidation of plasma suppliers or
increased development efforts. Additionally, in order to attempt to prevent future price fluctuations and ensure the availability of plasma and fraction IV, we
have secured supply of plasma and fraction IV from multiple suppliers at fixed prices (subject to adjustments for inflation) for predetermined quantities.
In our Distribution segment, our costs are for the purchase of products for sale from our distributors. Our annual purchases are forecasted each year
with each distributor, but individual product purchases during the year are made on a purchase order basis. For these instances, we do not have minimum
purchase obligations, and as such, are able to respond accordingly to pricing fluctuations that occur year to year. Historically, we have not seen significant
price fluctuations from our two largest suppliers. Unless absent of material changes in the market, such as a significant increase in the price of plasma or
plasma-derivatives shall occur, we do not expect a significant increase in the cost of purchasing products.
77
Key Components of Our Results of Operations
Revenues
In our Proprietary Products segment, we generate revenues from the sale of products and the licensing of our technology to strategic partners.
Historically, we have derived most of our revenues from the sale of products and to a lesser extent from payments by the Israeli government related to our
snake bite antiserum product. In the years ended December 31, 2016, 2015 and 2014, we derived a significant portion of our total revenues from sales of
Glassia to Shire. Sales to Shire accounted for approximately 52%, 37% and 36% of our total revenues in the years ended December 31, 2016, 2015 and 2014,
respectively. Revenue from all sales of Glassia comprised approximately 56%, 43% and 43% of our total revenues for the years ended December 31, 2016,
2015 and 2014, respectively. We expect revenues attributable to the sale of Glassia to Shire will grow in the next four years, in line with the expected
continued increase in the number of patients treated by Glassia and pursuant to the fifth amendment to the Manufacturing, Supply and Distribution
Agreement, until Shire begins production of Glassia, at which time our sales to Shire will be reduced as they are replaced by royalties from Shire.
In our Distribution segment, we generate revenues from the sale in Israel of products produced by third parties. In 2014, sales of IVIG increased due
to our successful marketing efforts and increased demand in the market. In 2015, sales of IVIG again moderately increased. However, due to exchange rate
differences and changes in the market conditions, revenues have moderately decreased compared to 2014. In 2016, sales of IVIG decreased due to growing
competition. Sales of IVIG accounted for approximately 17%, 24% and 26% of our total revenues for the years ended December 31, 2016, 2015 and 2014,
respectively.
In the future, as we further commercialize our products, we expect to derive a greater percentage of our revenues from our Proprietary Products
segment, mainly as a result of continued growth in sales of our existing products, the launch of new AAT products currently in different development phases
and the launch of our anti-rabies specific immunoglobulin in the United States.
Cost of Revenues and Gross Profit
Cost of revenues in our Proprietary Products segment includes expenses for the manufacturing of products such as raw materials, payroll, utilities,
laboratory costs and depreciation. Cost of revenues also includes provisions for write-downs of inventories and inventory write offs. Costs of revenues in our
Distribution segment consists of costs of products acquired, packaging and labeling for sales by us in Israel.
In addition to the successful strategic partnership with Shire and successful penetration to the U.S. market, we have focused during the years ended
December 31, 2016, 2015 and 2014 on increasing our production outputs and improving profitability. In addition, implementing significant technology
improvements and streamlining our manufacturing process resulted in significantly increased manufacturing capacity at our facility. The strategic partnership
with Shire enabled us to achieve economies of scale and lower our per-unit costs, and we believe that the increase in production capacity will lead to a further
increase in profitability. We have been implementing production improvements for Glassia that we expect will lead to improved margins and higher
productivity in anticipation of increased demand for our existing products as well as for additional applications for AAT. Any changes in our Glassia
production processes must be approved by the FDA. In 2012, we submitted a supplement to the FDA with respect to Glassia production improvements. In
March 2013, we received a request from the FDA to submit additional data and explanations prior to its approval of our new production processes, and we
received FDA approval in July 2014. During the second quarter of 2014, inventory in the amount of $3.0 million, produced using the improved
manufacturing process, was written off due to a short shelf life of the inventory and our reevaluation of the fair value of such inventory.
78
Gross profit is the difference between total revenues and the cost of revenues. Gross profit is mainly affected by volume of sales and launching new
products, cost of raw materials and plant maintenance and overhead. We have seen an increase in gross profitability in recent years as a result of the increase
in our sales and the corresponding reduction in per unit costs attributable to greater production output. In 2015, our gross profit increased compared to 2014
primarily due to lower profitability in the Proprietary Products segment in 2014, and a small reduction in total revenues in 2015, due to increased cost of
revenues attributable to our Proprietary Products segment, which offset the effect of the one-time $3.0 million inventory write-off in the second quarter of
2014. In 2016, our gross profit increased compared to 2015 primarily due to higher profitability in the Proprietary Products segment resulting from increase in
Glassia sales and better product mix in the distribution segment compared to 2015.
Our gross margins are generally higher in our Proprietary Products segment (33%, 29% and 27% for the years ended December 31, 2016, 2015 and
2014, respectively), reflecting higher margins on our proprietary products than in our Distribution segment (14.5%, 12.3%, 12.2% for the years ended
December 31, 2016, 2015 and 2014, respectively). In 2016, the gross margin in the Proprietary Products segment was higher than that of 2015 as a result of
increase in the sales of Glassia which was offset by an unexpected continuation of the planned shutdown of our manufacturing plant and an inventory write-
off in the fourth quarter of 2016. In 2015, the gross margin in the Proprietary Products segment was higher than that of 2014 as a result of the effect of the
lack of the one-time $3.0 million inventory write-off in the second quarter of 2014, which offset mainly lower profits resulting from our change in the mix of
our product sold. We expect that our overall gross margins will increase to the extent that our sales from Proprietary Products segment increase as a
percentage of our total sales, and we expect our gross margins in the Proprietary Products segment to increase further to the extent that our sales of Glassia (or
other AAT products) increase as these products have higher gross margins than our immunoglobulin proprietary products sold in "rest of the world" (“ROW”)
countries.
Research and Development Expenses
Research and development expenses are incurred for the development of new products and processes and include conducting clinical trials,
development materials, payroll, including scientists and professionals for product registration and approval, external advisors and the allotted cost of our
manufacturing facility for research and development purposes. While research and development expenses are unallocated on a segment basis, the activities
generally relate to our Proprietary Products segment.
We expect our research and development expenses to remain stable in 2017 to reflect our plan to fund certain additional clinical trials for AAT for
certain additional indications. However, actual spending could differ as our plans change and we invest in other drugs or potentially reduce our anticipated
funding on research for existing products or partner with other parties to fund development.
Selling and Marketing Expenses
Selling and marketing expenses principally consist of expenditures incurred for sales incentive, advertising, marketing or promotional activities,
shipping and handling costs, product liability insurance and business development activities, as well as marketing authorization fees to regulatory agencies.
Due to our strategic partnerships in our Proprietary Products segment, we expect these costs to remain at a similar level other than ongoing effort to increase
sales of existing products. However, we may incur higher expenses in the future, as we have not entered into strategic partnerships for all of our pipeline
products, which we may decide to sell using our own direct sales force. We market our products in our Distribution segment to health maintenance
organizations and hospitals in Israel and recently also began to market products directly to patients.
79
General and Administrative Expenses
General and administrative expenses consist of compensation for employees in executive and administrative functions (including payroll, bonus,
equity compensation and other benefits), office expenses, professional consulting services, legal and audit fees as well as team development. We expect
general and administrative expenses to remain stable.
Financial Income
Financial income is comprised of interest income on amounts invested, in bank deposits and short-term investments and changes in fair value of
financial instruments at fair value through profit or loss.
Income (expense) in respect of currency exchange differences and derivatives instruments
Income (expense) in respect of currency exchange differences and derivatives instruments are comprised of changes on balances in currencies other
than our functional currency. Changes in the fair value of derivatives instruments not designated as hedging instruments are reported to profit or loss.
Financial Expenses
Financial expenses are comprised of changes in the time value of provisions, changes in the fair value of financial assets or liabilities at fair value
through profit and interest and amortization of bank loans and capital leases.
Taxes on Income
We have not been required to pay income taxes since 1997 other than tax withheld in a foreign jurisdiction in 2012 and 2016. In addition, during
2016 we paid $1.3 million to the Israel Tax Authority as a settlement agreement for the tax years 2004-2006.
One of our Israeli facilities has Approved Enterprise status granted by the Investment Center under the Investment Law, which made us eligible for a
grant and certain tax benefits under that law for a certain investment program. The investment program provided us with a grant in the amount of 24% of our
approved investments, in addition to certain tax benefits, which will apply to the turnover resulting from the operation of such investment program, for a
period of up to ten consecutive years from the first year in which we generated taxable income. The tax benefits under the Approved Enterprise status will
expire at the end of 2017. Additionally, we have obtained a tax ruling from the Israeli Tax Authority according to which, among other things, our activity has
been qualified as an “industrial activity,” as defined in the Investment Law, and is also eligible for tax benefits as a Privileged Enterprise, which will apply to
the turnover attributed to such enterprise, for a period of up to ten years from the first year in which we generated taxable income. The tax benefits under the
Privileged Enterprise status are scheduled to expire at the end of 2021. As of the date of this Annual Report, we have not utilized any tax benefits under the
Investment Law, other than the receipt of grants attributable to our Approved Enterprise status.
We may be subject to withholding taxes for payments we receive from foreign countries. If certain conditions are met, these taxes may be credited
against future tax liabilities under tax treaties and Israeli tax laws. However, due to our net operating loss carryforwards, it is uncertain whether we will be
able to receive such credit and therefore, we may incur tax expenses.
We anticipate that as we further expand our sales into other countries, we could become subject to taxation based on such country’s statutory rates
and our effective tax rate could fluctuate accordingly.
80
As of December 31, 2016, we have net operating loss carryforwards of approximately $88.6 million. The net operating loss carryforwards have no
expiration date. Following the full utilization of our net operating loss carryforwards, we expect that our effective income tax rate in Israel will reflect the
benefits discussed above.
Results of Operations
The following table sets forth certain statement of operations data:
$
Revenues from Proprietary Products
Revenues from Distribution
Total revenues
Cost of revenues from Proprietary Products
Cost of revenues from Distribution
Total cost of revenues
Gross profit
Research and development expenses
Selling and marketing expenses
General and administrative expenses
Operating income (loss)
Financial income
Income (expense) in respect of currency exchange differences and derivatives instruments
Financial expense
Income (loss) before taxes on income
Taxes on income
Net income (loss)
(126)
(5,011)
1,722
(6,733) $
(934)
(11,270)
-
(11,270) $
$
81
2016
2014
Year Ended December 31,
2015
(in thousands, except per share data)
55,958 $
21,536
77,494
37,433
18,411
55,844
21,650
16,245
3,243
7,643
(5,481)
469
127
42,952 $
26,954
69,906
30,468
23,640
54,108
15,798
16,530
3,652
7,040
(11,424)
463
625
44,389
26,676
71,065
32,617
23,406
56,023
15,042
16,030
2,898
7,593
(11,479)
404
—
(2,086)
(13,161)
52
(13,213)
Year Ended December 31, 2016 Compared to Year Ended December 31, 2015
Segment Results
Revenues:
Proprietary Products
Distribution
Total
Cost of Revenues:
Proprietary Products
Distribution
Total
Gross Profit:
Proprietary Products
Distribution
Total
Revenues
Change
2016 vs. 2015
2016
2015
Amount
Percent
$
$
$
$
$
$
$
$
$
55,958 $
21,536 $
77,494 $
37,433 $
18,411 $
55,844 $
18,525 $
3,125 $
21,650 $
42,952 $
26,954
69,906 $
30,468 $
23,640
54,108 $
12,484 $
3,314
15,798 $
13,006
(5,418)
7,588
6,965
(5,229)
1,736
6,041
(189)
5,852
30.2%
(20.1)%
10.8%
22.8%
(22.1)%
3.2%
48.3%
(5.7)%
37.0%
In the year ended December 31, 2016, we generated $77.5 million of total revenues, compared to $69.9 million in the year ended December 31,
2015, an increase of $7.6 million, or approximately 10.9%. This increase was primarily due to a 13.0 million increase in our Proprietary Products segment
revenues mainly due to an increase in sales of Glassia in United States, partially offset by a decrease of $5.4 million in our Distribution segment mainly
attributable to decrease in sales of IVIG products due to increased competition for these products.
Cost of Revenues
In the year ended December 31, 2016, we incurred $55.8 million of cost of revenues, compared to $54.1 million in the year ended December 31,
2015, an increase of $1.7 million or approximately 3.2%. The cost of revenues in our Proprietary Products segment increased by $7.0 million, which was
primarily due to increase of a $3.5 million in cost of products sold mainly due to increase in volume of sales and $ 2.6 million resulting from unexpected
temporary shutdown of our manufacturing plant following a routine planned maintenance shutdown and inventory write-off occurred in the fourth quarter.
The cost of revenues in our Distribution segment decreased by $5.2 million, which was primarily due to a decrease in volume of sales.
Gross profit in our Proprietary Products segment increased by $6.0 million in 2016, primarily due to an increase in sales of Glassia in United States,
partially offset the unexpected temporary shutdown of our manufacturing plant and inventory write-off occurred in the fourth quarter of 2016. Gross profit in
our Distribution segment remained stable. As a percentage of total revenues, gross margin increased to 27.9% from 22.6% for the years ended December 31,
2016 and 2015. Gross margin for the Proprietary Products segment, as a percentage of revenues from that segment, was 33.1% and 29.1% for the years ended
December 31, 2016 and 2015, respectively. Gross margin for the Distribution segment, as a percentage of revenues from that segment, was 14.5% and 12.3%
for the years ended December 31, 2016 and 2015. The increase in gross profit margin was primarily driven by an increase in the Proprietary Products segment
revenues.
82
Research and Development Expenses
In the year ended December 31, 2016, we incurred $16.2 million of research and development expenses, compared to $16.5 million in the year ended
December 31, 2015, a slight decrease of $0.3 million, or approximately 2%. This decrease was primarily due to a $1.5 million decrease in facility costs
allocated to research and development partially offset by an increase of $0.5 million in labor costs and a $0.3 million increase in clinical trial and external
consultant costs mainly relating the submission of the MAA to EMA and the BLA to FDA. . Research and development expenses accounted for
approximately 21.0% and 23.6% of total revenues for the years ended December 31, 2016 and 2015, respectively.
Set forth below are the research and development expenses associated with our major development programs in the years ended December 31, 2016
and 2015:
Inhaled AAT
AAT for newly diagnosed Type-1 Diabetes
AAT IV for lung transplant rejection and for GvHD
Anti Rabies
Unallocated salary
Unallocated facility cost allocated to research and development
Unallocated other expenses
Total research and development expenses
Year ended December 31,
2016
2015
(in thousands)
$
$
2,695 $
2,320
194
1,772
5,237
3,244
783
16,245 $
4,939
1,753
-
-
4,566
4,569
703
16,530
Research and development expenses for Inhaled AAT for AATD decreased by $2.2 million due to the completion of the clinical trial and registration
in the European Union that occurred in 2016 and the completion of phase II clinical trial in the U.S. Research and development expenses for Type-1 Diabetes
increased by $0.6 million. In 2016, we had a $1.7 million expense due to BLA submission for our KamRAB product for Prophylaxis treatment of rabies
disease in the United States. Unallocated expenses are expenses that are not managed by project and are allocated between various tasks that are not always
related to a major project. In the years ended December 31, 2016 and 2015, we incurred $5.2 million and $4.6 million, respectively, of unallocated salary
expenses, $3.2 million and $4.6 million, respectively, of facility costs allocated to improvements in processes and $0.8 million and $0.7 million, respectively,
of unallocated other expenses.
Our current intentions as to the short-term development timeline for our major development programs are described in “Business — Our Product
Pipeline and Development Program,” and we also have long-term development goals. However, we cannot determine with full certainty the duration and
completion costs of the current or future clinical trials of our major development programs or if, when, or to what extent we will generate revenues from the
commercialization and sale of any product candidates. We or our strategic partners may never succeed in achieving marketing approval for any product
candidates. The duration, costs and timing of clinical trials and our major development programs will depend on a variety of factors, including the
uncertainties of future clinical and preclinical studies, uncertainties in clinical trial enrollment rates and significant and changing government regulation and
whether our current or future strategic partners are committed to and make progress in programs licensed to them, if any. In addition, the probability of
success for each product candidate will depend on numerous factors, including competition, manufacturing capability and commercial viability. See “Item 3.
Key Information — D. Risk Factors — Risks Related to Our Business and Industry — We may not be able to commercialize our product candidates in
development for numerous reasons.”
83
We will determine which programs to pursue and how much to fund each program in response to the scientific and clinical success of each product
candidate, as well as an assessment of each product candidate's commercial potential. We cannot forecast with any degree of certainty which of our product
candidates, if any, will be subject to future collaborations or how such arrangements would affect our development plans or capital requirements.
Selling and Marketing Expenses
In the year ended December 31, 2016, we incurred $3.2 million of selling and marketing expenses, compared to $3.7 million in the year ended
December 31, 2015, a decrease of $0.5 million, or approximately 13%. This decrease was primarily due to a $0.3 million decrease in marketing support to
distributors and $0.2 million decrease in marketing expenses. Selling and marketing expenses accounted for approximately 4.2% and 5.2% of total revenues
for the years ended December 31, 2016 and 2015, respectively.
General and Administrative Expenses
In the year ended December 31, 2016, we incurred $7.6 million of general and administrative expenses, compared to $7.0 million in the year ended
December 31, 2015, an increase of $0.6 million, or approximately 8.6%. This increase was primarily due to an increase of $0.5 million in labor costs.
General and administrative expenses accounted for approximately 9.9% and 10.1% of total revenues for the years ended December 31, 2016 and 2015,
respectively.
Financial Income
In the years ended December 31, 2016, and December 31, 2015 we generated $0.5 million of financial income from our short term investment
portfolio.
Expense in respect of currency exchange differences and derivatives instruments
In the year ended December 31, 2016, we incurred income of $0.1 million in respect of currency exchange differences on balances in other
currencies versus the U.S. dollar compared to income of $0.6 million in the year ended December 31, 2015.
Financial Expenses
In the year ended December 31, 2016, we incurred $0.1 million of financial expenses, compared to $0.9 million in the year ended December 31,
2015, a decrease of $0.8 million, or approximately 88% associated with a decrease in financial expenses for our convertible debt which was fully repaid at the
end of 2015.
Taxes on Income
In the year ended December 31, 2016, we had $1.7 million taxes on income mainly due to a settlement agreement with the Israeli Tax Authorities for
the tax years 2004-2006, pursuant to which we paid $1.3 million. In the year ended December 31, 2015 we had no taxes on income.
84
Year Ended December 31, 2015 Compared to Year Ended December 31, 2014
Segment Results
Revenues:
Proprietary Products
Distribution
Total
Cost of Revenues:
Proprietary Products
Distribution
Total
Gross Profit:
Proprietary Products
Distribution
Total
Revenues
Year Ended
December 31,
Change
2015 vs. 2014
2015
2014
Amount
Percent
(in thousands)
$
$
$
$
$
$
42,952 $
26,954
69,906 $
30,468 $
23,640
54,108 $
12,484 $
3,314
15,798 $
44,389 $
26,676
71,065 $
32,617 $
23,406
56,023 $
11,772 $
3,270
15,042 $
(1.437)
278
(1,159)
(2,149)
234
(1,915)
712
44
756
(3.2)%
1.0%
(1.6)%
(6.6)%
1.0%
3.4%
(6.0)%
1.63%
5.0%
In the year ended December 31, 2015, we generated $69.9 million of total revenues, compared to $71.1 million in the year ended December 31,
2014, a decrease of $1.2 million, or approximately 0.2%. This decrease was primarily due to a $1.4 million decrease in our Proprietary Products segment
revenues, mainly due to decrease in sales volume, partially offset by an increase of $0.3 million in our Distribution segment mainly attributable to increased
demand and marketing efforts.
Cost of Revenues
In the year ended December 31, 2015, we incurred $54.1 million of cost of revenues, compared to $56.0 million in the year ended December 31,
2014, a decrease of $1.9 million, or approximately 3%. The cost of revenues in our Proprietary Products segment decreased by $2.1 million, which was
primarily due to a $3.0 million onetime inventory write-off in the second quarter of 2014, as there was no corresponding write-off in 2015, and lower stock-
based compensation of $0.6 million, partially offset by an increase of $1.3 million of materials purchase and change in inventory. The cost of revenues in our
Distribution segment increased by $0.2 million, which was primarily due to an increase in volume of sales.
Gross profit in our Proprietary Products segment increased by $0.7 million in 2015, primarily due to a $2.1 million decrease in cost of revenue,
which was mainly attributable to the lack of the $3.0 million inventory write-off in the second quarter of 2014, partially offset by an insignificant decrease in
sales volume. Gross profit in our Distribution segment remained stable. As a percentage of total revenues, gross margin was 22.6% and 21.2% for the years
ended December 31, 2015 and 2014, respectively. Gross margin for the Proprietary Products segment, as a percentage of revenues from that segment, was
29.1% and 26.5% for the years ended December 31, 2015 and 2014, respectively. Gross margin for the Distribution segment, as a percentage of revenues
from that segment, was 12.3% for the years ended December 31, 2015 and 2014. The increase in gross profit margin was primarily driven by the decrease in
the Proprietary Products segment revenues, the effect of which was offset by a decrease in Proprietary Products segment costs.
85
Research and Development Expenses
In the year ended December 31, 2015, we incurred $16.5 million of research and development expenses, compared to $16.0 million in the year ended
December 31, 2014, an increase of $0.5 million, or approximately 3%. This increase was primarily due to a $2.1 million increase in facility costs allocated to
research and development partially offset by a $1.6 million decrease in expense for clinical trials. Research and development expenses accounted for
approximately 23.6% and 22.6% of total revenues for the years ended December 31, 2015 and 2014, respectively.
Set forth below are the research and development expenses associated with our major development programs in the years ended December 31, 2015
and 2014:
Inhaled AAT
AAT for newly diagnosed Type-1 Diabetes
Unallocated salary
Unallocated facility cost allocated to research and development
Unallocated other expenses
Total research and development expenses
Year ended December 31,
2015
2014
(in thousands)
4,939 $
1,753
4,566
4,569
703
16,530 $
6,326
1,959
4,514
2,409
822
16,030
$
$
Research and development expenses for Inhaled AAT for AATD decreased by $1.4 million due to the completion of the clinical trial and preparation
for registration in the European Union. Research and development expenses for Type-1 Diabetes decreased by $0.2 million. Unallocated expenses are
expenses that are not managed by projects and are allocated between various tasks that are not always related to a major project. In the years ended December
31, 2015 and 2014, we incurred $4.5 million each year, of unallocated salary expenses, $4.6 million and $2.4 million, respectively, of facility costs allocated
to improvements in processes and $0.7 million and $0.8 million, respectively, of unallocated other expenses.
Our current intentions as to the short-term development timeline for our major development programs are described in “Business — Our Product
Pipeline and Development Program,” and we have long-term development goals. However, we cannot determine with full certainty the duration and
completion costs of the current or future clinical trials of our major development programs or if, when, or to what extent we will generate revenues from the
commercialization and sale of any product candidates. We or our strategic partners may never succeed in achieving marketing approval for any product
candidates. The duration, costs and timing of clinical trials and our major development programs will depend on a variety of factors, including the
uncertainties of future clinical and preclinical studies, uncertainties in clinical trial enrollment rates and significant and changing government regulation and
whether our current or future strategic partners are committed to and make progress in programs licensed to them, if any. In addition, the probability of
success for each product candidate will depend on numerous factors, including competition, manufacturing capability and commercial viability. See “Item 3.
Key Information — D. Risk Factors — Risks Related to Our Business and Industry — We may not be able to commercialize our product candidates in
development for numerous reasons.”
We will determine which programs to pursue and how much to fund each program in response to the scientific and clinical success of each product
candidate, as well as an assessment of each product candidate's commercial potential. We cannot forecast with any degree of certainty which of our product
candidates, if any, will be subject to future collaborations or how such arrangements would affect our development plans or capital requirements.
86
Selling and Marketing Expenses
In the year ended December 31, 2015, we incurred $3.7 million of selling and marketing expenses, compared to $2.9 million in the year ended
December 31, 2014, an increase of $0.8 million, or approximately 26%. This increase was primarily due to a $0.3 million increase in marketing support to
distributors, $0.2 million increase in wages and $0.2 million increase in marketing expenses. Selling and marketing expenses accounted for approximately
5.2% and 4.0% of total revenues for the years ended December 31, 2015 and 2014, respectively.
General and Administrative Expenses
In the year ended December 31, 2015, we incurred $7.0 million of general and administrative expenses, compared to $7.6 million in the year ended
December 31, 2014, a decrease of $0.6 million, or approximately -7.2%. This decrease was primarily due to a decrease in share base payment expenses.
General and administrative expenses accounted for approximately 10.1% and 10.7% of total revenues for the years ended December 31, 2015 and 2014,
respectively.
Financial Income
In the year ended December 31, 2015, we generated $0.5 million of financial income, compared to $0.4 million in the year ended December 31,
2014, an increase of $0.1 million, or approximately 15%.
Expense in respect of currency exchange differences and derivatives instruments
In the year ended December 31, 2015, we incurred income of $0.6 million in respect of currency exchange differences on balances in other
currencies versus the U.S. dollar. In the year ended December 31, 2014 there was no impact from that line item.
Financial Expenses
In the year ended December 31, 2015, we incurred $0.9 million of financial expenses, compared to $2.1 million in the year ended December 31,
2014, a decrease of $1.2 million, or approximately 55% associated with a decrease in financial expenses for our convertible debt which was partially repaid at
the end of 2014 and paid in full at the end of 2015.
Taxes on Income
In the year ended December 31, 2015, we had no taxes on income, compared to $52,000 incurred from deferred tax assets in the year ended
December 31, 2014.
87
Quarterly Results of Operations
The following tables set forth unaudited quarterly consolidated statements of operations data for the four quarters of fiscal years 2016 and 2015. We
have prepared the statement of operations data for each of these quarters on the same basis as the audited consolidated financial statements included
elsewhere in this Annual Report and, in the opinion of management, each statement of operations includes all adjustments, consisting solely of normal
recurring adjustments, necessary for the fair statement of the results of operations for these periods. This information should be read in conjunction with the
audited consolidated financial statements and related notes included elsewhere in this Annual Report. These quarterly operating results are not necessarily
indicative of our operating results for any future period.
December 31,
2016
September 30,
2016
June 30,
2016
March 31,
2016
December 31,
2015
September 30,
2015
June 30,
2015
March 31,
2015
Three Months Ended
(in thousands)
Revenues
from
Proprietary Products
$
17,688 $
15,044 $
12,106 $
11,120 $
17,525 $
9,553 $
12,708 $
3,173
Revenues
Distribution
from
Total revenues
Cost of revenues from
Proprietary Products
Cost of revenues from
Distribution
Total cost of revenues
Gross profit
Research
and
development expenses
Selling and marketing
expenses
General
administrative
expenses
and
Operating income (loss)
Financial income
in
Income
respect of currency
exchange differences
and derivatives, net
(expense)
Financial expense
Income
(loss) before
taxes on income
Taxes on income
Net income (loss) $
Liquidity and Capital Resources
6,570
24,258
4,329
19,373
6,960
19,066
3,677
14,797
8,143
25,668
6,516
16,069
6,538
19,246
5,757
8,930
13,590
9,433
7,479
6,931
10,649
6,889
9,635
3,295
5,700
19,290
4,968
3,644
13,097
6,276
5,958
13,437
5,629
3,089
10,020
4,777
6,954
17,603
8,065
5,472
12,361
3,708
5,971
15,606
3,640
5,243
8,538
392
4,221
4,415
3,502
4,107
4,425
5,047
3,415
3,643
686
866
856
835
966
950
944
799
1,955
(1,894)
81
2,014
(1,019)
90
1,861
(590)
133
1,813
(1,978)
165
1,881
793
100
1,722
(4,011)
63
1,737
(2,456)
114
1,700
(5,750)
186
259
(20)
(1,574)
234
(1,808) $
(73)
90
(149)
205
(341)
248
513
(39)
(30)
(37)
(110)
(333)
(248)
(243)
(1,041)
-
(1,041) $
(397)
1,188
(1,585) $
(1,999)
300
(2,299)
988
-
$
(4,622)
-
(4,622) $
(2,342)
-
(2,342) $
(5,294)
-
(5,294)
Our primary uses of cash are to fund working capital requirements, research and development expenses and capital expenditures. Historically, we
have funded our operations primarily through cash flow from operations, payments received in connection with strategic partnerships and the issuance of
convertible debentures, warrants to purchase our ordinary shares and other equity securities. The balance of cash and cash equivalents and short-term
investments as of December 31, 2016, 2015 and 2014 totaled $28.6 million, $28.3 million and $51.9 million, respectively.
We have certain strategic partnership and distribution agreements under which we receive payments for the achievement of certain milestones. As of
December 31, 2016, we received an aggregate of $45.5 million in payments under these agreements, and there are $59.5 million in payments under these
agreements that we could potentially receive if we achieve the milestones set forth in such agreements. See “Item 4. Information on the Company— Strategic
Partnerships — Chiesi (Inhaled AAT for AATD product)” and “Item 4. Information on the Company— Strategic Partnerships — Shire (Glassia).”
88
On October 15, 2009, we issued NIS 100 million (or approximately $26.0 million based on the exchange rate reported by the Bank of Israel on
December 31, 2016) in aggregate principal amount of convertible debentures on the TASE. The convertible debentures fully matured on December 1, 2015.
The convertible debentures were convertible into our ordinary shares at a rate of NIS 37.12 par value of debentures per ordinary share, subject to customary
anti-dilution adjustments. During 2014 and 2013, debentures in the aggregate principal amount of approximately $7,000 and $6.5 million, respectively, were
converted to ordinary shares. The rest was repaid during the years 2013, 2014 and 2015.
Our capital expenditures for the years ended December 31, 2016, 2015 and 2014 were $2.6 million, $2.7 million and $3.1 million, respectively. Our
capital expenditures currently relate primarily to the maintenance and improvements of our facilities. We expect our capital expenditures to increase in the
near term as we expand our manufacturing capacity to meet increasing demand to our products.
We believe our current cash and cash equivalents and short-term investments will be sufficient to satisfy our liquidity requirements for the next 12
months.
Cash Flows from Operating Activities
Net cash provided by operating activities was $1.9 million for the year ended December 31, 2016. This net cash provided by operating activities
reflects a net loss of $6.7 million and non-cash expenses of $5.7 million and a decrease in trade receivables of $3.5 million that were collected during 2016.
Net cash used in operating activities was $14.0 million for the year ended December 31, 2015. This net cash used in operating activities reflects a net
loss of $11.3 million and non-cash expenses of $5.1 million partially offset by an increase in trade receivables of $5.6 million that were collected immediately
after the end of 2015 and a decrease in deferred revenues of $2.4 million reflecting revenues that were collected in advance of 2015.
Net cash used in operating activities was $9.9 million for the year ended December 31, 2014. This net cash used in operating activities reflects a net
loss of $13.2 million and non-cash expenses of $8.2 million offset by an increase in inventories of $3.5 million and a decrease in deferred revenues of $4.0
million reflecting revenues that were collected in advance of 2014.
Cash Flows from Investing Activities
Net cash provided by investing activities was $1.6 million for the year ended December 31, 2016. This net cash provided by investing activities
reflects $4.2 million net cash proceeds from sale of short term investments, partially offset by investment in property, plant and equipment of $2.6 million.
Net cash provided by investing activities was $11.2 million for the year ended December 31, 2015. This net cash provided by investing activities
reflects $13.9 million net cash proceeds from sale of short term investments, partially offset by investment in property, plant and equipment of $2.7 million.
Net cash used in investing activities was $26.8 million for the year ended December 31, 2014. This net use of cash reflects investment in property,
plant and equipment of $3.1 million (including capital investment in the new logistic facility) and $23.7 million net cash invested in short term investments.
89
Cash Flows from Financing Activities
Net cash provided by financing activities was $1.5 million for the year ended 2016. This net cash provided by financing activities reflects a $1.5
million net receipt of long term loans. The Company has pledged specific assets which are the subject of those loans.
Net cash used by financing activities was $6.3 million for the year ended December 31, 2015. This net cash used by financing activities reflects a
$7.8 million repayment of convertible debentures offset by $1.2 million proceeds from the exercise of share options and by $0.2 million receipt of long term
loan.
Net cash used by financing activities was $7.6 million for the year ended December 31, 2014. This net cash used by financing activities reflects a $7.7 million
repayment of convertible debentures partially offset by $0.1 million proceeds from the exercise of warrants.
Contractual Obligations and Commitments
The following is a summary of our contractual obligations and commitments as of December 31, 2016 (in thousands):
Purchase commitments
Long-term debt obligations (1)
Operating lease obligations
Total
Total
Less than 1 Year
1 – 3 Years
4-5 Years
6 Year and
thereafter
$
$
29,617
1,903
6,195
37,715 $
-
464
782
1,246
-
890
1,437
2,327
-
549
1,117
1,666
-
-
2,859
2,859
(1)
Includes interest payments on our long term loans which bear annually fixed interest rate in the range of 3.15%-3.55%.
Purchase commitments are obligations under purchase agreement or purchase orders that are non-cancelable. Operating leases consist of contractual
obligations from offices and vehicles leases agreements.
We are also obligated to make certain severance or pension payments to our Israeli employees upon their retirement under Israeli law. Due to the
uncertainty of the timing of future cash flows associated with these payments (see Note 2r and Note 17 in our consolidated financial statements included in
this Annual Report), we are unable to make reasonably reliable estimates for the period of cash settlement, if any, with respect to such obligations.
Seasonality
We have experienced in the past, and expect to continue to experience, certain fluctuations in our quarterly revenues. Historically, our revenues have
been strongest in our first and fourth quarters and weaker in our second and third quarters.
Off-Balance Sheet Arrangements
As of December 31, 2016, we have no off-balance sheet arrangements that have 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 is
material to investors.
90
Critical Accounting Policies and Estimates
This discussion and analysis of our financial condition and results of operations is based on our financial statements, which have been prepared in
accordance with IFRS as issued by the IASB. The preparation of these financial statements requires management to make estimates that affect the reported
amounts of our assets, liabilities, revenues and expenses. Significant accounting policies employed by us, including the use of estimates, are presented in the
notes to the consolidated financial statements included elsewhere in this Annual Report. We periodically evaluate our estimates, which are based on historical
experience and on various other assumptions that management believes to be reasonable under the circumstances. Critical accounting policies are those that
are most important to the portrayal of our financial condition and results of operations and require management’s subjective or complex judgments, resulting
in the need for management to make estimates about the effect of matters that are inherently uncertain. If actual performance should differ from historical
experience or if the underlying assumptions were to change, our financial condition and results of operations may be materially impacted. In addition, some
accounting policies require significant judgment to apply complex principles of accounting to certain transactions, such as acquisitions, in determining the
most appropriate accounting treatment.
While our significant accounting policies are more fully described in Note 2 to our consolidated financial statements appearing elsewhere in this
Annual Report, we believe that the following accounting policies are the most critical for fully understanding and evaluating our financial condition and
results of operations.
Revenue Recognition
Revenues are recognized in profit or loss when the revenues can be measured reliably, it is probable that the economic benefits associated with the
transaction will flow to us and the costs incurred or to be incurred in respect of the transaction can be measured reliably. Revenues are measured at the fair
value of the consideration received less any trade discounts, volume rebates and returns.
Revenues from the sale of goods are recognized when all the significant risks and rewards of ownership of the goods have passed to the buyer and
the seller no longer retains continuing managerial involvement. The delivery date is usually the date on which ownership passes.
We estimate provisions for returns in arrangements allowing the customers to return expired inventory, or inventory that is close to its end of shelf
life, based on historical experience of product returns and specific return exposure.
Milestone revenues are recognized when we meet the milestones.
Contracts that are multiple element arrangements
We entered into strategic alliance agreements under which we grant to our strategic alliance partner an exclusive license to intellectual property
rights for the development and commercialization of our proprietary products. The agreements contain multiple elements, including license fees, payments
based on achievement of specified milestones, funding for research and development services and royalties on sales of our products.
Based on the type of element, revenues from these agreements are allocated to the various accounting units and recognized for each accounting unit
separately. An element constitutes a separate accounting unit if and only if it has a separate value to the customer. Significant judgment is required to allocate
elements to each accounting unit. Depending upon how such judgment is exercised, the timing and amount of revenue recognized could differ significantly.
Revenue in the various accounting units containing elements is recognized when the criteria for revenue recognition regarding the elements of that accounting
unit have been met according to their type and only to the extent of the consideration that is not contingent upon completion or performance of the remaining
elements in the contract.
91
Recognizing revenue on a gross or net basis
We recognize revenues from the distribution of drugs in Israel manufactured by third-parties for clinical uses. If we were to operate or act as an agent
or broker without being exposed to the risks and rewards associated with the transaction, our revenues would be presented on a net basis. However, we
operate as a principal supplier and not as an agent or broker, and therefore, are exposed to the risks and rewards associated with the transaction. As such, our
revenues are presented on a gross basis.
Clinical Trial Accruals and Related Expenses
We accrue and expense costs for clinical trial activities performed by third parties (or CROs), based upon estimates made as of the reporting date of
the work completed over the life of the individual study in accordance with agreements established with the CRO. We determine the estimates of clinical
activities incurred at the end of each reporting period through discussion with internal personnel and outside service providers as to the progress or stage of
completion of trials or services, as of the end of each reporting period, pursuant to contracts with numerous clinical trial centers and CROs and the agreed
upon fee to be paid for such services.
To date, we have not experienced significant changes in our estimates of clinical trial accruals after a reporting period. However, due to the nature of
estimates, we cannot assure you that we will not make changes to our estimates in the future as we become aware of additional information about the status or
conduct of our clinical trials.
Inventories
Inventories are measured at the lower of cost and net realizable value. The cost of inventories is comprised of costs of purchase and shipping and
handling. Net realizable value is the estimated selling price in the ordinary course of business less the estimated costs of completion and the estimated selling
costs.
We periodically evaluate the condition and age of inventories and make provisions for slow-moving inventories accordingly. Unfavorable changes in
market conditions may result in a need for additional inventory reserves that could adversely impact our gross margins. Conversely, favorable changes in
demand could result in higher gross margins when we sell products.
Inventory that is produced following a change in manufacturing process prior to final approval of regulatory authorities is subject to our estimates as
to the probability of receipt of such approval. We periodically reassess the probability of such approval and the remaining shelf life of such inventory. If
regulatory approval is not granted, the cost of this inventory will be charged to research and development expenses.
Impairment of Non-financial Assets
We evaluate the need to record an impairment of the carrying amount of non-financial assets whenever events or changes in circumstances indicate
that the carrying amount is not recoverable. If the carrying amount of non-financial assets exceeds their recoverable amount, the assets are reduced to their
recoverable amount. The recoverable amount is the higher of fair value less costs of sale and value in use. In measuring value in use, the expected future cash
flows are discounted using a pre-tax discount rate that reflects the risks specific to the asset. The recoverable amount of an asset that does not generate
independent cash flows is determined for the cash-generating unit to which the asset belongs. Impairment losses are recognized in profit or loss.
An impairment loss of an asset, other than goodwill, is reversed only if there have been changes in the estimates used to determine the asset’s
recoverable amount since the last impairment loss was recognized. Reversal of an impairment loss, as above, will not be increased above the lower of the
carrying amount that would have been determined (net of depreciation or amortization) had no impairment loss been recognized for the asset in prior years
and its recoverable amount. The reversal of impairment loss of an asset presented at cost is recognized in profit or loss.
92
We recognized an impairment of non-financial assets in 2016 at an amount of $135,000.
Share-based Payment Transactions
Our employees and other service providers are entitled to remuneration in the form of equity-settled share-based payment transactions (options and
restricted shares).
The cost of equity-settled transactions with employees is measured at the fair value of the equity instruments granted at grant date. We use the
binomial model when estimating the grant date fair value of equity settled share options. We selected the binomial option pricing model as the most
appropriate method for determining the estimated fair value of our share-based awards without market conditions. For options granted to service providers,
the fair value is remeasured as the services are received. We use the share price at the grant date when estimating the grant date fair value of equity settled
restricted shares.
The determination of the grant date fair value of options using an option pricing model is affected by estimates and assumptions regarding a number
of complex and subjective variables. These variables include the expected volatility of our share price over the expected term of the options, share option
exercise and cancellation behaviors, expected exercise multiple, risk-free interest rates, expected dividends and the price of our ordinary shares on the TASE,
which are estimated as follows:
·
·
·
·
·
·
Expected Life. The expected life of the share options is based on historical data, and is not necessarily indicative of the exercise patterns of
share options that may occur in the future.
Volatility. The expected volatility of the share prices reflects the assumption that the historical volatility of the share prices on the TASE is
reasonably indicative of expected future trends.
Risk-free interest rate. The risk-free interest rate is based on the yields of non-index-linked Bank of Israel treasury bonds with maturities
similar to the expected term of the options for each option group.
Expected forfeiture rate. The post-vesting forfeiture rate is based on the weighted average historical forfeiture rate.
Dividend yield and expected dividends. We have not recently declared or paid any cash dividends on our ordinary shares and do not intend
to pay any cash dividends. We have therefore assumed a dividend yield and expected dividends of zero.
Share price on the TASE. The price of our ordinary shares on the TASE used in determining the grant date fair value of options is based on
the price on the grant date.
If any of the assumptions used in the binomial model change significantly, share-based compensation for future awards may differ materially
compared with the awards granted previously.
The cost of equity-settled transactions is recognized in profit or loss, together with a corresponding increase in equity, during the period which the
performance and/or service conditions are to be satisfied, ending on the date on which the relevant employees become fully entitled to the award. The
cumulative expense recognized for equity-settled transactions at the end of each reporting period until the vesting date reflects the extent to which the vesting
period has expired and our best estimate of the number of equity instruments that will ultimately vest. The expense or income recognized in profit or loss
represents the change between the cumulative expense recognized at the end of the reporting period and the cumulative expense recognized at the end of the
previous reporting period.
93
No expense is recognized for awards that do not ultimately vest, except for awards where vesting is conditional upon a market condition, which are
treated as vesting irrespective of whether the market condition is satisfied, provided that all other vesting conditions (service and/or performance) are
satisfied.
If we modify the conditions on which equity-instruments were granted, an additional expense is recognized for any modification that increases the
total fair value of the share-based payment arrangement or is otherwise beneficial to the employee/other service provider at the modification date.
If a grant of an equity instrument is cancelled, it is accounted for as if it had vested on the cancellation date, and any expense not yet recognized for
the grant is recognized immediately. However, if a new grant replaces the cancelled grant and is identified as a replacement grant on the grant date, the
cancelled and new grants are accounted for as a modification of the original grant, as described above.
Post-employment Benefits Liabilities
Our post-retirement benefit plans are normally financed by contributions to insurance companies and classified as defined contribution plans or as
defined benefit plans.
We operate a defined benefit plan in respect of severance pay pursuant to the Severance Pay Law. See Note 2r and Note 17 in our consolidated
financial statements included in this Annual Report for more details.
The present value of our severance pay depends on a number of factors that are determined on an actuarial basis using a number of assumptions. The
assumptions used in determining the net cost or income for severance pay and plan assets include a discount rate. Any changes in these assumptions will
impact the carrying amount of severance pay and plan assets.
Other key assumptions inherent to the valuation include employee turnover, inflation, expected long term returns on plan assets and future payroll
increases. The expected return on plan assets is determined by considering the expected returns available on assets underlying the current investments policy.
These assumptions are given a weighted average and are based on independent actuarial advice and are updated on an annual basis. Actual circumstances may
vary from these assumptions, giving rise to a different severance pay liability.
Accounting for Income Taxes
At the end of each reporting period, we are required to estimate our income taxes. There are transactions and calculations for which the ultimate tax
determination is uncertain during the ordinary course of business, determined according to complex tax laws and regulations. Where the effect of these laws
and regulations is unclear, we use estimates in determining the liability for the tax to be paid on our past profits, which we recognize in our financial
statements. We believe the estimates, assumptions and judgments are reasonable, but this can involve complex issues which may take a number of years to
resolve. Where the final tax outcome of these matters is different from the amounts that were initially recorded, such differences will impact the income tax
and deferred income tax provisions in the period in which such determination is made.
94
Short-term investments
Our short term bank investments include deposits that have a maturity of more than three months from the deposit date but less than one year,
financial assets held for trading at fair value through profit or loss and Available for Sale (“AFS”) financial investments that include equity investments and
debt securities. Equity investments classified as AFS are those that are classified as neither held for trading nor designated as fair value through profit or loss.
Debt securities in this category are those that are intended to be held for an indefinite period of time and that may be sold in response to needs for liquidity or
in response to changes in the market conditions. After initial measurement, AFS financial investments are subsequently measured at fair value with unrealized
gains and losses recognized in OCI and credits in the AFS reserve until the investment is derecognized, at which time the cumulative gain or loss is
recognized in other operating income, or the investment is determined to be impaired, at which time the cumulative loss is reclassified from AFS reserve to
the statement of profit or loss as a finance cost. Interest earned while holding AFS financial investments is reported as interest income using the EIR
(Effective Interest Rate) method. For AFS financial investments, we assess at each reporting date whether there is objective evidence that an investment is
impaired. We have classified all marketable securities as short-term, even though the stated maturity date may be one year or more beyond the current balance
sheet date, because we may sell these securities prior to maturity to meet liquidity needs or as part of a risk versus reward assessment.
Item 6. Directors, Senior Management and Employees
Executive Officers and Directors
The following table sets forth certain information relating to our executive officers and directors as of March 1, 2017.
Name
Executive Officers:
Amir London
Gil Efron
Liliana Bar, PhD
Yael Brenner
Shani Dotan
Eran Nir
Orit Pinchuk
Dr. Naveh Tov
Ruth Wolfson, PhD
Directors:
Leon Recanati*
David Tsur
Dr. Michael Berelowitz*
Avraham Berger*
Jonathan Hahn
Dr. Abraham Havron*
Gwen A. Melincoff *
Saadia Ozeri*
___________
*
Age Position
48
51
62
54
44
44
52
53
70
68
66
72
65
34
69
64
47
Chief Executive Officer
Deputy Chief Executive Officer and Chief Financial Officer
Vice President, Research and Development & IP
Vice President, Quality
Vice President, Human Resources
Vice President, Operations
Vice President, Regulatory Affairs
Vice President, Clinical Development and Medical Director for Pulmonary Diseases
Senior Vice President, Scientific Affaires
Chairman
Director, Active Deputy Chairman
Director
Director
Director
Chairman of Audit Committee and Chairman of Compensation Committee
Director
Director
Independent director under the Nasdaq listing requirements.
95
Executive Officers
Amir London has served as our Chief Executive Officer since July 2015. Prior to that, Mr. London served as our Senior Vice President, Business
Development since December 2013. Mr. London brings with him over 20 years of senior management and international business development experience.
From 2011 to 2013, Mr. London served as the Chief Operating Officer of Fidelis Diagnostics, a U.S.-based provider of innovative in-office medical
diagnostic services. Earlier in his career, from 2009 to 2011, Mr. London was the Chief Executive Officer of Promedico, a leading Israeli-based $350 million
healthcare distribution company, and the General Manager of Cure Medical, from 2006 to 2009, providing contract manufacturing services for clinical
studies, as well as home-care solutions. From 1995 to 2006, Mr. London was a Partner with Tefen, an international publicly-traded operations management
consulting firm, responsible for the firm's global biopharma practice. Mr. London holds a B.Sc. degree in Industrial and Management Engineering from the
Technion – Israel Institute of Technology.
Gil Efron has served as our Deputy Chief Executive Officer and Chief Financial Officer since July 2015. Prior to that, Mr. Efron served as our Chief
Financial Officer from September 2011. Mr. Efron has over 20 years of experience in various finance management positions. From February 2006 until 2011,
Mr. Efron served as Chief Financial Officer of RRsat Global Communications Ltd. (Nasdaq: RRST), a provider of distribution and content management
services for television and radio broadcasting networks. Prior to that, Mr. Efron served in various finance positions, including as Chief Financial Officer of
Proficiency Ltd., as Chief Financial Officer of IP Planet Network Ltd. and as a senior auditor with the Israeli member firm of PricewaterhouseCoopers. Mr.
Efron also served as a director of Poalim Ventures I Ltd. Mr. Efron is a certified public accountant in Israel and holds a BA degree in Economics and
Accounting and an MA degree in Business Administration from the Hebrew University of Jerusalem.
Dr. Liliana Bar has served as our Vice President, Research and Development since June 2012. Prior to joining us, Dr. Bar was Director of the
Development and Base Business Unit and Manager of the Development and Base Unit of Omrix from 2007. Dr. Bar holds a M.Sc. degree and PhD in
Applied Chemistry from the Hebrew University of Jerusalem and was a Research Associate at the Biochemistry Department at Hadassah Medical School at
the Hebrew University of Jerusalem and a Research Associate at the Biochemistry Department of University of Virginia.
Yael Brenner has served as our Vice President, Quality since March 2015. Ms. Brenner has more than 20 years of experience in Quality
Management, including Quality Assurance and Quality Control managerial positions in the pharmaceutical industry. Prior to joining Kamada, from 2007 to
2015, Ms. Brenner was at Teva Pharmaceuticals Industries, lastly as Senior Director Quality Operations of Teva Kfar Sava Site, managing over 400
employees in Quality Assurance, Quality Control and Regulatory Affairs. Ms. Brenner holds B.Sc. and M.Sc. degrees in Chemistry from the Technion - Israel
Institute of Technology, and in addition is a Certified Quality Engineer (CQE) from the American and Israeli Societies for Quality.
Shani Dotan has served as our Vice President, Human Resources since November 2013. Ms. Dotan has more than a decade of expertise in local and
global organizations and in all HR aspects. Prior to joining us, Ms. Dotan served as the Human Resources Manager at Teva Pharmaceuticals at the Jerusalem
plant from 2010 to 2013 and a Training Manager at Teva Pharmaceuticals at two plants from 2007 to 2010. Ms. Dotan holds an MA degree and a BA degree
in Psychology, both from Ben-Gurion University.
Eran Nir has served as our Vice President, Operations and Plant Manager since November 1, 2016. Mr. Nir has over 14 years of operations
management experience in the pharmaceutical and medical industries. Mr. Nir’s recent roles include management of TEVA's Pharmaceutical plant in
Jerusalem from 2002 to 2011, VP Operations of Amelia Cosmetics from 2014 to 2015 and management of a medical equipment plant of Philips Medical
Systems from 2015 to 2016. Mr. Nir’s extensive experience spans across the management of large scale FDA and EMA- approved manufacturing facilities,
tech-transfer of new products from development to production and the implementation of world-class operational excellence systems. Mr. Nir holds a B.Sc.
degree in Industrial and Management Engineering and a MBA degree in Business Management, both from Ben-Gurion University.
Orit Pinchuk has served as our Vice President, Regulatory Affairs since October 2014. Ms. Pinchuk has experience of more than 20 years in the
pharmaceutical industry, fulfilling key positions that cover, among others, disciplines of Regulatory Affairs and Compliance. Prior to joining Kamada, Ms.
Pinchuk was at Teva Pharmaceuticals Industries, from 1993 to 2014, where she served as Director of Compliance and Regulatory Affairs, Operation Israel
and Senior Director Regulatory Affairs, Research and Development and Operation Israel. Ms. Pinchuk has extensive experience with FDA, EMA and
CANADA Health Authorities. Ms. Pinchuk holds a B.Tech degree in Textile Chemistry from Shenkar College for Engineering and Design and M.Sc. degree
in Applied Chemistry from the Hebrew University of Jerusalem.
96
Dr. Naveh Tov has served as our Vice President, Clinical Development and Medical Director for Pulmonary Diseases, since July 2016. Prior to
joining us, Dr. Tov has served as our Medical Director in a part- time consultancy role, from 2007. Dr. Tov served in both active hospital academic and
clinical positions at Bnei Zion Medical Center, Haifa, Israel from 1994 through 2016. Dr. Tov specializes in Internal, Pulmonary and Sleep Medicine and
served as Head of the Pulmonary Unit and as Deputy of Internal Ward C at Bnei Zion Medical Center, for 14 years from 2002 through 2016. During these
years, Dr. Tov served in academia and held appointments at the Ruth and Bruce Rappaport Faculty of Medicine of The Technion – Israel Institute of
Technology. Dr. Tov is a member of the American Thoracic Society and the European Respiratory Society. Dr. Tov holds an M.D. and a Ph.D. from the Ruth
and Bruce Rappaport Faculty of Medicine of The Technion – Israel Institute of Technology.
Dr. Ruth Wolfson has served as our Senior Vice President, Scientific Affairs since January 2015. Prior to that, Ms. Wolfson served as our Senior Vice
President, Quality and Regulatory Affairs from 2010 through 2014 and as our Vice President, Regulatory Affairs from 2004 to 2010. Ms. Wolfson has more
than 15 years of experience in regulatory affairs, including submissions to the FDA, EMA and the Health Protection Branch in Canada. From 1989 to 2004,
she served as Head of Regulatory Affairs at InterPharm Laboratories Ltd., a biopharmaceutical corporation. Ms. Wolfson holds a B.Sc. degree in Agriculture
and an M.Sc. degree in Biochemical Agriculture, both with distinction, from the Hebrew University of Jerusalem, as well as a PhD from the Weizmann
Institute’s Department of Biochemistry.
Directors
Leon Recanati has served on our board of directors since May 2005 and has served as Chairman since March 2013. Mr. Recanati currently serves as
a board member of Evogene Ltd., a plant genomics company listed on the TASE and New York Stock Exchange. Mr. Recanati is also a board member of the
following private companies: GlenRock Israel Ltd., GlenRock Medical, Gov, Govli Limited, Microbes Inc., RelTech Holdings Ltd., Legov Ltd., Insight
Capital Ltd., and Shavit Capital Funds. He is currently Chairman and Chief Executive Officer of GlenRock. Previously, Mr. Recanati was Chief Executive
Officer and/or Chairman of IDB Holding Corporation; Clal Industries Ltd.; Azorim Investment Development and Construction Co Ltd.; Delek Israel Fuel
Corporation; and Super-Sol Ltd. Mr. Recanati also founded Clal Biotechnologies Industries Ltd., a biotechnology investment company operating in Israel. Mr.
Recanati holds an MBA degree from the Hebrew University of Jerusalem and Honorary Doctorates from the Technion – Israel Institute of Technology and
Tel Aviv University.
David Tsur has served as Active Deputy Chairman of our board of directors since July 2015. Prior to that, Mr. Tsur served as our Chief Executive
Officer and a director since our inception. Prior to co-founding Kamada in 1990, Mr. Tsur served as Chief Executive Officer of Arad Systems and RAD
Chemicals Inc. Mr. Tsur has also held various positions in the Israeli Ministry of Economy and Industry (formerly named the Ministry of Industry and Trade),
including Chief Economist and Commercial Attaché in Argentina and Iran. Mr. Tsur holds a BA degree in Economics and International Relations and an
MBA in Business Management from the Hebrew University of Jerusalem.
Dr. Michael Berelowitz has served on our board of directors since August 2015. Dr. Berelowitz brings over 40 years of clinical development and
academic research experience, including 15 years of pharmaceutical development experience with Pfizer, Inc. From 2011 through 2015, Dr. Berelowitz served
as a member of the board of directors of Endocrine Fellows Foundation and currently serves as the chair of the corporate governance and nominations
committee and is a member of the audit comment of Recro Pharma, Inc. Dr. Berelowitz also currently serves as a member of the compensation committee of
Oramed Pharmaceuticals Inc. where he has served on the board since May 2010. While at Pfizer, Dr. Berelowitz was Senior Vice President and Head of
Clinical Development and Medical Affairs in the Specialty Care Business Unit. Dr. Berelowitz held various other roles at Pfizer, beginning as a Medical
Director in the Diabetes Clinical Research team and then assuming positions of increasing responsibility. Prior to that, Dr. Berelowitz spent a number of years
in academia and has held appointments at the University of Chicago, University of Cincinnati College of Medicine, SUNY at StonyBrook and, most recently,
Mount Sinai School of Medicine. Dr. Berelowitz holds a MBChB degree from University Of Cape Town- School of Medicine.
97
Avraham Berger has served on our board of directors since August 2016. Mr. Berger was initially elected as an external director (within the meaning
of the Companies Law) and served in such capacity until January 30, 2017, since which time he has served as an ordinary (non-external) director. Until 2014,
Mr. Berger served as a senior partner and chief executive officer of PwC Israel, for more than 20 years. Mr. Berger joined PwC Israel in 1976 and led it from
1991. Mr. Berger has vast experience in mergers and acquisitions and complex public offerings, both in Israel and abroad. Mr. Berger lectures at professional
forums and has published several articles in the professional press. Mr. Berger also serves as Chairman of the board of directors of TopAudio Ltd. and serves
as director on the board of Weizmann Institute of Science. Mr. Berger holds a Bachelor’s degree in Accounting and Economics awarded from Tel Aviv
University and is a certified public accountant in Israel.
Jonathan Hahn has served on our board of directors since March 2010. Mr. Hahn serves as the President and a director of Tuteur where he has been
since 2013. Prior to that, Mr. Hahn served as Strategic Planning Manager at Tuteur and held a business development position in Forest Laboratories, Inc.,
based in New York. Mr. Hahn holds a BA degree from San Andrés University and an MBA degree from New York University — Stern School of Business,
with specializations in Finance and Entrepreneurship.
Dr. Abraham Havron has served on our board of directors since March 2011. Mr. Havron was initially elected as an external director (within the
meaning of the Companies Law) and served in such capacity until January 30, 2017, since which time he has served as an ordinary (non-external) director.
From 2005 to 2014, Dr. Havron has served as the Chief Executive Officer and a director of PROLOR Biotech Ltd., which in 2013 merged with OPKO Health
Inc. Dr. Havron is a 35-year veteran of the biotechnology industry and was a member of the founding team and Director of Research and Development of
Interpharm Laboratories Ltd. (a subsidiary of Merck Serono S.A.) from 1980 to 1987. Dr. Havron served as Vice-President Manufacturing and Process-
Development of BioTechnology General Ltd., based in Rehovot, Israel (now, a subsidiary of Ferring Pharmaceuticals) from 1987 to 1999; and Vice President
and Chief Technology Officer of Clal Biotechnology Industries Ltd. from 1999 to 2003. Since 2014, Dr. Havron has also served on the board of directors of
MediWound Ltd. (Nasdaq: MDWD) and Enlivex Theraputics Ltd., a private company. Dr. Havron earned his PhD in Bio-Organic Chemistry from the
Weizmann Institute of Science, and served as a Research Fellow at the Harvard Medical School, Department of Radiology.
Gwen A. Melincoff has served on our board of directors since February, 2017. Ms. Melincoff has over 25 years of leadership experience in the
biotechnology and pharmaceutical industries. Her experience has spanned public and private company boards, venture financing, business development,
licensing, mergers and acquisitions, research operations, marketing, product management and project management. Ms. Melincoff is an advisor to Phase 1
Ventures and Verge Genomics. From August 2014 to September 2016, she served as Vice President of Business Development at BTG International Inc. a UK-
specialist healthcare company. From September 2004 to the December 2013, Ms. Melincoff was Senior Vice President of Business Development at Shire
Pharmaceuticals. Additionally, from 2010 to 2013 she led the Strategic Investment Group (SIG). Ms. Melincoff served as a board member/board observer at
Tobira Therapeutics (acquired by Allergan), DBV Technologies, AM Pharma, ArmaGen Technologies, Promethera Biosciencs, Naurex Inc. (acquired by
Allergan) and Enterome. Ms. Melincoff was named a “Top Women in Biotech 2013” by Fierce Biotech as well as being named to the Powerlist 100 of
Corporate Venture Capital in 2012 and 2013. Prior to joining Shire, Ms. Melincoff held managerial and business development position at various
pharmaceutical companies such as Adolor Corporation. Ms. Melincoff has a B.S in Biology, a Master’s of Science in Management, and has attained the
designation of the Certified Licensing Professional (CLP™).
98
Saadia Ozeri has served on our board of directors since May 8, 2016. Mr. Ozeri has extensive experience across a broad range of industries and
geographies in business strategy, management and financing. Since August 2013, Mr. Ozeri has served as the Chief Executive Officer of Kuf Dalet (104)
Ltd., a private holding company engaged in investments in technology, real estate and infrastructure. Mr. Ozeri also serves as the Chairman of the Board of
Rotshtein Nadlan Ltd., a real estate public company traded on the TASE. Since December 2007, Mr. Ozeri has provided consulting services to the Hahn
family, including with respect to its holdings in our Company. Mr. Ozeri served as our Chief Financial Officer from 2004 to 2007, leading our initial public
offering and listing on the TASE. Mr. Ozeri holds a BA degree (majoring in Accountancy) from the College of Management – Academic Studies and is a
certified public accountant in Israel.
Under a shareholders' agreement entered into on March 6, 2013, the Recanati Group, on the one hand, and the Damar Group, on the other hand, have
each agreed to vote the ordinary shares beneficially owned by them in favor of the election of director nominees designated by the other group as follows: (i)
three director nominees, so long as the other group beneficially owns at least 7.5% of our outstanding share capital, (ii) two director nominees, so long as the
other group beneficially owns at least 5.0% (but less than 7.5%) of our outstanding share capital, and (iii) one director nominee, so long as the other group
beneficially owns at least 2.5% (but less than 5.0%) of our outstanding share capital. In addition, to the extent that after the designation of the foregoing
director nominees there are additional director vacancies, each of the Recanati Group and Damar Group have agreed to vote the ordinary shares beneficially
owned by them in favor of such additional director nominees designated by the party who beneficially owns the larger voting rights in our company. See
“Item 7. Major Shareholders and Related Party Transactions — Related Party Transactions — Shareholder Agreement.”
Board of Directors
Under our articles of association, the number of directors on our board of directors must be no less than five and no more than 11. Our current board
of directors consists of eight directors, six of whom qualify as “independent directors” under the Nasdaq listing requirements, such that we comply with the
NASDAQ Listing Rule that requires that a majority of our board of directors be comprised of independent directors, within the meaning of NASDAQ Listing
Rules.
Our directors are elected by the vote of a majority of the ordinary shares present, in person or by proxy, and voting at a shareholders’ meeting. Each
director will hold office until the first annual general meeting of shareholders following his or her appointment, unless the tenure of such director expires
earlier pursuant to the Companies Law or unless he or she is removed from office as described below.
Vacancies on our board of directors, including vacancies resulting from there being fewer than the maximum number of directors permitted by our
articles of association, may generally be filled by a vote of a simple majority of the directors then in office.
A general meeting of our shareholders may remove a director from office prior to the expiration of his or her term in office by a resolution adopted
by holders of a majority of our shares voting on the proposed removal, provided that the director being removed from office is given a reasonable opportunity
to present his or her case before the general meeting.
Alternate Directors
As permitted under the Companies Law, our articles of association provide that any director may, subject to the board of directors’ approval, by
written notice to us, appoint another person who is qualified to serve as a director to serve as an alternate director. 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 may not be
appointed as an alternate director. Nevertheless, 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. Similarly, an independent director within the meaning of the Companies Law may not
appoint an alternate director unless such alternate director is eligible to be an independent director within the meaning of the Companies Law. An alternate
director may be appointed for one meeting of the board of directors or until notice is given of the cancellation of the appointment.
99
External Directors
Under the Companies Law, companies incorporated under the laws of the State of Israel that are “public companies,” must appoint at least two
external directors who meet the qualification requirements in the Companies Law.
However, according to a recent amendment to regulations promulgated under the Companies Law, a company whose shares are traded on certain
stock exchanges outside Israel (including the Nasdaq Global Select Market, such as our company) that does not have a controlling shareholder and that
complies with the requirements of the laws of the foreign jurisdiction where the company’s shares are listed, as they apply to domestic issuers, with respect to
the appointment of independent directors and the composition of the audit committee and compensation committee, may elect to exempt itself from the
requirements of Israeli law with respect to (i) the requirement to appoint outside directors and that one outside director serve on each committee of the board
of directors authorized to exercise any of the powers of the board of directors; (ii) certain limitations on the employment or service of an outside director or
his or her spouse, children or other relatives, following the cessation of the service as an outside director, by or for the company, its controlling shareholder or
an entity controlled by the controlling shareholder; (iii) the composition, meetings and quorum of the audit committee; and (iv) the composition and meetings
of the compensation committee. If a company has elected to avail itself from the requirement to appoint external directors and at the time a director is
appointed all members of the board of directors are of the same gender, a director of the other gender must be appointed. According to the exemption, an
external director serving at the time a company elects to adopt the exemption may continue to serve as an “ordinary” (non-external) director until the earlier
of (i) the end of his/her term and (ii) the second annual general meeting after the adoption of the exemption (and thereafter may be re-elected for multiple
terms), despite the two year “cooling off period during which former external directors are generally prohibited from serving in any capacity for an Israeli
company following external director service.
On January 30, 2017, following analysis of our qualification to rely on the exemption, our board of directors determined to adopt the exemption,
following which our former external directors, Dr. Abraham Havron and Avraham Berger, continue to serve as ordinary (non-external) directors. In
accordance with the exemption, Avraham Berger will continue to serve term as an ordinary (non-external) director until our 2018 annual general meeting, and
may thereafter be re-elected as a director in accordance with the Companies Law. Dr. Havron’s term as an external director was scheduled to expire in January
2017, and therefore, he was appointed by our board of directors to serve as an ordinary (non-external) director until our next annual general meeting, and he
may thereafter be re-elected as a director in accordance with the Israeli Companies Law.
Qualifications of External Directors
A person may not serve as an external director if the person is a relative of a controlling shareholder. The Companies Law defines “relative” as a
spouse, sibling, parent, grandparent, descendant, or spouse’s descendant, sibling or parent, and the spouse of each of the foregoing. The Companies Law
provides that a person may not serve as an external director if, on the date of the person’s appointment or within the preceding two years, the person or his or
her relatives, partners, employers or anyone to whom that person is subordinate, whether directly or indirectly, or entities under the person’s control have or
had any affiliation with the company, any controlling shareholder of the company or relative of a controlling shareholder, or any entity that, as of the
appointment date is, or at any time during the two years preceding that date was, controlled by the company or by the company’s controlling shareholder
(each an “Affiliated Party”). If there is no controlling shareholder or any shareholder holding 25% or more of our voting rights, a person may not serve as an
external director if the person has any affiliation to the chairman of the board of directors, the chief executive officer, any shareholder holding 5% or more of
the company’s shares or voting rights or the most senior financial officer as of the date of the person’s appointment.
100
The term affiliation includes (subject to certain exceptions):
·
·
·
·
an employment relationship;
a business or professional relationship, even if not maintained on a regular basis (excluding insignificant relationships);
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 Companies Law defines “office holder” as a general manager, chief business manager, deputy general manager, vice general manager, any other
person assuming the responsibilities of any of the foregoing positions, without regard to such person’s title, a director and any other manager directly
subordinate to the general manager.
Additionally, any person who has received, during his or her tenure as an external director, direct or indirect compensation from the company for his
or her role as a director, other than compensation permitted under the Companies Law and the regulations promulgated thereunder (including indemnification
or exculpation, the company’s commitment to indemnify or exculpate such person and insurance coverage), may not continue to serve as an external director.
No person may serve as an external director if the person’s positions or other affairs create, or may create, a conflict of interest with that person’s
responsibilities as a director, or may otherwise interfere with such person’s ability to serve as a director, or if the person is an employee of the Israel Securities
Authority or of an Israeli stock exchange. If at the time an external director is appointed all current members of the board of directors, who are not controlling
shareholders or relatives of controlling shareholders, are of the same gender, then the external director to be appointed must be of the other gender. In
addition, a person who is a director of a company may not be elected as an external director of another company if, at that time, a director of the other
company is acting as an external director of the first company.
The Companies Law and the regulations promulgated thereunder provide that an external director must meet certain professional qualifications or
have financial and accounting expertise. At least one external director must have financial and accounting expertise. However, if at least one of our other
directors (1) meets the independence requirements under applicable U.S. laws and the Nasdaq listing requirements for membership on the audit committee
and (2) has financial and accounting expertise as defined in the Companies Law and applicable regulations, then none of our external directors is required to
possess financial and accounting expertise as long as they possess the requisite professional qualifications. The board of directors determines whether a
director possesses financial and accounting expertise. A director with financial and accounting expertise is a director who by virtue of his or her education,
professional experience and skills, has a high level of proficiency in and understanding of business accounting matters and financial statements so that he or
she is able to understand in depth our financial statements and initiate debate regarding the manner in which the financial information is presented.
Similarly, the board of directors also determines whether a director possesses the requisite professional qualifications. 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 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 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
volume of business; (b) a senior position in the company’s primary field of business; or (c) a senior position in public administration or service.
101
Until the lapse of a two-year period from the date that an external director has ceased to act as an external director, (1) neither the company, nor its
controlling shareholders, including any corporations controlled by a controlling shareholder, may grant such former external director or his or her spouse or
children any benefits (directly or indirectly), (2) such person may not be engaged to serve as an office holder at the company or any corporation controlled by
a controlling shareholder, and (3) such person may not be employed or receive professional services for payment from a controlling shareholder, directly or
indirectly, including through a corporation controlled by a controlling shareholder. Additionally, until the lapse of a one-year period from the date that an
external director has ceased to act as an external director, any relative of the former external director who is not his or her spouse or children is subject to
these prohibitions. However, if a company has elected to avail itself from the requirement to appoint external directors under the Companies law in
accordance with an exemption provided under a recent amendment to regulations promulgated under the Companies Law (as described above), directors
serving as external directors prior to the adoption of the exemption may continue to serve as “ordinary” directors and such two-year “cooling off” period shall
not apply to those external directors.
Election and Dismissal of External Directors
Under Israeli law, external directors are elected by a majority vote at a shareholders’ meeting, provided that either:
·
·
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 shareholders 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 non-controlling shareholders and shareholders 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) that are voted against
the election of the external director does not exceed 2% of the aggregate voting rights in the company.
Under Israeli law, the initial term of an external director of an Israeli public company is three years. The external director may be reelected, subject
to certain circumstances and conditions, to two additional terms of three years provided that either:
·
·
his or 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, and provided further that the
external director is not an affiliated or competing shareholder, as defined in the Companies Law, or a relative of such a shareholder at the
time of the appointment, and is not affiliated with such a shareholder at the time of appointment or within the two years preceding the date
of appointment;
his or her service for each such additional term is recommended by the board of directors and is approved at a shareholders meeting by the
same majority required for the initial election of an external director (as described above); or
102
·
such external director nominates himself or herself for each such additional term and his or her election is approved at a shareholders
meeting by the same disinterested majority as required for the election of an external director nominated by a 1% or more shareholder (as
described above).
However, the term of office for external directors for Israeli companies traded on certain foreign stock exchanges, including the NASDAQ Global
Select Market, may be extended indefinitely in increments of additional three-year terms, in each case provided that the audit committee and the board of
directors of the company confirm that, in light of the external director’s expertise and special contribution to the work of the board of directors and its
committees, the reelection for such additional period(s) is beneficial to the company, and provided that the external director is reelected subject to the same
shareholder vote requirements as if elected for an additional term (as described above). Prior to the approval of the reelection of the external director at a
general shareholders meeting, the company’s shareholders must be informed of the term previously served by him or her and of the reasons why the board of
directors and audit committee recommended the extension of his or her term.
An external director may be removed at a special general meeting of shareholders called by the board of directors by the same special majority of the
shareholders required for his or her election if he or she ceases to meet the statutory qualifications for appointment or if he or she violates his or her duty of
loyalty to the company. An external director may also be removed by order of an Israeli court if the court finds that the external director is permanently
unable to exercise his or her duties, has ceased to meet the statutory qualifications for his or her appointment or has violated his or her duty of loyalty to the
company.
If the vacancy of an external directorship causes a company to have fewer than two external directors, the company’s board of directors is required
under the Companies Law to call a special general meeting of the company’s shareholders as soon as possible to appoint such number of new external
directors so that the company thereafter has two external directors.
Additional Provisions
Each committee authorized to exercise any of the powers of the board of directors is required to include at least one external director, except that the
audit committee and compensation committee are required to include all of the external directors, unless the company has elected to avail itself from the
requirement to appoint external directors under the Companies law in accordance with an exemption provided under a recent amendment to regulations
promulgated under the Companies Law (described above).
An external director is entitled to compensation and reimbursement of expenses in accordance with regulations promulgated under the Companies
Law and is otherwise prohibited from receiving any other compensation, directly or indirectly, in connection with serving as a director except for certain
exculpation, indemnification and insurance provided by the company, as specifically allowed by the Companies Law.
Audit Committee
Audit Committee Role
We have an audit committee consisting of Dr. Abraham Havron, Mr. Avraham Berger and Mr. Saadia Ozeri. Dr. Havron serves as the chairman of
the audit committee. Our audit committee generally provides assistance to our board of directors in fulfilling its legal and fiduciary obligations in matters
involving our accounting, auditing, financial reporting and internal control functions by reviewing the services of our independent accountants and reviewing
their reports regarding our accounting practices and systems of internal control over financial reporting. Our audit committee also oversees the audit efforts of
our independent accountants. Our audit committee also acts as a corporate governance compliance committee and oversees the implementation and
amendment, from time to time, of our policies for compliance with Israeli and U.S. securities laws and applicable Nasdaq corporate governance requirements,
including non-use of inside information, reporting requirements, our engagement with related parties, whistleblower complaints and protection, and is also
responsible for the handling of any incidents that may arise in violation of our policies or applicable securities laws. Our board of directors has adopted an
audit committee charter setting forth the specific responsibilities of the audit committee consistent with the Companies Law, and the rules and regulations of
the SEC and the Nasdaq listing requirements, which include:
·
oversight of our independent auditors and recommending the engagement, compensation or termination of engagement of our independent
auditors to the board of directors or shareholders for their approval, as applicable, in accordance with the requirements of the Companies
Law;
103
·
·
·
pre-approval of audit and non-audit services to be provided by the independent auditors;
reviewing and recommending to the board of directors approval of our quarterly and annual financial reports; and
overseeing the implementation and amendment of our policies for compliance with Israeli and U.S. securities laws and applicable Nasdaq
corporate governance requirements.
Additionally, under the Companies Law, the role of the audit committee includes: (1) determining whether there are delinquencies in the business
management practices of our company, including in consultation with our internal auditor or our independent auditor, and making recommendations to the
board of directors to improve such practices; (2) determining whether to approve certain related party transactions (including transactions in which an office
holder has a personal interest) and whether any such transaction is an extraordinary or material transaction under the Companies Law; (3) determining
whether a competitive process must be implemented for the approval of certain transactions with controlling shareholders or in which a controlling
shareholder has a personal interest (whether or not the transaction is an extraordinary transaction), under the supervision of the audit committee or other party
determined by the audit committee and in accordance with standards determined by the audit committee, or whether a different process determined by the
audit committee should be implemented for the approval of such transactions; (4) determining the process for the approval of certain transactions with
controlling shareholders that the audit committee has determined are not extraordinary transactions but are not immaterial transactions; (5) where the board of
directors approves the work plan of the internal auditor, examining such work plan before its submission to the board of directors and proposing amendments
thereto; (6) examining our internal controls and internal auditor’s performance, including whether the internal auditor has sufficient resources and tools to
dispose of its responsibilities; (7) examining the scope of our auditor’s work and compensation and submitting its recommendation with respect thereto to the
corporate body considering the appointment thereof (either the board of directors or the shareholders at the general meeting); and (8) establishing procedures
for the handling of employees’ complaints as to the management of our business and the protection to be provided to such employees.
Companies Law Requirements
Under the Companies Law, the audit committee and compensation committee may not include:
·
·
·
·
the chairman of the board of directors;
any director employed by the company or who provides services to the company on a regular basis (other than as a member of the board of
directors);
a controlling shareholder or a relative of a controlling shareholder (as defined below); and
any director employed by the company’s controlling shareholder or by an entity controlled by the controlling shareholder, a director who
regularly provides services to its controlling shareholder or to an entity controlled by the controlling shareholder, or any director who
derives most of his or her income from the controlling shareholder.
104
Generally, the audit committee must include all of the external directors, a majority of its members must be independent directors, as defined in the
Companies Law, and the chairman of the audit committee must be an external director. However, according to a recent amendment to regulations
promulgated under the Companies Law, an Israeli company whose shares are traded on certain stock exchanges outside Israel (including the Nasdaq Global
Select Market, such as our company) that does not have a controlling shareholder (within the meaning of the Companies Law), such as ourselves, and that
complies with the requirements of the laws of the foreign jurisdiction where the company’s shares are listed, as they apply to domestic issuers, with respect to
the appointment of independent directors and the composition of the audit committee and compensation committee, may elect to exempt itself from the
requirements of Companies Law with respect to (among other things) (i) the composition, quorum and majority requirements at meetings of the audit
committee and (ii) the composition of the compensation committee and meetings of the compensation committee. On January 30, 2017, following analysis of
our qualification to rely on the exemption, our Board of Directors determined to adopt the exemption.
Listing Requirements
Under the Exchange Act and Nasdaq listing requirements, we are required to maintain an audit committee consisting of at least three independent
directors, each of whom is financially literate and one of whom has accounting or related financial management expertise. Our board of directors has
affirmatively determined that each member of our audit committee qualifies as an “independent director” for purposes of serving on an audit committee under
the Exchange Act and Nasdaq listing requirements. Our board of directors has determined that each of Avraham Berger and Saadia Ozeri qualify as an “audit
committee financial expert,” as defined in Item 407(d)(5) of Regulation S-K. All members of our audit committee meet the requirements for financial literacy
under the applicable rules and regulations of the SEC and Nasdaq.
Approval of Transactions with Related Parties
The approval of the audit committee is required for specified actions and transactions with office holders and controlling shareholders and their
relatives, or in which they have a personal interest. See “— Fiduciary Duties and Approval of Specified Related Party Transactions under Israeli Law.” The
audit committee may not approve an action or a transaction with a controlling shareholder or with an office holder unless at the time of approval the majority
of the members of the audit committee are present, of whom a majority must be independent directors, and at least one of whom is an external director,
provided that this requirement shall not apply if a company has elected to avail itself from the requirement to appoint external directors under the Companies
Law in accordance with an exemption provided under a recent amendment to regulations promulgated under the Companies Law (as described above). The
audit committee is also required to determine whether certain related party transactions are “material” or “extraordinary” for purposes of determining which
approvals are required for such transactions.
Compensation Committee
We have a compensation committee consisting of our Dr. Abraham Havron, Mr. Avraham Berger and Mr. Leon Recanati. Dr. Havron serves as the
chairman of the compensation committee. Under Nasdaq listing requirements, we are required to maintain a compensation committee consisting of at least
two members, each of whom is an “independent director” under the Nasdaq listing requirements. Our board of directors has affirmatively determined that
each member of our compensation committee qualifies as an “independent director” under the Nasdaq listing requirements.
Pursuant to the Companies Law, a compensation committee must be comprised of no fewer than three members and, subject to certain exceptions,
must include all of the external directors, whom will form a majority of its members. The Companies Law also provides restrictions as to who may serve on
the compensation committee. See “— Audit Committee — Companies Law Requirements.” However, according to a recent amendment to regulations
promulgated under the Companies Law, an Israeli company whose shares are traded on certain stock exchanges outside Israel (including the Nasdaq Global
Select Market, such as our company) that does not have a controlling shareholder and that complies with the requirements of the laws of the foreign
jurisdiction where the company’s shares are listed, as they apply to domestic issuers, with respect to the appointment of independent directors and the
composition of the audit committee and compensation committee, may elect to exempt itself from the requirements of the Companies Law with respect to
(among other things) the composition and meetings of the compensation committee. On January 30, 2017, following analysis of our qualification to rely on
the exemption, our Board of Directors determined to adopt the exemption.
105
We rely on the “foreign private issuer exemption” with respect to the Nasdaq requirement to have a formal charter for the compensation committee.
Finance Committee
Our finance committee is responsible for considering and making recommendations to the board of directors on the management of our financial
resources and financial strategies and transactions, including our capital structure and corporate finance activities, investment management and financial risk
management (including foreign currency exchange and interest rate exposures). Our finance committee currently consists of Saadia Ozeri, an independent
director under Nasdaq listing requirements, Mr. Jonathan Hahn and Mr. David Tsur, who serves as the chairman of the finance committee.
Internal Auditor
Under the Companies Law, the board of directors of a public company must appoint an internal auditor recommended by the audit committee. The
role of the internal auditor is, among other things, to examine whether a company’s actions comply with applicable law and orderly business procedure.
Under the Companies Law, the internal auditor may not be an “interested party” or an office holder, or a relative of an interested party or of an office holder,
nor may the internal auditor be the company’s independent accounting firm or anyone acting on its behalf. An “interested party” is defined in the Companies
Law as (i) a holder of 5% or more of the company’s outstanding shares or voting rights, (ii) any person or entity (or relative of such person) who has the right
to designate one or more directors or to designate the chief executive officer of the company, or (iii) any person who serves as a director or as a chief
executive officer of the company. Linur Dloomy of Brightman Almagor Zohar & Co. (a member firm of Deloitte Touche Tohmatsu) serves as our internal
auditor.
Fiduciary Duties and Approval of Specified Related Party Transactions under Israeli Law
Fiduciary Duties of Office Holders
The Companies Law codifies the fiduciary duties that office holders owe to a company. Each person listed in the table under “Management —
Executive Officers and Directors” 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 care includes, among other
things, a duty to use reasonable means, in light of the circumstances, 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 such action.
106
The duty of loyalty requires an office holder to act in good faith and for the benefit of the company, and includes, among other things, the duty to:
·
·
·
·
refrain from any act involving a conflict of interests 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 business of 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.
We may approve an act specified above which would otherwise constitute a breach of the office holder’s duty of loyalty, provided that the office
holder acted in good faith, the act or its approval does not harm the company and the office holder discloses his or her personal interest a sufficient amount of
time before the date for discussion of approval of such act.
Disclosure of Personal Interests of an Office Holder and Approval of Transactions
The Companies Law requires that an office holder promptly disclose to the company any “personal interest” that he or she may have, and all related
material information or documents relating to any existing or proposed transaction by the company. A “personal interest” is defined under the Companies
Law as the personal interest of a person in an action or in a transaction of the company, including the personal interest of such person’s relative or of any other
corporate entity in which such person and/or such person’s relative is a director, general manager or chief executive officer, a holder of 5% or more of the
outstanding shares or voting rights, or has the right to appoint at least one director or the general manager, but excluding a personal interest arising solely
from ownership of shares in the company. A personal interest includes the personal interest of a person for whom the office holder holds a voting proxy and
the personal interest of a person voting as a proxy, even when the person granting such proxy has no personal interest. An interested office holder’s disclosure
must be made promptly and no later than the first meeting of the board of directors at which the transaction is considered. An office holder is not obliged to
disclose such information if the personal interest of the office holder derives solely from the personal interest of his or her relative in a transaction that is not
considered as an “extraordinary transaction.”
An “extraordinary transaction” is defined under the Companies Law 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 is likely to have a material impact on the company’s profitability, assets or liabilities.
Under the Companies Law, unless the articles of association of a company provide otherwise, a transaction with an office holder or with a third party
in which the office holder has a personal interest, and which is not an extraordinary transaction, requires approval by the board of directors. Our articles of
association do not provide for a different method of approval. If the transaction considered is an extraordinary transaction with an office holder or third party
in which the office holder has a personal interest, then audit committee approval is required prior to approval by the board of directors. For the approval of
compensation arrangements with directors and officers who are controlling shareholders, see “— Disclosures of Personal Interests of a Controlling
Shareholder and Approval of Certain Transactions,” for the approval of compensation arrangements with directors, see “— Compensation of Directors” and
for the approval of compensation arrangements with office holders who are not directors, see “— Compensation of Executive Officers.”
107
Subject to certain exceptions, any person who has a personal interest in the approval of a transaction that is brought before a meeting of the board of
directors or the audit committee may not be present at the meeting, unless such person is an office holder and invited by the chairman of the board of directors
or of the audit committee, as applicable, to present the matter being considered, and may not vote on the matter. In addition, a director who has a personal
interest in the approval of a transaction may be present at the meeting and vote on the matter if a majority of the directors or members of the audit committee,
as applicable, have a personal interest in the transaction. In such case, shareholder approval is also required.
Disclosure of Personal Interests of a Controlling Shareholder and Approval of Certain Transactions
Pursuant to the Companies Law, the disclosure requirements regarding personal interests that apply to office holders also apply to a controlling
shareholder of a public company. For this purpose, a controlling shareholder is a shareholder who has the ability to direct the activities of a company,
including a shareholder who owns 25% or more of the voting rights if no other shareholder owns 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 one shareholder.
Extraordinary transactions with a controlling shareholder or in which a controlling shareholder has a personal interest, the terms of services provided
by a controlling shareholder or his or her relative, directly or indirectly (including through a corporation controlled by a controlling shareholder), the terms of
employment of a controlling shareholder or his or her relative who is employed by the company and who is not an office holder and the terms of service and
employment, including exculpation, indemnification or insurance, of a controlling shareholder or his or her relative who is an office holder , require the
approval of each of the audit committee or the compensation committee with respect to terms of service and employment by the company as an office holder,
employee or service provider, the board of directors and the shareholders, in that order. In addition, the shareholder approval must fulfill one of the following
requirements:
·
·
at least a majority of the shares held by shareholders who have no personal interest in the transaction and who are present and voting at the
meeting on the matter are voted in favor of approving the transaction, excluding abstentions; or
the shares voted against the transaction by shareholders who have no personal interest in the transaction who are present and voting at the
meeting represent no more than 2% of the voting rights in the company.
Each shareholder voting on the approval of an extraordinary transaction with a controlling shareholder must inform the company prior to voting
whether or not he or she has a personal interest in the approval of the transaction, otherwise, the shareholder is not eligible to vote on the proposal and his or
her vote will not be counted for purposes of the proposal.
Any extraordinary transaction with a controlling shareholder or in which a controlling shareholder has a personal interest with a term of more than
three years requires approval every three years, unless the audit committee determines that the duration of the transaction is reasonable given the
circumstances related thereto.
Pursuant to regulations promulgated under the Companies Law, certain transactions with a controlling shareholder or his or her relative, or with
directors, relating to terms of service or employment, that would otherwise require approval of the shareholders may be exempt from shareholder approval
upon certain determinations of the audit committee and board of directors.
108
Duties of Shareholders
Under the Companies Law, a shareholder has a duty to refrain from abusing his or her power in the company and to act in good faith and in a
customary manner in exercising its rights and performing its obligations to the company and other shareholders, including, among other things, when voting
at meetings of shareholders on the following matters:
·
·
·
·
an amendment to the company’s articles of association;
an increase in the company’s authorized share capital;
a merger; and
the approval of related party transactions and acts of office holders that require shareholder approval.
A shareholder also has a general duty to refrain from discriminating against other shareholders.
In addition, certain shareholders have a duty to act with fairness towards the company. These shareholders include any controlling shareholder, any
shareholder who knows that his or her vote can determine the outcome of a shareholder vote, and any shareholder that, under a company’s articles of
association, has the power to appoint or prevent the appointment of an office holder. The Companies Law does not define the substance of this duty 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.
Approval of Significant Private Placements
Under the Companies Law, a significant private placement of securities requires approval by the board of directors and the shareholders by a simple
majority. A private placement is considered a significant private placement if it will cause a person to become a controlling shareholder or if:
·
·
·
the securities issued amount to 20% or more of the company’s outstanding voting rights before the issuance;
some or all of the consideration is other than cash or listed securities or the transaction is not on market terms; and
the transaction will increase the relative holdings of a shareholder who holds 5% or more of the company’s outstanding share capital or
voting rights or that will cause any person to become, as a result of the issuance, a holder of more than 5% of the company’s outstanding
share capital or voting rights.
Compensation Policy
Under the Companies Law, a public company is required to adopt a compensation policy, which sets forth the terms of service and employment of
office holders, including the grant of any benefit, payment or undertaking to provide payment, any exemption from liability, insurance or indemnification, and
any severance payment or benefit. Such compensation policy must comply with the requirements of the Companies Law. The compensation policy must be
approved at least once every three years, first, by our board of directors, upon recommendation of our compensation committee, and second, by the
shareholders by a special majority.
Our initial compensation policy was approved by our shareholders on January 28, 2014 and amended by our shareholders on June 30, 2015. On
August 30, 2016, our shareholders approved and adopted an amended and restated Compensation Policy, which applies to the following office holders: the
chief executive officer, members of our executive management, each person fulfilling such positions even if his or her title is different, and directors. The
compensation policy has been drafted and approved in accordance with the requirements of the Companies Law and determines (among other things) the
amount of the compensation of our office holders, its components, the maximum values for the various components of compensation, and the method for
determining compensation.
109
Compensation of Directors
We currently pay Avraham Berger, a former external director who currently serves as an ordinary (non-external) director, who is a financial expert
under the Companies Law, an annual fee of NIS 113,686 (approximately $29,601), as well as a fee of NIS 4,371 (approximately $1,138) for each board or
committee meeting attended in person, NIS 2,623 (approximately $683) for each board or committee meeting attended via telephone or videoconference and
NIS 2,185 (approximately $569) for participation by written consent.
We currently pay Dr. Avraham Havron, a former external director who currently serves as an ordinary (non-external) director, an annual fee of NIS
85,352 (approximately $22,223), as well as a fee of NIS 3,285 (approximately $855) for each board or committee meeting attended in person, NIS 1,971
(approximately $513) for each board or committee meeting attended via telephone or videoconference and NIS 1,643 (approximately $428) for participation
by written consent.
We currently pay our other directors (other than the Active Deputy Chairman) an annual fee of NIS 68,908 (approximately $17,942), as well as a fee
of NIS 2,563 (approximately $667) for each board or committee meeting attended in person, NIS 1,538 (approximately $400) for each board or committee
meeting attended via telephone or videoconference and NIS 1,282 (approximately $334) for participation by written consent.
We pay Mr. Tsur, in consideration for his services as Active Deputy Chairman on a half-time basis, in which capacity he has served since July 1,
2015, a monthly gross salary of NIS 45,000 (approximately 11,717), in addition to the cash consideration paid to our Active Deputy Chairman. Mr. Tsur is
entitled to annual leave in accordance with Israeli law and is entitled to use vacation days accumulated in his capacity as Chief Executive Officer during the
term of his service as Active Deputy Chairman. Commencing July 1, 2017, either Mr. Tsur or we may terminate Mr. Tsur’s engagement as Active Deputy
Chairman upon six months prior written notice (payment in lieu of such notice period is permitted at our discretion). In the event of termination of Mr. Tsur’s
engagement as Active Deputy Chairman by us other than for cause, Mr. Tsur shall be entitled to six gross monthly salaries, as well as additional deposits into
his manager’s insurance policy.
From time to time, we grant options to directors. Most recently, in accordance with our shareholders’ approval, on August 30, 2016, we granted each
of our directors (other than Mr. Leon Recanti and Mr. David Tsur) options to purchase 5,000 ordinary shares and we granted Mr. Leon Recanti and Mr. David
Tsur options to purchase 10,000 ordinary shares. The options shall be exercisable on a cashless basis based on an exercise price of NIS 15.20 (approximately
$3.92) per share (equal to the higher of (i) the average closing price of our ordinary shares on the TASE during the 30 trading days immediately prior to the
approval of the option grant by our board of directors plus 5%; and (ii) the closing price of our ordinary shares on the TASE on the date of the approval of the
option grant by our board of directors). The options will vest over a period of four years in 13 installments: 25% of the options will vest on the first
anniversary of the grant date and 6.25% of the remaining options will vest at the end of each quarter thereafter. The options will be exercisable for 6.5 years
following the date of grant and all unexercised options will expire immediately thereafter. The options were granted under the 2011 Israeli Share Option Plan.
The foregoing terms are in accordance with our compensation policy, as amended by our shareholders at the general meeting held on August 30, 2016.
Except with respect to Mr. David Tsur, our Active Deputy Chairman, as described above, there are no arrangements or understandings between us,
on the one hand, and any of our directors, on the other hand, providing for benefits upon termination of their service as directors of our company.
110
To our knowledge, there are no agreements and arrangements between any director and any third party relating to compensation or other payment in
connection with their candidacy or service on our Board of Directors.
Under the Companies Law, the compensation (including insurance, indemnification, exculpation and compensation) of our directors requires the
approval of our compensation committee, the subsequent approval of the board of directors and, unless exempted under the regulations promulgated under the
Companies Law, the approval of the shareholders at a general meeting. The approval of the compensation committee and board of directors must be in
accordance with the compensation policy. In special circumstances, the compensation committee and board of directors may approve a compensation
arrangement that is inconsistent with the company’s compensation policy, provided that they have considered the same considerations and matters required
for the approval of a compensation policy in accordance with the Companies Law, in which case the approval of the company’s shareholders requires that
either:
·
·
a majority of the shares held by shareholders who are not controlling shareholders and shareholders who do not have a personal interest in
such matter and who are present and voting at the meeting, are voted in favor of approving the compensation package, excluding
abstentions; or
the total number of shares voted by non-controlling shareholders and shareholders who do not have a personal interest in such matter that
are voted against the compensation package does not exceed 2% of the aggregate voting rights in the company.
Where the director is also a controlling shareholder, the requirements for approval of transactions with controlling shareholders apply, as described
above under “— Disclosure of Personal Interests of a Controlling Shareholder and Approval of Certain Transactions.”
Compensation of Executive Officers
The aggregate compensation incurred by us in relation to our executive officers and our Active Deputy Chairman of the Board of Directors,
including share-based compensation, for the year ended December 31, 2016, was approximately $3.1million. This amount includes approximately $119,336
set aside or accrued to provide pension, severance, retirement or similar benefits or expenses, but does not include business travel, professional and business
association dues and expenses reimbursed to executive officers, and other benefits commonly reimbursed or paid by companies in Israel.
111
The following table presents information regarding compensation accrued in our financial statements for our five most highly compensated office
holders, namely our Chief Executive Officer, Deputy Chief Executive Officer and Chief Financial Officer, Active Deputy Chairman of the Board of Directors,
Vice President Medical Director and Vice President Research and Development, as of December 31, 2016.
Name and Position
Salary
Bonus(1)
Value of
Options
Granted(2)
(in thousands)
Other(3)
Total
Amir London
Chief Executive Officer
Gil Efron
Deputy Chief Executive Officer and Chief Financial Officer
David Tsur
Active Deputy Chairman of the Board of Directors
Eran Schenker
Vice President Medical Director
Liliana Bar
Vice President R&D
$
$
$
$
$
269 $
140 $
260 $
103 $
97 $
46 $
169 $
188 $
186 $
- $
149 $
36 $
34 $
25 $
20 $
20 $
20 $
28 $
16 $
17 $
526
429
346
265
257
(1)
(2)
The annual bonus is subject to the fulfillment of certain targets determined for each year by the board of directors (for our Chief Executive Officer)
and by our Chief Executive Officer (for our other executive officers).
The value of options is the expense recorded in our financial statements for the period ended December 31, 2016 with respect to all options granted
to such executive officer.
(3)
Cost of use of company car.
Compensation of Officers Other than the Chief Executive Officer
Pursuant to the Companies Law, the compensation (including insurance, indemnification and exculpation) of a public company’s office holders
(other than directors, which is described above, and the chief executive officer, which is described below) generally requires approval first by the
compensation committee and second by the company’s board of directors, according to the company’s compensation policy. In special circumstances the
compensation committee and board of directors may approve a compensation arrangement that is inconsistent with the company’s compensation policy,
provided that they have considered the same considerations and matters required for the approval of a compensation policy in accordance with the Companies
Law and such arrangement must be approved by the company’s shareholders provided that either:
·
·
a majority of the shares held by shareholders who are not controlling shareholders and shareholders who do not have a personal interest in
such matter and who are present and voting at the meeting, are voted in favor of approving the compensation package, excluding
abstentions; or
the total number of shares of non-controlling shareholders and shareholders who do not have a personal interest in such matter voting
against the compensation package does not exceed 2% of the aggregate voting rights in the company.
However, if the shareholders of the company do not approve a compensation arrangement with an executive officer that is inconsistent with the
company’s compensation policy, the compensation committee and board of directors may, in special circumstances, override the shareholders’ decision,
subject to certain conditions.
An amendment to an existing arrangement with an office holder (other than the chief executive officer) who is not a director requires only the
approval of the compensation committee, if the compensation committee determines that the amendment is not material in comparison to the existing
arrangement. However, according to a recent amendment to regulations promulgated under the Companies Law, an amendment to an existing arrangement
with an office holder (who is not a director) who is subordinate to the chief executive officer shall not require the approval of the compensation committee, if
(i) the amendment is approved by the chief executive officer and the company’s compensation policy determines that a non-material amendment to the terms
of service of an office holder (other than the chief executive officer) will be approved by the chief executive officer and (ii) the engagement terms are
consistent with the company’s compensation policy.
112
Compensation of Chief Executive Officer
The compensation (including insurance, indemnification and exculpation) of a public company’s chief executive officer generally requires the
approval of first, the company’s compensation committee; second, the company’s board of directors; and third (except for limited exceptions), a majority of
the company’s shareholders provided that either:
·
·
a majority of the shares held by shareholders who are not controlling shareholders and shareholders who do not have a personal interest in
such matter and who are present and voting at the meeting are voted in favor of approving the compensation package, excluding
abstentions; or
the total number of shares of non-controlling shareholders and shareholders who do not have a personal interest in such matter voting
against the compensation package does not exceed 2% of the aggregate voting rights in the company.
Under the Companies Law, if the shareholders of the company do not approve the compensation arrangement with the chief executive officer, the
compensation committee and board of directors may override the shareholders’ decision, subject to certain conditions. The compensation committee and
board of directors approval should be in accordance with the company’s compensation policy; however, in special circumstances, they may approve
compensation terms of a chief executive officer that are inconsistent with such policy provided that they have considered the same considerations and matters
required for the approval of a compensation policy in accordance with the Companies Law and that shareholder approval was obtained by the Special
Approval for Compensation.
Under certain circumstances, the compensation committee and board of directors may waive the shareholder approval requirement in respect of the
compensation arrangements with a candidate for chief executive officer if they determine that the compensation arrangements are consistent with the
company’s stated compensation policy.
However, an amendment to an existing arrangement with an executive officer (who is not a director) requires only the approval of the compensation
committee, if the compensation committee determines that the amendment is not material in comparison to the existing arrangement. Furthermore, according
to a recent amendment to regulations promulgated under the Companies Law, the renewal or extension of an existing arrangement with a chief executive
officer shall not require shareholder approval if (i) the renewal or extension is not beneficial to the chief executive officer as compared to the prior
arrangement or there is no substantial change in the terms and other relevant circumstances; and (ii) the engagement terms are consistent with the company’s
compensation policy and the prior arrangement was approved by the shareholders by the Special Approval for Compensation.
Where the office holder is also a controlling shareholder, the requirements for approval of transactions with controlling shareholders apply, as
described above under “— Disclosure of Personal Interests of a Controlling Shareholders and Approval of Certain Transactions.”
Exculpation, Insurance and Indemnification of Office Holders
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 duty of
care, but only if a provision authorizing such exculpation is included in the company’s articles of association. Our articles of association include such a
provision. However, we may not exculpate an office holder for an action or transaction in which a controlling shareholder or any other office holder
(including an office holder who is not the office holder we have undertaken to exculpate) has a personal interest (within the meaning of the Companies Law).
We may also not exculpate in advance a director from liability arising out of a prohibited dividend or distribution to shareholders.
113
Under the Companies Law, a company may indemnify an office holder for the following liabilities, payments and expenses incurred for acts
performed by him or her, as an office holder, either pursuant to an undertaking given by the company in advance of the act or following the act, provided its
articles of association authorize such indemnification:
·
·
·
a monetary liability 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. Such undertaking shall detail the foreseen events and amount or criteria mentioned above;
reasonable litigation expenses, including reasonable attorneys’ fees, incurred by the office holder (1) 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 (mens rea); and (2) in connection with a
monetary sanction; 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 (mens rea).
In addition, 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, to the extent provided in the company’s articles of association:
·
·
·
a breach of a duty of loyalty to the company, provided that the office holder acted in good faith and had a reasonable basis to believe that
the act would not harm the company;
a breach of duty of care to the company or to a third party, to the extent such a breach arises out of the negligent conduct of the office
holder; and
a monetary liability imposed on the office holder in favor of a third party.
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 to the extent that
the office holder acted in good faith and had a reasonable basis to believe that the act would not harm 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 illegal personal benefit; or
a fine or penalty levied against the office holder.
114
For the approval of exculpation, indemnification and insurance of office holders who are directors, see “— Compensation of Directors,” for the
approval of exculpation, indemnification and insurance of office holders who are not directors, see “—Compensation of Executive Officers” and for the
approval of exculpation, indemnification and insurance of office holders who are controlling shareholders, see “— Fiduciary Duties and Approval of
Specified Related Party Transactions under Israeli Law — Disclosure of Personal Interests of a Controlling Shareholder and Approval of Certain
Transactions.”
Our articles of association permit us to exculpate, indemnify and insure our office holders to the fullest extent permitted under the Companies Law
(other than indemnification for litigation expenses in connection with a monetary sanction); provided that we may not exculpate an office holder for an action
or transaction in which a controlling shareholder or any other office holder (including an office holder who is not the office holder we have undertaken to
exculpate) has a personal interest (within the meaning of the Companies Law).
We have entered into indemnification and exculpation agreements with each of our current office holders exculpating them from a breach of their
duty of care to us to the fullest extent permitted by the Companies Law (provided that we may not exculpate an office holder for an action or transaction in
which a controlling shareholder or any other office holder (including an office holder who is not the office holder we have undertaken to exculpate) has a
personal interest (within the meaning of the Companies Law)) and undertaking to indemnify them to the fullest extent permitted by the Companies Law (other
than indemnification for litigation expenses in connection with a monetary sanction), to the extent that these liabilities are not covered by insurance. This
indemnification is limited to events determined as foreseeable by our board of directors based on our activities, as set forth in the indemnification agreements.
Under such agreements, the maximum aggregate amount of indemnification that we may pay to all of our office holders together is (i) for office holders who
joined our company before May 31, 2013, the greater of 30% of the shareholders equity according to our most recent financial statements (audited or
reviewed) at the time of payment and NIS 20 million, and (ii) for office holders who joined our company after May 31, 2013, 25% of the shareholders equity
according to our most recent financial statements (audited or reviewed) at the time of payment.
We are not aware of any pending or threatened litigation or proceeding involving any of our office holders as to which indemnification is being
sought, nor are we aware of any pending or threatened litigation that may result in claims for indemnification by any office holder.
Agreements with Five Most Highly Compensated Senior Office Holders
We have entered into agreements with each of our five most highly compensated office holders, listed below. The terms of employment or service of
such office holders are directed by our compensation policy. See “— Compensation Policy.” Each of these agreements contains provisions regarding non-
competition, confidentiality of information and assignment of inventions. The non-competition provision applies for a period that is generally 12 months
following termination of employment. The enforceability of covenants not to compete in Israel and the United States is subject to limitations. Except for
David Tsur, our Active Deputy Chairman, such office holders are entitled to an annual bonus subject to the fulfillment of certain targets determined for each
year by the board of directors (for our chief executive officer) and by our chief executive officer (for the other office holders). In addition, all such executive
officers are entitled to a company car, as well as sick pay, convalescence pay, manager’s insurance and a study fund (“keren hishtalmut”), all in accordance
with Israeli law, and annual leave.
Amir London, Chief Executive Officer. Mr. London has served as our Chief Executive Officer since July 2015. Prior to that and effective as of
December 1, 2013, Mr. London served as our Vice President, Business Development. Mr. London’s engagement terms as our Chief Executive Officer have
been approved by our Compensation Committee, the Board of Directors and our shareholders. According to the terms of the agreement, either party may
terminate the agreement at any time upon three months' prior written notice to the other party, and we may terminate the agreement immediately for cause in
accordance with Israeli law.
115
Gil Efron, Deputy Chief Executive Officer and Chief Financial Officer. Mr. Efron has served as our Deputy Chief Executive since July 2015, along
with his position of our Chief Financial Officer in which he has served since September 2011. Effective as of September 1, 2011, we entered into an
employment agreement with Gil Efron with respect to his employment as our chief financial officer. Either party may terminate the agreement at any time
upon three months' prior written notice to the other party, and we may terminate the agreement immediately for cause in accordance with Israeli law.
David Tsur, Active Deputy Chairman of the Board of Directors. Mr. Tsur has served as our Active Deputy Chairman of the Board of Directors since
July 2015, on a half-time basis. Prior to that, Mr. Tsur served as our Chief Executive Officer and a director since our inception. Mr. Tsur’s engagement terms
as our Active Deputy Chairman have been approved by our Compensation Committee, the Board of Directors and our shareholders. According to the terms of
the agreement, either party may terminate the agreement at any time upon six months' prior written notice to the other party (payment in lieu of such notice
period is permitted at our discretion), and we may terminate the agreement immediately for cause in accordance with Israeli law. In addition, in the event of
termination of Mr. Tsur’s engagement as Active Deputy Chairman by us other than for cause, Mr. Tsur shall be entitled to six gross monthly salaries, as well
as additional deposits into his manager’s insurance policy.
Dr. Eran Schenker, former Vice President Medical Director. Dr. Schenker served as our Vice President Medical Director since March 2015 until
February 2017. Effective as of March 2015, we entered into an employment agreement with Dr. Schenker with respect to his employment as our Vice
President Medical Director. Either party may terminate the agreement at any time upon three months' prior written notice to the other party, and we may
terminate the agreement immediately for cause in accordance with Israeli law.
Dr. Liliana Bar, Vice President, Research and Development. Effective as of June 17, 2012, we entered into an employment agreement with Dr.
Liliana Bar with respect to her employment as our Vice President, Research and Development. Either party may terminate the agreement at any time upon
two months' prior written notice to the other party, and we may terminate the agreement immediately for cause in accordance with Israeli law.
Other Executive Officers
We have entered into written employment agreements with the rest of our executive officers. The terms of employment of our executive office
holders are directed by our compensation policy. See “— Compensation Policy.” Each of these agreements contains provisions regarding non-competition,
confidentiality of information and assignment of inventions. The non-competition provision applies for a period that is generally 12 months following
termination of employment. The enforceability of covenants not to compete in Israel and the United States is subject to limitations. In addition, we are
required to provide up to three months’ notice prior to terminating the employment of such executive officers, other than in the case of a termination for
cause. Each of our employment agreements with such executive officers provides for annual bonuses, which are subject to the fulfillment of certain targets
determined for each year, and the executive officers are also entitled to special bonuses upon the achievement of certain company milestones.
Employees
As of December 31, 2016, we employed 377 employees, including 193 in Operations, 92 in Quality, 19 in Research and Development, 19 in
Regulation, 17 in Business Development, 8 in Medical, 14 in Human Resources and 15 in Finance. As of December 31, 2015, we employed 319 full-time
employees, including 159 in Operations, 79 in Quality, 18 in Research and Development, 17 in Regulation, 14 in Business Development, 8 in Medical, 10 in
Human Resources and 14 in Finance. As of December 31, 2014, we employed 302 full-time employees, including 161 in Operations, 69 in Quality, 18 in
Research and Development, 17 in Regulation, 12 in Business Development, 12 in Human Resources and 13 in Finance. As of December 31, 2016, 2015 and
2014, all of our employees were located in Israel.
116
We signed a collective bargaining agreement with the Histadrut (General Federation of Labor in Israel) and the employees’ committee in December
2013, which will expire in December 2017. Approximately 55% of our employees currently work under the collective bargaining agreement signed in
December 2013. All of them work in our Beit Kama facility. The collective bargaining agreement governs certain aspects of our employee-employer
relations, such as: firing procedures, annual salary raise, eligibility for certain compensation terms and welfare.
Israeli labor laws govern the length of the workday, minimum wages for employees, procedures for hiring and dismissing employees, determination
of severance pay, annual leave, sick days, advance notice of termination of employment, equal opportunity and anti-discrimination laws and other conditions
of employment. Subject to certain exceptions, Israeli law generally requires severance pay upon the retirement, death or dismissal of an employee, and
requires us and our employees to make payments to the National Insurance Institute, which is similar to the U.S. Social Security Administration. Our
employees have defined benefit pension plans that comply with the applicable Israeli legal requirements.
Extension orders issued by the Israeli Ministry of Economy (formerly named the Ministry of Industry, Trade and Labor) apply to us and affect
matters such as cost of living adjustments to payroll, length of working hours and week, recuperation pay, travel expenses, and pension rights.
Share Ownership
The following table sets forth information with respect to the beneficial ownership of our ordinary shares by each of our directors and executive
officers and all of current directors and executive officers as a group.
The percentage of beneficial ownership of our ordinary shares is based on 36,448,182 ordinary shares outstanding as of February 28, 2017.
Beneficial ownership is determined in accordance with the rules of the SEC and generally includes voting power or investment power with respect to
securities. All options exercisable into ordinary shares within 60 days of the date of this Annual Report are deemed to be outstanding and beneficially owned
by the shareholder holding such options for the purpose of computing the number of shares beneficially owned by such shareholder. They are not, however,
deemed to be outstanding and beneficially owned for the purpose of computing the percentage ownership of any other shareholder.
Name
Amir London (1)
Gil Efron (2)
Dr. Liliana Bar (3)
Yael Brenner (4)
Shani Dotan (5)
Eran Nir (6)
Orit Pinchuk (7)
Dr. Eran Schenker (8)
Dr. Naveh Tov (9)
Dr. Ruth Wolfson (10)
Leon Recanati (11)
David Tsur (12)
Dr. Michael Berelowitz
Avraham Berger
Jonathan Hahn (13)
Dr. Abraham Havron (14)
Gwen A. Melincoff
Saadia Ozeri (15)
Directors and Executive Officers as a group (18 persons)
________
*
Less than 1% of our ordinary shares.
117
Number
88,344
142,063
35,000
14,500
26,063
4,166
22,000
40,703
9,730
40,071
4,008,123
1,105,662
-
-
3,084,252
17,992
-
4,255
8,642,922
Percentage
*
*
*
*
*
*
*
*
*
*
10.99%
3.01%
*
*
8.46%
*
-
*
23.22%
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
Includes 6,000 restricted shares and options to purchase 82,344 ordinary shares exercisable within 60 days of the date of this Annual Report, at
a weighted average exercise price of NIS 20.34 (or $5.29) per share, which expire between May 15, 2020 and February 28, 2023. Does not
include unvested options to purchase 83,157 ordinary shares that are not exercisable within 60 days of this Annual Report.
Includes 5,000 restricted shares and options to purchase 137,063 ordinary shares exercisable within 60 days of the date of this Annual Report,
at a weighted average exercise price of NIS 25.35 (or $6.59) per share, which expire between June 13, 2018 and February 28, 2023. Does not
include unvested options to purchase 23,438 ordinary shares that are not exercisable within 60 days of this Annual Report.
Includes options to purchase 35,000 ordinary shares exercisable within 60 days of the date of this Annual Report, at a weighted average exercise
price of NIS 37.84 (or $9.84) per share, which expire between February 28, 2019 and February 28, 2023. Does not include unvested options to
purchase 7,500 ordinary shares that are not exercisable within 60 days of this Annual Report.
Includes 2,000 restricted shares and options to purchase 12,500 ordinary shares exercisable within 60 days of the date of this Annual Report, at a
weighted average exercise price of NIS 17.59 (or $4.58) per share, which expire between October 27, 2021and February 28, 2023. Does not
include unvested options to purchase 18,500 ordinary shares that are not exercisable within 60 days of this Annual Report.
Includes 2,000 restricted shares and options to purchase 24,063 ordinary shares exercisable within 60 days of the date of this Annual Report, at
an exercise price of NIS 29.67 (or $7.72) per share, which expire between October 27, 2021and February 28, 2023. Does not include unvested
options to purchase 14,438 ordinary shares that are not exercisable within 60 days of this Annual Report.
Subject to 4,166 restricted shares. Does not include unvested options to purchase 12,500 ordinary shares that are not exercisable within 60 days
of this Annual Report.
Includes 2,000 restricted shares and options to purchase 20,000 ordinary shares exercisable within 60 days of the date of this Annual Report, at
an exercise price of NIS 27.15 (or $7.06) per share, which expire between July 13, 2020 and February 28, 2023. Does not include unvested
options to purchase 13,500 ordinary shares that are not exercisable within 60 days of this Annual Report
Includes 2,000 restricted shares and options to purchase 12,500 ordinary shares exercisable within 60 days of the date of this Annual Report, at
an exercise price of NIS 17.59 (or $4.58) per share, which expire between July 13, 2020 and February 28, 2023. Does not include unvested
options to purchase 18,500 ordinary shares that are not exercisable within 60 days of this Annual Report.
Includes 4,167 restricted shares and includes options to purchase 5,563 ordinary shares exercisable within 60 days of the date of this Annual
Report, at an exercise price of NIS 18.18 (or $4.73) per share, which expire between May 14, 2020 and February 28, 2023. Does not include
unvested options to purchase 14,938 ordinary shares that are not exercisable within 60 days of this Annual Report.
(10)
Includes options to purchase 37,344 ordinary shares exercisable within 60 days of the date of this Annual Report, at an exercise price of NIS
44.47 (or $11.57) per share, which expire between May 14, 2020 and February 28, 2023. Does not include unvested options to purchase 7,657
ordinary shares that are not exercisable within 60 days of this Annual Report.
118
(11)
(12)
(13)
(14)
Mr. Recanati holds 677,479 ordinary shares directly and 3,295,644 ordinary shares indirectly through Gov. Gov is wholly-owned by Mr.
Recanati, the Chairman of our board of directors, who exercises sole voting and investment power over the shares held by Gov. In addition
includes options to purchase 35,000 ordinary shares exercisable within 60 days of the date of this Annual Report, at an exercise price of NIS
31.30 (or $8.14) per share, which expire between May 14, 2020 and February 28, 2023. Does not include unvested options to purchase 20,000
ordinary shares that are not exercisable within 60 days of this Annual Report.
Includes options to purchase 334,375 ordinary shares exercisable within 60 days of the date of this Annual Report, at a weighted average
exercise price of NIS 45.10 (or $11.73) per share, which expire between June 8, 2018 and February 28, 2023. Does not include unvested options
to purchase 47,500 ordinary shares that are not exercisable within 60 days of this Annual Report.
Mr. Jonathan Hahn directly holds 313,841 ordinary shares and options to purchase 18,750 ordinary shares exercisable within 60 days of this
Annual Report, at an exercise price of NIS 29.9 (or $7.78) per share, which expire between May 14, 2020 and February 28, 2023. In addition,
we were informed that Mr. Hahn holds 25% of the shares of Sinara Financing S.A. (“Sinara”), which holds 100% of the shares of Damar
Chemicals Inc. (“Damar”), which directly holds 2,751,661 ordinary shares. We were informed that additional 50% of the shares of Sinara are
held by Mr. Hahn’s siblings, who also directly hold an aggregate 576,649 ordinary shares. Does not include unvested options to purchase 11,250
ordinary shares that are not exercisable within 60 days of this Annual Report.
Includes 1,742 shares owned by Operon Consultants Ltd., which is wholly-owned by Dr. Havron. Dr. Havron also holds options to purchase
16,250 ordinary shares exercisable within 60 days of the date of this Annual Report, at an exercise price of NIS 33.09 (or $8.61) per share,
which expire between May 14, 2020 and February 28, 2023. Does not include unvested options to purchase 8,750 ordinary shares that are not
exercisable within 60 days of this Annual Report.
(15)
Does not include unvested options to purchase 5,000 ordinary shares that are not exercisable within 60 days of this Annual Report.
Equity Compensation Plans
In 2005, we adopted our 2005 Israeli Share Option Plan (the “2005 Plan”). We ceased to grant options under the 2005 Plan in 2010 and the 2005
Plan expired on July 5, 2015.
In July 2011, we adopted our 2011 Israeli Share Option Plan and in September 2016, we amended and renamed it as the 2011 Israeli Share Award
Plan (the “2011 Plan”). Under the 2011 Plan, we are authorized to grant options and restricted shares to directors, officers, employees, consultants and
service providers of our company and subsidiaries. The 2011 Plan is intended to enhance our ability to attract and retain desirable individuals by increasing
their ownership interests in us. The 2011 Plan, which is effective until July 23, 2021, is designed to reflect the provisions of the Israeli Tax Ordinance, which
affords certain tax advantages to Israeli employees, officers and directors that are granted options in accordance with its terms. The 2011 Plan may be
administered by our board of directors either directly or upon the recommendation of the compensation committee.
We have granted options to our employees, officers and directors under the 2011 Plan. Each option granted under the 2011 Plan entitles the grantee
to purchase one of our ordinary shares. In general, the exercise price of each option granted under the 2011 Plan was equal to the average closing price of our
ordinary shares on the TASE during the 30-TASE trading days immediately prior to board approval of the grant of such options. The exercise price of some of
the options granted under the 2011 Plan is equal to the closing price of our ordinary shares on the TASE during the 30-TASE trading days immediately prior
to board approval of the grant of such options plus 5%. Options granted under the 2011 Plan may be exercised for cash, or at the discretion of our board of
directors, by way of cashless exercise. In the event of a cashless exercise, the grantee is not required to pay the exercise price when exercising the options and
instead, receives upon exercise such number of ordinary shares with a total fair market value equal to the difference between the total fair market value of the
ordinary shares underlying the exercised options and the total purchase price for such options.
119
The options granted under the 2011 Plan generally vest during a four-year period following the date of the grant in 13 installments: 25% of the
options vest on the first anniversary of the grant date and 6.25% of the remaining options vest at the end of each quarter thereafter. Options granted under the
2011 Plan are generally exercisable for 6.5 years following the date of grant and all unexercised options will expire immediately thereafter. Options that have
vested prior to the end of a grantee’s employment or services agreement with us may generally be exercised within 90 days from the end of such grantee’s
employment or services with us, unless such relationship was terminated for cause. Options which are not exercised during such 90-day period expire at the
end of the period, unless all of the 90-day period is a black-out period during which time the options may not be exercised, in which case our chief executive
officer or chief financial officer is entitled to extend the exercise period for specified periods. Options that have not vested on the date of the end of a
grantee’s employment or services agreement with us, and, in the event of termination of employment or services for cause, all unexercised options (whether
vested or not), expire immediately upon termination.
Beginning in 2016, we have also granted restricted shares to our officers. The restricted shares awarded under the 2011 Plan will vest over a period
of four years in 13 installments: 25% of the restricted shares will vest on the first anniversary of the grant date and 6.25% of the remaining restricted shares
will vest at the end of each quarter thereafter. The restricted shares will be exercisable for 6.5 years following the date of grant and all unexercised restricted
shares will expire immediately thereafter.
In the event of certain transactions, such as our being acquired, or a merger or reorganization or a sale of all or substantially all of our assets, awards
then outstanding under the 2011 Plan shall be assumed or substituted for shares or other securities of the surviving or acquiring entity as were distributed to
our shareholders in connection and the transaction, subject to an appropriate adjustment to the exercise price (if applicable). The board or the compensation
committee may determine that the terms of certain awards under the 2011 Plan include a provision that their vesting schedules will be accelerated such that
they will be exercisable prior to the closing of such a transaction, if the awards are not assumed or substituted by the successor company.
Options and restricted shares granted to our employees under the 2011 Plan were granted pursuant to the provisions of Section 102 of the Israeli
Income Tax Ordinance, under the capital gains alternative. In order to comply with the capital gains alternative, all such options and restricted shares under
the 2011 Plan are granted or issued to a trustee and are to be held by the trustee for at least two years from the date of grant. Under the capital gains
alternative, we are not allowed an Israeli tax deduction for the grant of the options or issuance of the shares issuable thereunder.
On April 27, 2015, our board of directors approved an increase in the number of ordinary shares reserved for issuance under the 2011 Plan by
500,000 ordinary shares and on May 8, 2016, our board of directors approved a further increase in the number of ordinary shares reserved for issuance under
the 2011 Plan by 200,000 shares. As of December 31, 2016, an aggregate of 76,718 ordinary shares were reserved for future issuance under the 2011 Plan
(subject to certain adjustments specified in the 2011 Plan), and options to purchase 2,487,236 ordinary shares were outstanding under the 2011 Plan and
27,333 restricted shares were outstanding under the 2011 Plan. Any ordinary shares underlying options that expire prior to exercise or restricted shares that
are forfeited under the 2011 Plan will become again available for issuance under the 2011 Plan.
Item 7. Major Shareholders and Related Party Transactions
Major Shareholders
The following table sets forth information with respect to the beneficial ownership of our ordinary shares by each person known to us to own
beneficially more than 5% of our ordinary shares.
120
The percentage of beneficial ownership of our ordinary shares is based on 36,448,182 ordinary shares outstanding as of February 28, 2017.
Beneficial ownership is determined in accordance with the rules of the SEC and generally includes voting power or investment power with respect to
securities. All options exercisable into ordinary shares within 60 days of the date of this Annual Report are deemed to be outstanding and beneficially owned
by the shareholder holding such options for the purpose of computing the number of shares beneficially owned by such shareholder. They are not, however,
deemed to be outstanding and beneficially owned for the purpose of computing the percentage ownership of any other shareholder.
Except as described in the footnotes below, we believe each shareholder has voting and investment power with respect to the ordinary shares
indicated in the table as beneficially owned.
Name
Hahn Family (1)
Leon Recanati (2)
D.S Apex Holdings group (3)
The Phoenix Holding Ltd. (4)
Yelin Lepidot (5)
_________________
Number
Percentage
3,660,901
4,008,123
2,733,731
2,978,752
2,708,910
10.04%
10.99%
7.50%
8.17%
7.43%
(1) Mr. Jonathan Hahn directly holds 313,841 ordinary shares and options to purchase 18,750 ordinary shares exercisable within 60 days of this Annual
Report, at an exercise price of NIS 29.9 (or $7.78) per share, which expire between May 14, 2020 and February 28, 2023. In addition, we were informed
that Mr. Hahn holds 25% of the shares of Sinara Financing S.A. (“Sinara”), which holds 100% of the shares of Damar Chemicals Inc. (“Damar”), which
directly holds 2,751,661 ordinary shares. We were informed that an additional 50% of the shares of Sinara are held by Mr. Hahn’s siblings, who also
directly hold an aggregate of 576,649 ordinary shares. Does not include unvested options to purchase 11,250 ordinary shares directly held by Mr.
Jonathan Hahn that are not exercisable within 60 days of this Annual Report.
(2) Mr. Recanati holds 677,479 ordinary shares directly and 3,295,644 ordinary shares indirectly through Gov. Gov is wholly-owned by Mr. Recanati, the
Chairman of our board of directors, who exercises sole voting and investment power over the shares held by Gov. In addition, Mr. Recanati holds options
to purchase 35,000 ordinary shares exercisable within 60 days of this Annual Report at an exercise price of NIS 31.30 (or $8.14) per share, which expire
between May 14, 2020 and February 28, 2023. Does not include unvested options to purchase 20,000 ordinary shares that are not exercisable within 60
days of this Annual Report.
(3) Based solely upon, and qualified in its entirety with reference to, a notice dated January 10, 2017 submitted to our company. To the best of our
knowledge, BRM Group Ltd. and Mr. Zvi Stepak are the joint controlling shareholders of DS Apex Holdings Ltd. (“DS Apex”). BRM Group Ltd. is a
private investment company beneficially owned by Messrs. Eli Barkat, Nir Barkat, and Yuval Rakavy.
(4) Based solely upon, and qualified in its entirety with reference to, a notice dated January 2, 2017 submitted to our company. To the best of our
knowledge, the shares are beneficially owned by various direct or indirect, majority or wholly-owned subsidiaries of the Phoenix Holding Ltd. The
Phoenix Holding Ltd. is a majority-owned subsidiary of Delek Group Ltd. The majority of Delek Group Ltd.’s outstanding shares and voting rights are
owned, directly and indirectly, by Itshak Sharon (Tshuva) through private companies wholly-owned by him, and the remainder is held by the public.
Each of the reporting persons disclaims beneficial ownership of the reported shares in excess of their actual pecuniary interest therein.
(5) Based solely upon, and qualified in its entirety with reference to, Amendment No. 2 to Schedule 13G, filed on February 8, 2017. According to the
Schedule 13G/A, 431,886 ordinary shares are beneficially owned by mutual funds managed by Yelin Lapidot Provident Funds Management Ltd. and
277,024 ordinary shares are beneficially owned by provident funds managed by Yelin Lapidot Mutual Funds Management Ltd, each a wholly-owned
subsidiary of Yelin Lapidot Holdings Management Ltd. (“Yelin Lapidot Holdings”). Messrs. Dov Yelin and Yair Lapidot each own 24.38% of the share
capital and 25% of the voting rights of Yelin Lapidot Holdings, and are responsible for the day-to-day management of Yelin Lapidot Holdings. Each of
the reporting persons disclaims beneficial ownership of the reported shares. To our knowledge, based on information provided to us by our transfer agent
in the United States, as of February 24, 2017, we had one shareholder of record who was registered with an address in the United States, holding
approximately 6,420,031 of our outstanding ordinary shares. Such number is not representative of the portion of our shares held in the United States nor
is it representative of the number of beneficial holders residing in the United States, since such ordinary shares were held of record by one U.S. nominee
company, CEDE & Co.
To our knowledge, the only significant changes in the percentage ownership held by our major shareholders during the past three years have been the
following: From January 1, 2014 to the date of this Annual Report, the ownership percentage of Hahn family decreased by 3.33% from 13.37% to 10.04%.
Mr. Leon Recanati's ownership percentage increased by 1.47% from 9.52% to 10.99% during such period. The Phoenix Holdings Group ownership
percentage decreased by 0.49% from 8.66% to 8.17% during such period. The Yelin Lepidot group’s ownership percentage increased from less than 5% to
7.43% during such period. The DS Apex group’s ownership percentage increased by 0.8% from 7.01% to 7.50% during such period.
121
To our knowledge, the only significant changes in the percentage ownership held by our major shareholders during the past three years have been the
following. From January 1, 2014 to December 31, 2016, the ownership percentage of Hahn family decreased by 3.37% from 13.37% to 10.00%. Mr. Leon
Recanati's ownership percentage increased by 1.50% from 9.52% to 10.98%. The Phoenix Holdings Group ownership percentage decreased by 0.50% from
8.66% to 8.16%. The Yelin Lepidot group’s ownership percentage increased from less than 5% to 7.33% during such period. The DS Apex group’s ownership
percentage increased by 0.8% from 6.74% to 7.49%.
None of our shareholders has different voting rights from other shareholders. We are not aware of any arrangement that may, at a subsequent date,
result in a change of control of our company.
Related Party Transactions
Tuteur S.A.C.I.F.I.A.
In August 2011, we entered into a distribution agreement with Tuteur that amends and restates a distribution agreement we entered into in November
2001. Tuteur is a company organized under the laws of Argentina and was formerly controlled by Mr. Ralf Hahn, the former Chairman of our board of
directors. Mr. Jonathan Hahn, our director, is currently the President and a director of Tuteur. The amendment to the agreement was made as an arm’s length
transaction, in connection with the expected completion of Glassia’s registration in Argentina and the commencement of its marketing in Argentina. On
August 19, 2014, we entered into an amendment to the distribution agreement in order to add KamRho(D) as an additional product to be distributed by Tuteur
and expanded the territories to include Bolivia. Pursuant to the distribution agreement, as amended, Tuteur serves as the exclusive distributor of Glassia and
KamRho(D), in Argentina, Paraguay and Bolivia. Tuteur is obligated under the agreement to commence marketing, sales and distribution of the products
within each country covered by the agreement within two months after the grant of regulatory approval in each such country. Commencing the second year
following the date that Tuteur commences sales of the product in Argentina, Tuteur will be obligated to purchase minimum amounts of products in the
territories, in the total annual amount of not less than $1,006,800. In 2016, Tuteur was awarded a one-time success bonus in the amount of $100,000 based on
achieving certain sales targets in 2015. In 2016, our board of directors approved the payment to Tuteur of a non-material amount to be used for purpose of
marketing activities aimed at locating new AATD patients and increasing the overall number of AATD patients treated with Glassia in Argentina. Such
amount will be paid in several installments, according to the Tuteur's actual expenses for such purpose, until the end of September 2019.
Tuteur shall cease to have exclusivity if it fails to comply with the minimum purchase requirement in each of the counties, on a country by country
basis. Pursuant to the agreement, Tuteur is obligated to obtain the relevant regulatory approvals and reimbursement in each of the countries within 18 months
of receiving the required registration documents from us. Glassia was approved by regulators in Argentina in July 2012. Glassia has not yet been submitted
and approved by regulators in Paraguay or Bolivia. The parties have agreed to separately negotiate the allocation of any costs relating to clinical trials or
studies required by relevant regulatory authorities in the applicable territory. We retain ownership of all relevant intellectual property.
The distribution agreement expires on December 31, 2019, provided that with respect to distribution in Bolivia, the agreement expires on the fifth
anniversary after the date that Tuteur commences sales of a product in Bolivia. We are entitled to terminate the agreement upon 30 days’ notice if a third party
acquires more than 50% of the common stock or voting rights of Tuteur or Tuteur fails to receive the relevant regulatory approvals within the required time.
Either party can terminate the agreement upon bankruptcy of the other party, a material breach of the agreement by the other party after a 30-day cure period
and non-performance as a result of force majeure for more than two months. Our board of directors and audit committee approved the agreement and the
amendments thereto and determined that each was not an “extraordinary transaction” within the meaning of the Companies Law.
122
Khairi S.A.
On June 4, 2016, we entered into a distribution agreement with Khairi S.A. (“Khairi”) for the distribution by Khairi of Glassia and KamRho(D) in
Uruguay. Distribution rights for Glassia and KamRho(D) in Uruguay were originally granted to Tuteur; however, as Tuteur is not incorporated in Uruguay,
according to local regulatory requirements its ability to distribute pharmaceutical products in Uruguay is limited, while Khairi, which is located in the free
trading zone in Uruguay, is not so limited. The distribution agreement with Khairi is an arm’s length transaction, based on the terms of the distribution
agreement previously signed with Tuteur. Mr. Leon Recanati (the Chairman of our board of directors), Mr. Jonathan Hahn (a director) and his siblings and Mr.
Reuven Behar (who served as a director from April 2013 until May 2016) are shareholders of Khairi. Mr. Reuven Behar serves as the chairman of the board
of directors of Khairi. In 2015 and 2016, Khari distributed our AAT product in Cuba in a non-material amount. Our audit committee and board of directors
approved the engagement of Khairi in accordance with the Companies Law.
Fischer Behar Chen Well Orion & Co.
Since our initial public offering on the Tel Aviv Stock Exchange in 2005, we have retained the services of Fischer Behar Chen Well Orion & Co as
our Israeli counsel. Mr. Reuven Behar, who served as a director from April 2013 until May 2016, and since May 2016 attends board meetings as an observer,
is a partner at Fischer Behar Chen Well Orion & Co.
Indemnification Agreements
We have entered into indemnification and exculpation agreements with each of our current officers and directors, exculpating them from a breach of
their duty of care to us to the fullest extent permitted by the Companies Law (provided that we may not exculpate an office holder for an action or transaction
in which a controlling shareholder or any other office holder (including an office holder who is not the office holder we have undertaken to exculpate) has a
personal interest (within the meaning of the Companies Law)) and undertaking to indemnify them to the fullest extent permitted by the Companies Law (other
than indemnification for litigation expenses in connection with a monetary sanction), including with respect to liabilities resulting from our initial public
offering in the United States, to the extent such liabilities are not covered by insurance. See “Item 6. Directors, Senior Management and Employees —
Exculpation, Insurance and Indemnification of Office Holders.”
Employment Agreements
We have entered into employment agreements with our executive officers and key employees, which are terminable by either party for any reason.
The employment agreements contain standard provisions, including assignment of invention provisions and non-competition clauses. See “Item 6. Directors,
Senior Management and Employees — Employment Agreements with Executive Officers.”
Shareholders’ Agreement
Under a shareholders' agreement entered into on March 4, 2013, the Recanati Group, on the one hand, and the Damar Group, on the other hand, have
each agreed to vote the ordinary shares beneficially owned by them in favor of the election of director nominees designated by the other group as follows: (i)
three director nominees, so long as the other group beneficially owns at least 7.5% of our outstanding share capital, (ii) two director nominees, so long as the
other group beneficially owns at least 5.0% (but less than 7.5%) of our outstanding share capital, and (iii) one director nominee, so long as the other group
beneficially owns at least 2.5% (but less than 5.0%) of our outstanding share capital. In addition, to the extent that after the designation of the foregoing
director nominees there are additional director vacancies, each of the Recanati Group and Damar Group have agreed to vote the ordinary shares beneficially
owned by them in favor of such additional director nominees designated by the party who beneficially owns the larger voting rights in our company.
123
Registration Rights Agreement
We entered into a registration rights agreement on April 14, 2013 with Damar, Leon Recanati, Gov and David Tsur (collectively, the “Holders”),
pursuant to which our ordinary shares held by them at such time, or that may be held in the future by the Holders and their respective affiliates, are entitled to
certain registration rights, as described below.
Incidental Registration Rights. The Holders have the right to request the inclusion of their registrable shares in any registration statements filed by
us in the future for the purposes of a public offering, subject to specified exceptions. In the event that the managing underwriter advises that the number of
shares proposed to be included in the offering exceeds the number that can be sold in such offering without adversely affecting such underwriter’s ability to
effect the distribution of such shares or that marketing factors require a limitation of the number of shares to be underwritten, the shares to be included in the
registration statement shall be allocated as follows: first, all shares sought to be registered by us for our own account, and second, all shares sought to be
registered by the Holders, pro-rata to the number of registrable shares owned by each selling Holder, or in such other proportions as shall mutually be agreed
to by all such selling Holders.
In connection with the shelf registration statement on Form F-3 that we filed with the SEC on November 28, 2016 (File No. 333-214816), all
Holders waived their rights to include any of their registrable shares in the shelf registration statement.
Demand Registration. We may be required to effect up to two registrations on Form F-1 at the request of any of the Holders for all or any portion of
their respective registrable shares, provided that each such registration includes shares with an anticipated aggregate offering price of not less than $5.0
million (after deduction of underwriter discounts and commissions, share transfer taxes and expenses of sale) (“Long-Form Registration”). We will not be
required to effect any Long Form Registration requested within 180 days after the effective date of a previously effective registration of securities. In addition,
we will be able to delay effecting a Long Form Registration once in any 12-month period for a period not to exceed 90 consecutive days from the date of the
request if we are engaged or have plans to engage in a registered public offering or are engaged in any other activity which, in the good faith determination of
our board of directors, would be adversely affected by the requested registration.
Form F-3 Registration. We may be required to effect an unlimited number of registrations at the request of any of the Holders on Form F-3 of all or
any portion of their respective registrable shares provided that each such registration includes shares with an anticipated aggregate offering price of not less
than $5.0 million (after deduction of underwriter discounts and commissions, share transfer taxes and expenses of sale) (“Short-Form Registration” and
together with a Long-Form Registration, a “Demand Registration”). We will not be required to effect any Short Form Registration requested (i) within the
nine month period after the effective date of a previously effective Short Form Registration, or (ii) during the period starting 60-days before our good faith
estimate of the filing of any registration statement pertaining to our securities and ending three months following our good faith estimate of the effective date
of any such registration statement (subject to limited exceptions). In addition, we will be able to delay the filing of a Form F-3 registration statement once in
any 12-month period for a period not to exceed 90 consecutive days from the date of the request if, in the good faith determination of our board of directors, it
would not be in our best interest or in the best interest of our shareholders for such registration statement to be filed or effected at such time.
We will be required to give notice of a Demand Registration from any Holder to the other Holders that will be entitled to registration rights and
include their shares in the registration if they so request.
In the event that the managing underwriter advises that marketing factors require a limitation of the number of shares to be included in a Demand
Registration, the shares to be included in the registration statement shall be allocated as follows: first, all shares sought to be registered by the Holders, pro-
rata to the number of registrable shares owned by each selling Holder, or in such other proportions as shall mutually be agreed to by all such selling Holders,
second, all shares sought to be registered by us for our own account, and third, any other shares sought to be registered.
124
Termination. All registration rights granted to each Holder will terminate upon the earlier of (i) five years after our initial public offering in the
United States (i.e., June 5, 2018) and (ii) as to any Holder, such earlier time at which all registrable shares held by such Holder (and any affiliate of the Holder
with whom such Holder must aggregate its sales under Rule 144) can be sold in any 90-day period without registration under the Securities Act.
Expenses. We will pay all expenses in carrying out the above registrations, including the reasonable fees and expenses of one counsel for the
initiating Holders, other than underwriter discounts or commission with respect to Holders’ shares.
Item 8. Financial Information
Consolidated financial statements are set forth under item 18.
Item 9. The Offer and Listing
Our ordinary shares are quoted on the Nasdaq Global Select Market and the TASE under the symbol “KMDA.”
Nasdaq Global Market
The following table sets forth, for the periods indicated since May 30, 2013, which was the date on which our ordinary shares began trading on the
Nasdaq Global Select Market, the high and low sales prices of our ordinary shares as reported by the Nasdaq Global Select Market.
Annual:
2016
2015
2014
2013 (from May 30, 2013)
Quarterly:
Fourth Quarter 2016
Third Quarter 2016
Second Quarter 2016
First Quarter 2016
Fourth Quarter 2015
Third Quarter 2015
Second Quarter 2015
First Quarter 2015
Most Recent Six Months:
February 2017 (through February 27, 2017)
January 2017
December 2016
November 2016
October 2016
September 2016
Price Per Ordinary Share
High
Low
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
6.29 $
5.15 $
17.95 $
17.07 $
6.29 $
5.34 $
4.19 $
4.44 $
4.47 $
4.12 $
5.15 $
4.83 $
7.25 $
6.25 $
5.90 $
5.85 $
6.29 $
5.26 $
3.26
3.09
3.02
9.60
5.05
3.63
3.60
3.26
3.24
3.09
3.75
3.79
6.28
5.50
5.25
5.15
5.05
4.62
On February 27, 2017, the last reported sale price of our ordinary shares on the Nasdaq Global Select Market was $6.98 per share.
125
Tel Aviv Stock Exchange
The following table sets forth, for the periods indicated, the reported high and low sales prices of our ordinary shares on the TASE in NIS and U.S.
dollars at a rate of $1.00 = NIS 3.6790, the exchange rate published by the Bank of Israel as of February 27, 2017.
Annual:
2016
2015
2014
2013
2012
Quarterly:
Fourth Quarter 2016
Third Quarter 2016
Second Quarter 2016
First Quarter 2016
Fourth Quarter 2015
Third Quarter 2015
Second Quarter 2015
First Quarter 2015
Most Recent Six Months:
February 2017 (through February 27, 2017)
January 2017
December 2016
November 2016
October 2016
September 2016
NIS
Price Per Ordinary Share
$
Price Per Ordinary Share
High
Low
High
Low
23.25
19.45
62.00
60.77
35.95
23.25
19.79
16.05
17.70
17.48
15.77
19.45
19.33
27.10
23.92
22.50
22.37
23.25
19.79
13.10
12.09
11.60
33.80
19.02
19.27
14.05
14.01
13.10
13.03
12.09
14.11
14.70
23.55
20.89
20.35
19.66
19.27
17.34
6.32
4.97
15.85
15.54
9.19
6.32
5.38
4.36
4.81
4.75
4.29
5.29
5.25
7.37
6.50
6.12
6.08
6.32
5.38
3.56
3.09
2.97
8.64
4.86
5.24
3.82
3.81
3.56
3.54
3.29
3.84
4.00
6.40
5.68
5.53
5.34
5.24
4.71
On February 27, 2017, the last reported sale price of our ordinary shares on the TASE was NIS 25.53 per share, or $6.94 per share (based on the
exchange rate reported by the Bank of Israel on such date, which was NIS 3.6790 = $1.00).
Item 10. Additional Information
A. Share Capital
Not applicable.
126
B. Memorandum and Articles of Association
Establishment and Purposes of the Company
We were incorporated under the laws of the State of Israel on December 13, 1990 under the name Kamada Ltd. We are registered with the Israeli
Registrar of Companies in Jerusalem. Our registration number is 51-152460-5. Our purpose as set forth in our amended articles of association is to engage in
any lawful business.
Ordinary Shares
Voting
Holders of our ordinary shares have one vote per ordinary share on all matters submitted to a vote of shareholders at a shareholders' meeting.
Shareholders may vote at shareholder meetings either in person, by proxy or, with respect to certain resolutions, by a voting instrument.
Israeli law does not allow public companies to adopt shareholder resolutions by means of written consent in lieu of a shareholder meeting.
Transfer of Shares
Fully paid ordinary shares are issued in registered form and may be freely transferred under our articles of association unless the transfer is restricted
or prohibited by another instrument, Israeli law or the rules of a stock exchange on which the shares are traded.
Election of Directors
Our ordinary shares do not have cumulative voting rights for the election of directors. Rather, under our articles of association, our directors (other
than external directors, if any) are elected by the holders of a simple majority of our ordinary shares at a general shareholder meeting (excluding abstentions).
See “Item 6. Directors, Senior Management and Employees — Board of Directors.” As a result, the holders of our ordinary shares that represent more than
50% of the voting power represented at a shareholder meeting and voting thereon (excluding abstentions) have the power to elect any or all of our directors
(other than external directors, if any) whose positions are being filled at that meeting. In addition, under our articles of association, vacancies on our board of
directors, including vacancies resulting from there being fewer than the maximum number of directors permitted by our articles of association, may be filled
by a vote of a simple majority of the directors then in office.
Dividend and Liquidation Rights
Under Israeli law, we may declare and pay dividends only if, upon the determination of our board of directors, there is no reasonable concern that the
distribution will prevent us from being able to meet the terms of our existing and foreseeable obligations as 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
according to our then last reviewed or audited financial statements, after subtracting earlier distributions if they have not yet been subtracted from the
earnings, provided that the date of the financial statements is not more than six months prior to the date of 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.
127
In the event of our liquidation, after satisfaction of liabilities to creditors, our assets will be distributed to the holders of ordinary shares in proportion
to the nominal value of their shareholdings. Dividend and liquidation rights may be affected by the grant of preferential dividend or distribution rights to the
holders of a class of shares with preferential rights that may be authorized in the future (subject to applicable law and applicable stock exchange rules).
Shareholder Meetings
Under the Companies Law, we are required to convene an annual general meeting of our shareholders at least once every calendar year and within a
period of not more than 15 months following the preceding annual general meeting. Our board of directors may convene a special general meeting of our
shareholders whenever it sees fit and is required to do so upon the written request of two directors or one quarter of the serving members of our board of
directors, or one or more holders of 5% or more of our outstanding share capital and 1% of our voting power, or the holder or holders of 5% or more of our
voting power.
The Companies Law requires that resolutions regarding the following matters (among others) be approved by our shareholders at a general meeting:
amendments to our articles of association; appointment, terms of service and termination of service of our auditors; election of external directors (to the extent
we are required to appoint external directors under the Companies Law); approval of certain related party transactions; increases or reductions of our
authorized share capital; mergers; and the exercise of our board of director’s powers by a general meeting, if our board of directors is unable to exercise its
powers and the exercise of any of its powers is essential for our proper management.
The chairman of our board of directors presides over our general meetings. However, if at any general meeting the chairman is not present within 15
minutes after the appointed time, or is unwilling to act as chairman of such meeting, then the shareholders present will choose any other person present to be
chairman of the meeting. Subject to the provisions of the Companies Law and the regulations promulgated thereunder, shareholders entitled to participate and
vote at general meetings are the shareholders of record on a date to be decided by the board of directors, which, as company listed also on an exchange
outside of Israel, may be between four and 40 days prior to the date of the meeting.
Israeli law requires that a notice of any annual general meeting or special general meeting be provided to shareholders at least 21 days prior to the
meeting and if the agenda of the meeting includes, among other things, the appointment or removal of directors, the approval of transactions with office
holders or interested or related parties, an approval of a merger or the approval of the compensation policy, notice must be provided at least 35 days prior to
the meeting.
Quorum
Pursuant to our articles of association, the quorum required for a meeting of our shareholders is the presence of two or more shareholders present in
person, by proxy or by a voting instrument, who hold at least 25% of our voting power. A meeting adjourned for lack of a quorum is generally adjourned to
one week thereafter at the same time and place, or to such other day, time and place, as our board of directors may indicate in the notice of the meeting to the
shareholders. Pursuant to our articles of association, at the reconvened meeting, the meeting will take place with whatever number of participants present.
Resolutions
Under the Companies Law, unless otherwise provided in our articles of association or applicable law, all resolutions of the shareholders require a
simple majority of the voting rights represented at the meeting, in person, by proxy or, with respect to certain resolutions, by a voting instrument, and voting
on the resolution (excluding abstentions). Under Israeli law, a resolution for the voluntary winding up of the company requires the approval by the holders of
75% of the voting rights represented at the meeting, in person or by proxy and voting on the resolution (excluding abstentions). Under our articles of
association, a merger shall require the approval of a special majority of the shareholders, as described below under “Merger.”
128
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 and any document we are required by law
to file publicly with the Israeli Companies Registrar or with the Israel Securities Authority. In addition, 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, that the document contains a commercial or technological secret
or that the document’s disclosure may otherwise impair our interests.
Acquisitions Under Israeli Law
Full Tender Offer
A person wishing to acquire shares of an Israeli public company and who would, as a result, hold over 90% of the target company’s issued and
outstanding share capital (or over 90% of the issued and outstanding share capital of a certain class of shares) is required by the Companies Law to make a
tender offer to all of the company’s shareholders (or all of the shareholders who hold shares of the same class) for the purchase of all of the issued and
outstanding shares of the company or of a certain class. 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 also 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, may, within six months from the date of acceptance of the tender offer, petition an Israeli court to determine whether 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 offeror may include in the
terms of the tender offer that an offeree who accepted the offer will not be entitled to petition the Israeli court as described above.
If (a) the shareholders who did not respond or accept the tender offer hold at least 5% of the issued and outstanding share capital of the company or
of the applicable class or the shareholders who accept the offer constitute less than a majority of the offerees that do not have a personal interest in the
acceptance of the tender offer, or (b) the shareholders who did not accept the tender offer hold 2% or more of the issued and outstanding share capital of the
company (or of the applicable class), the acquirer may not acquire shares of the company that will increase its holdings to more than 90% of the company’s
issued and outstanding share capital or of the applicable class from shareholders who accepted the tender offer.
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.
129
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, provided 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 placement, that was approved by the company’s shareholders
and whose purpose is to give the acquirer at least 25% of the voting rights in the company if there is no person who holds 25% or more of the voting rights in
the company, or as a private placement 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 25% or more of the voting rights in the company and resulted in the acquirer becoming
a holder of 25% or more 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.
A special tender offer must be extended to all shareholders of a 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 number of shares tendered in the offer exceeds the
number of shares whose holders objected to the offer (excluding controlling shareholders, holders of 25% or more of the voting rights in the company and any
person having a personal interest in the acceptance of the tender offer).
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 it
may abstain from expressing any opinion if it is unable to do so, provided that it gives the reasons for its abstention.
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 is accepted, 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
must refrain from making a subsequent tender offer for the purchase of shares of the target company and may not effect 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.
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. Under our articles of association, a merger shall require the approval of 66% of the voting
rights represented at a meeting of our shareholders and voting on the matter, in person or by proxy, and any amendment to such provision shall require the
approval of 60% of the voting rights represented at a meeting of our shareholders and voting on the matter, in person or by proxy.
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.
130
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
outstanding shares or the right to appoint 25% or more of the directors of the other party, 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.
Under the Companies Law, a merging company must send a copy of the proposed merger plan to its secured creditors no later than three days after
the date on which the merger proposal was submitted to the Israeli Companies Registrar. 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 a merging company, 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.
Anti-takeover Measures
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 or additional rights to voting, distributions or other matters and shares having preemptive rights. We do not have any authorized or issued
shares other than ordinary shares. In the future, if we do create and issue a class of shares other than ordinary shares, such class of shares, depending on the
specific rights that may be attached to them, may delay or prevent a takeover or otherwise prevent our shareholders from realizing a potential premium over
the market value of their ordinary shares. The authorization of a new class of shares will require an amendment to our articles of association which requires
the prior approval of a majority of our shares represented and voting at a general meeting. Shareholders voting at such a meeting will be subject to the
restrictions under the Companies Law described above in “— Ordinary Shares — Voting.” Pursuant to the Israeli Securities Law, 5728-1968, a company
whose shares are traded on the TASE may not have more than one class of shares except for preferred shares which may have a dividend preference but may
not have any voting rights.
Tax Law
Israeli tax law treats some acquisitions, such as stock-for-stock swaps between an Israeli company and a foreign company, less favorably than U.S.
tax law. For example, Israeli tax law may subject a shareholder who exchanges ordinary shares in an Israeli company for shares in a non-Israeli corporation to
immediate taxation unless such shareholder receives authorization from the Israeli Tax Authority for different tax treatment.
131
Modification of Class Rights
The Companies Law and our articles of association provide that the rights of a particular class of shares may not be modified without the affirmative
vote at a separate meeting of such class of a majority of shares actually participating in such class meeting.
Transfer Agent and Registrar
The transfer agent and registrar for our ordinary shares is American Stock Transfer & Trust Company, LLC. The nominee company to the TASE in
whose name most of our outstanding shares are held of record is Mizrahi Tefahot Registration Company Ltd.
C. Material Contracts
We have not entered into any material contracts other than in the ordinary course of business and other than those described in “Item 4. Information
on the Company” or elsewhere in this Annual Report.
D. Exchange Controls
Non-residents of Israel who hold our ordinary shares are able to receive any dividends, and any amounts payable upon the dissolution, liquidation
and winding up of our affairs, freely repatriable in non-Israeli currency at the rate of exchange prevailing at the time of conversion. However, Israeli income
tax is required to have been paid or withheld on these amounts. In addition, the statutory framework for the potential imposition of exchange controls has not
been eliminated, and may be restored at any time by administrative action.
E. Taxation
The following description is not intended to constitute a complete analysis of all tax consequences relating to the acquisition, ownership and
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 or other taxing jurisdiction.
Israeli Tax Considerations and Government Programs
The following is a brief summary of the material Israeli tax laws applicable to us, and certain Israeli Government programs benefiting us. This
section also contains a discussion of material Israeli tax consequences concerning the ownership of and disposition of our ordinary shares. This summary does
not discuss all 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, such as traders in securities, who are subject to special treatment under Israeli law. The discussion below is subject to amendment under Israeli
law or changes to the applicable judicial or administrative interpretations of Israeli law, which could affect the tax consequences described below.
The discussion below does not cover all possible tax considerations. Potential investors are urged to consult their own tax advisors as to the Israeli or
other tax consequences of the purchase, ownership and disposition of our ordinary shares, including in particular, the effect of any foreign, state or local taxes.
General Corporate Tax Structure in Israel
Israeli companies are generally subject to corporate tax, which has decreased in recent years, from a rate of 26.5% in 2014 and 2015 to 25% in 2016
and to 24% in 2017, and will further decrease to 23% for 2018. However, the effective corporate tax rate payable by a company that derives income from an
Approved Enterprise, a Privileged Enterprise or a Preferred Enterprise (as discussed below) may be considerably less. Capital gains generated by an Israeli
company are generally subject to tax at the corporate tax rate.
132
Law for the Encouragement of Industry (Taxes), 1969
The Law for the Encouragement of Industry (Taxes), 1969 (the “Encouragement of Industry Law”), provides several tax benefits to “Industrial
Companies.” Pursuant to the Encouragement of Industry Law, a company qualifies as an Industrial Company if it is a resident of Israel and at least 90% of its
income in any tax year (exclusive of income from certain defense loans) is generated from an “Industrial Enterprise” that it owns. An Industrial Enterprise is
defined as an enterprise whose principal activity, in a given tax year, is industrial activity.
An Industrial Company is entitled to certain tax benefits, including: (i) a deduction of the cost of purchases of patents and know-how and the right to
use patents and know-how used for the development or promotion of the Industrial Enterprise in equal amounts over a period of eight years, beginning from
the year in which such rights were first used, (ii) the right to elect to file consolidated tax returns, under certain conditions, with additional Israeli Industrial
Companies controlled by it, and (iii) the right to deduct expenses related to public offerings in equal amounts over a period of three years beginning from the
year of the offering.
Eligibility for benefits under the Encouragement of Industry Law is not contingent upon the approval of any governmental authority.
There is no assurance that we qualify or will continue to qualify as an Industrial Company or that the benefits described above will be available in
the future.
Law for the Encouragement of Capital Investments, 1959
Our facilities in Israel have been granted Approved Enterprise status under the Law for the Encouragement of Capital Investments, 1959, commonly
referred to as the “Investment Law”. The Investment Law provides that a capital investment in eligible production facilities (or other eligible assets) may,
upon application to the Investment Center, be designated as an “Approved Enterprise.” Each certificate of approval for an Approved Enterprise relates to a
specific investment program delineated both by its financial scope, including its sources of capital, and by its physical characteristics, for example, the
equipment to be purchased and utilized pursuant to the program. The tax benefits generated from any such certificate of approval relate only to taxable
income attributable to the specific Approved Enterprise.
In recent years the Investment Law has undergone major reforms and several amendments which were intended to provide expanded tax benefits and
to simplify the bureaucratic process relating to the approval of investments qualifying under the Investment Law. The different benefits under the Investment
Law depend on the specific year in which the enterprise received approval from the Investment Center or the year it was eligible for Approved/Privileged
Enterprise status under the Investment Law, and the benefits available at that time. Below is a short description of the different benefits available to us under
the Investment Law:
Approved Enterprise
One of our facilities has Approved Enterprise status granted by the Investment Center, which made us eligible for a grant and certain tax benefits
under the “Grant Track.” The approved investment program provided us with a grant in the amount of 24% of our approved investments, in addition to certain
tax benefits, which will apply to our turnover resulting from the operation of such investment program, for a period of up to ten consecutive years from the
first year in which we generated taxable income. The tax benefits under the Grant Track include accelerated depreciation and amortization for tax purposes as
well as a tax exemption for the first two years of the benefit period and the taxation of income generated from an Approved Enterprise at a reduced corporate
tax rate of 10%-25%, for a certain period of time. The benefit period is ordinarily seven to ten years commencing with the year in which the Approved
Enterprise first generates taxable income. The benefit period is limited to 12 years from the earlier of the operational year as determined by the Investment
Center or 14 years from the date of approval of the Approved Enterprise. The tax benefits under the Approved Enterprise status will expire at the end of 2017.
133
Privileged Enterprise
We obtained a tax ruling from the Israeli Tax Authority according to which, among other things, our activity has been qualified as an “industrial
activity”, as defined in the Investment Law and is also eligible to tax benefits as a Privileged Enterprise under the “Tax Benefit Track,” which will apply to
the turnover attributed to such enterprise, for a period of up to ten years from the first year in which we generated taxable income.
On April 1, 2005, an amendment to the Investment Law came into effect (the “2005 Amendment”), which revised the criteria for investments
qualified to receive tax benefits. An eligible investment program under the 2005 Amendment will qualify for benefits as a “Privileged Enterprise” (rather
than the previous terminology of Approved Enterprise). Pursuant to the 2005 Amendment, a company whose facilities meet certain criteria set forth in the
2005 Amendment may claim certain tax benefits offered by the Investment Law (as further described below) directly in its tax returns, without the need to
obtain prior approval. In order to receive the tax benefits, the company must make an investment in the Privileged Enterprise which meets all of the
conditions, including exceeding a certain percentage or a minimum amount, specified in the Investment Law. Such investment must be made over a period of
no more than three years ending at the end of the year in which the company requested to have the tax benefits apply to the Privileged Enterprise (the “Year of
Election”). According to the tax ruling mentioned above, our Year of Election is 2009. We also elected 2012 as a Year of Election. The duration of tax
benefits is subject to a limitation of the earlier of seven to ten years from the first year in which the company generated taxable income (at or after the Year of
Election), or 12 years from the first day of the Year of Election. Therefore, the tax benefits under our Privileged Enterprise are scheduled to expire at the end
of 2023.
The term “Privileged Enterprise” means an industrial enterprise which is “competitive” and contributes to the gross domestic product, and for which
a minimum entitling investment was made in order to establish it (as explained above). For this purpose, an industrial enterprise is deemed to be competitive
and contributing to the gross domestic product if it meets one of the following conditions: (1) its main activity is in the field of biotechnology or
nanotechnology, as certified by the Director of the Industrial Research and Development Administration before the project was approved; or (2) its income
during a tax year from sales to a certain market does not exceed 75% of its total income from sales in that tax year; or (3) 25% or more of its total income
from sales in the tax year is from sales to a certain market with at least 14,000,000 inhabitants.
A taxpayer owning a Privileged Enterprise is entitled to a reduced corporate tax rate for income from the sale of products produced by the Privileged
Enterprise in each tax year during the benefit period. In addition, the Privileged Enterprise is entitled to claim accelerated depreciation for manufacturing
assets used by the Privileged Enterprise.
The tax benefits available to Privileged Enterprises under the “Tax Benefits Track” are as follows: An exemption from corporate tax may be
available on undistributed income for a period of two to ten years, depending on the location of the Privileged Enterprise within Israel, as well as a reduced
corporate tax rate of 10% to 25% for the remainder of the benefit period, depending on the level of foreign investment in each year.
However, a company that pays a dividend out of income generated during the tax exemption period from the Privileged/Approved Enterprise is
subject to deferred corporate tax with respect to the otherwise exempt income (grossed-up to reflect the pre-tax income that we would have had to earn in
order to distribute the dividend) at the corporate tax rate which would have applied if the company had not enjoyed the exemption (i.e. at a reduced tax rate
between 10% and 25%, depending on the level of foreign investment). A company is generally required to withhold tax on such distribution at a rate of 20%
effective as of January 1, 2014 (or a reduced rate under an applicable double tax treaty, subject to the approval by the Israeli Tax Authority).
134
Preferred Enterprise
An amendment to the Investment Law that became effective on January 1, 2011 (“Amendment No. 68”) changed the benefit alternatives available to
companies under the Investment Law and introduced new benefits to “Preferred Enterprises.” The tax benefits granted to a Preferred Enterprise are
determined depending on the location of the Preferred Enterprise within Israel. Amendment No. 68 imposes a reduced flat corporate tax rate which is not
program-dependent and applies to the industrial enterprise’s entire “preferred income” which is generated by its Preferred Enterprise.
According to the Investment Law, a uniform corporate tax rate will apply to all qualifying income of the Preferred Enterprise. Under an amendment
to the Investment Law that became effective on January 1, 2014, the uniform corporate tax rate was 9% in areas in Israel designated as Development Zone A
and 16% elsewhere in Israel, effective as of January 1, 2014. Under an amendment to the Investment Law that became effective on January 1, 2017, the
uniform corporate tax rate in areas in Israel designated as Development Zone A was reduced to 7.5%, effective as of January 1, 2017.
The tax benefits under Amendment No. 68 also include accelerated depreciation and amortization for tax purposes during the first five-year period
for productive assets that the Preferred Enterprise uses pursuant to the rates prescribed in the Investment Law. Preferred Enterprises located in specific
locations within Israel (Zone A) are eligible for grants and/or loans approved by the Israeli Investment Center, as well as tax benefits. Our facility in Beit-
Kama, Israel, is located in zone A.
A dividend distributed from income which is attributed to a Preferred Enterprise/Special Preferred Enterprise will be subject to withholding tax at
source at the following rates: (i) Israeli resident corporation – 0%, (ii) Israeli resident individual – 20% as of 2014 (iii) non-Israeli resident – 20% as of 2014
subject to a reduced tax rate under the provisions of an applicable double tax treaty.
The provisions of Amendment No. 68 do not apply to existing Privileged Enterprises or Approved Enterprises, which will continue to be entitled to
the tax benefits under the Investment Law as in effect prior to Amendment No. 68. Nevertheless, a company owning such enterprises may choose to apply
Amendment No. 68 to its existing enterprises while waiving benefits provided under the Investment Law as in effect prior to Amendment No. 68. A company
owning a Privileged Enterprise or an Approved Enterprise that made such election by July 30, 2015, is entitled to distribute income generated by the
Approved/Privileged Enterprise to its Israeli corporate shareholders tax free. Once a company elects to be classified as a Preferred Enterprise under the
provisions of Amendment No. 68, the election cannot be rescinded and such company will no longer enjoy the tax benefits of its Approved/Privileged
Enterprises.
To date, we have not elected to be classified as a Preferred Enterprise under Amendment No. 68.
There can be no assurance that we will comply with the conditions required to remain eligible for benefits under the Investment Law in the future,
including under our certificate of approval with respect to our Approved Enterprise and our tax ruling with respect to our Privileged Enterprise, or that we
will be entitled to any additional benefits thereunder. If we do not fulfill these conditions in whole or in part, the benefits can be canceled and we may be
required to refund the amount of the benefits, linked to the Israeli consumer price index, with interest.
The Encouragement of Industrial Research, Development and Technological Innovation in the Industry Law, 5744-1984 (formerly known as The
Encouragement of Industrial Research and Development Law, 5744-1984)
Under the Encouragement of Research, Development and Technological Innovation in the Industry Law 5744-1984 (formerly known as the
Encouragement of Industrial and Development Law, 5744-1984) (the “Research Law”), research and development programs which meet specified criteria and
are approved by a committee of the National Authority for Technological Innovation, or NATI, of the Ministry of Economy and Industry (“NATI”) (formerly
known as the Office of the Chief Scientist of the Israeli Ministry of Economy) are eligible for grants. Under the Research Law, as currently in effect, the
grants awarded are typically up to 50% of the project’s expenditures, as determined by the research committee. The grantee is required to pay royalties to the
State of Israel from the sale of products developed under the program. Regulations under the Research Law generally provide for the payment of royalties of
3% to 6% on sales of products and services based on technology developed using grants, until 100% (which may be increased under certain circumstances) of
the U.S. dollar-linked value of the grant is repaid, with interest at the rate of 12-month LIBOR. The terms of the Israeli government participation also require
that products developed with government grants be manufactured in Israel and that the technology developed thereunder may not be transferred outside of
Israel, unless approval is received from the Office of the Chief Scientist and additional payments are made to the State of Israel. However, this does not
restrict the export of products that incorporate the funded technology. The royalty repayment ceiling can reach up to three times the amount of the grant
received if manufacturing is moved outside of Israel, and if the funded technology itself is transferred outside of Israel, the royalty ceiling can reach up to six
times the amount of grants (plus interest).
135
A significant amendment to the Research Law entered into effect on January 1, 2016, under which NATI, a statutory government corporation, was
established, which replaced the Office of the Chief Scientist of the Ministry of Economy and Industry. Under such amendment, NATI is authorized to
establish rules concerning the ownership and exploitation of NATI-funded know-how (including with respect to restrictions on transfer of manufacturing
activities and NATI-funded know-how outside of Israel), which may differ from the restrictive laws, regulations and guidelines as currently in effect (and
which shall remain in effect until such rules have been established by NATI). No such rules have been published to date by NATI and we cannot predict or
estimate the changes (if any) that may be made to this legislation (including with respect to the acquisition of a NATI-funded entity or the transfer of NATI-
funded technology).
Taxation of Our Shareholders
This discussion does not address the tax consequences applicable to shareholders that own, or have owned at any time, directly or indirectly, 10% or
more of our shares (“Controlling Shareholders”), and such shareholders should consult their tax advisers as to the tax consequences of owning or disposing of
our shares.
Capital gains
Under present Israeli tax legislation, the tax rate applicable to real capital gain derived by Israeli resident corporations from the sale of shares of an
Israeli company is the general corporate tax rate (which was 26.5% in 2014 and 2015, reduced to 25% in 2016 and 24% in 2017 and will further reduce to
23% in 2018).
Generally, as of January 1, 2006, the tax rate applicable to real capital gain derived by Israeli individuals from the sale of shares which had been
purchased on or after January 1, 2003, whether or not listed on a stock exchange, is 25%, unless such shareholder claims a deduction for interest and linkage
differences expenses in connection with the purchase and holding of such shares. Additionally, if such a shareholder is considered a “Substantial
Shareholder” (i.e., a person who holds, directly or indirectly, alone or together with another, 10% or more of any of the company’s “means of control”
(including, among other things, the right to receive profits of the company, voting rights, the right to receive the company’s liquidation proceeds and the right
to appoint a director)) 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%. Individual
shareholders dealing in securities in Israel are taxed at their marginal tax rates applicable to business income (up to 48% in the years 2014-2016 and 47%
from 2017).
136
Furthermore, an additional tax liability at the rate of 2% in the years 2014-2016 and 3% in 2017 is added to the applicable tax rate on the annual
taxable income of individuals (whether any such individual is an Israeli resident or non-Israeli resident) exceeding NIS 810,720 in 2015, NIS 803,520 in 2016
and NIS 640,000 in 2017.
Notwithstanding the foregoing, capital gains generated from the sale of shares by a non-Israeli shareholder may be exempt from Israeli taxes
provided that, in general, both the following conditions are met: (i) the seller of the shares does not have a permanent establishment in Israel to which the
generated capital gain is attributed and (ii) if the seller is a corporation, less than 25% of its means of control are held, directly and indirectly, by Israeli
residents or Israeli residents that are the beneficiaries or are eligible to less than 25% of the seller’s income or profits from the sale. In addition, the sale of the
shares may be exempt from Israeli capital gain tax under the provisions of an applicable tax treaty. For example, the Convention between the Government of
the United States of America and the Government of Israel with respect to Taxes on Income, or the “Israel-U.S.A. Double Tax Treaty,” generally exempts
U.S. residents from Israeli capital gains tax in connection with such sale, provided that (i) the U.S. resident owned, directly or indirectly, less than 10% of the
Israeli resident company’s voting power at any time within the 12-month period preceding such sale; (ii) the seller, if an individual, has been present in Israel
for less than 183 days (in the aggregate) during the taxable year; and (iii) the capital gain from the sale was not generated through a permanent establishment
of the U.S. resident in Israel.
The purchaser of the shares, the stockbrokers who effected the transaction or the financial institution holding the shares through which payment to
the seller is made are obligated, subject to the above-referenced exemptions if certain conditions are met, to withhold tax on the Real Capital Gain resulting
from a sale of shares at the rate of 25%.
A detailed return, including a computation of the tax due, must be filed and an advance payment must be paid on January 31 and July 31 of each tax
year for sales of shares traded on a stock exchange made within the six months preceding the month of the report. However, if the seller is exempt from tax or
all tax due was withheld at the source according to applicable provisions of the Israeli Income Tax Ordinance and the regulations promulgated thereunder, the
return does not need to be filed and an advance payment does not need to be made. Taxable capital gains are also reportable on an annual income tax return if
applicable.
Dividends
Our company is obligated to withhold tax, at the rate of 20% effective as of January 1, 2014, upon the distribution of a dividend attributed to an
Approved/Privileged Enterprise’s income, subject to a reduced tax rate under the provisions of an applicable double tax treaty, provided that a certificate from
the Israeli Tax Authorities allowing for a reduced withholding tax rate is obtained in advance. If the dividend is distributed from income not attributed to an
Approved/Privileged Enterprise, the following withholding tax rates will apply: (i) Israeli resident corporations — 0%, (ii) Israeli resident individuals — 25%
(or 30% in the case of a Substantial Shareholder) and (iii) non-Israeli residents (whether an individual or a corporation) — 25%, subject to a reduced tax rate
under the provisions of an applicable double tax treaty, provided that a certificate from the Israeli Tax Authorities allowing for a reduced withholding tax rate
is obtained in advance. Generally, the withholding rate will not be reduced under the Israel-U.S.A. Double Tax Treaty.
Estate and gift tax
Israeli law presently does not impose estate or gift taxes.
137
United States Federal Income Taxation
The following is a description of the material U.S. federal income tax consequences to a U.S. Holder (as defined below) of the acquisition,
ownership and disposition of our ordinary shares. This description addresses only the U.S. federal income tax consequences to holders of our ordinary shares
in the United States that will hold our ordinary shares as capital assets for U.S. federal income tax purposes. This description does not address many of the tax
considerations applicable to holders that may be subject to special tax rules, including, without limitation:
·
·
·
·
·
·
·
·
·
·
·
·
banks, certain financial institutions or insurance companies;
real estate investment trusts, regulated investment companies or grantor trusts;
dealers or traders in securities, commodities or currencies;
tax-exempt entities;
certain former citizens or long-term residents of the United States;
persons that received our shares as compensation for the performance of services;
persons that will hold our shares as part of a “hedging,” “integrated” or “conversion” transaction or as a position in a “straddle” for U.S.
federal income tax purposes;
partnerships (including entities classified as partnerships for U.S. federal income tax purposes) or other pass-through entities, or holders that
will hold our shares through such an entity;
S-corporations;
persons whose “functional currency” is not the U.S. Dollar;
persons that own directly, indirectly or through attribution 10% or more of the voting power or value of our shares; or
persons holding our ordinary shares in connection with a trade or business conducted outside the United States.
Moreover, this description does not address the U.S. federal estate, gift or alternative minimum tax consequences, or any state, local or foreign tax
consequences, of the acquisition, ownership and disposition of our ordinary shares.
This description is based on the U.S. Internal Revenue Code of 1986, as amended, (the “Code”), existing, proposed and temporary U.S. Treasury
Regulations and judicial and administrative interpretations thereof, in each case as available on the date hereof. All of the foregoing is subject to change,
which change could apply retroactively and could affect the tax consequences described below. There can be no assurance that the U.S. Internal Revenue
Service (“IRS”) will not take a different position concerning the tax consequences of the acquisition, ownership and disposition of our ordinary shares or that
the IRS’s position would not be sustained.
For purposes of this description, a “U.S. Holder” is a beneficial owner of our ordinary shares that, for U.S. federal income tax purposes, is:
·
a citizen or resident of the United States;
138
·
·
a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the
United States or any jurisdiction thereof; or
a trust or estate the income of which is subject to United States federal income taxation regardless of its source.
Holders should consult their tax advisors with respect to the U.S. federal, state, local and foreign tax consequences of acquiring, owning and
disposing of our ordinary shares.
Distributions
Subject to the discussion below under “Passive Foreign Investment Company Considerations,” the gross amount of any distribution made to a U.S.
Holder with respect to our ordinary shares before reduction for any Israeli taxes withheld therefrom, other than certain pro rata distributions of our ordinary
shares to all our shareholders, generally will be includible in the U.S. Holder’s income as dividend income to the extent the distribution is paid out of our
current or accumulated earnings and profits as determined under U.S. federal income tax principles. Subject to the discussion below under “Passive Foreign
Investment Company Considerations,” non-corporate U.S. Holders may qualify for the lower rates of taxation with respect to dividends on ordinary shares
applicable to long-term capital gains (i.e., gains from the sale of capital assets held for more than one year) provided that certain conditions are met, including
certain holding period requirements and the absence of certain risk reduction transactions. However, dividends on our ordinary shares will not be eligible for
the dividends received deduction generally allowed to corporate U.S. Holders. Subject to the discussion below under “Passive Foreign Investment Company
Considerations,” to the extent that the amount of any distribution by us exceeds our current and accumulated earnings and profits as determined under U.S.
federal income tax principles, it will be treated first as a tax-free return of tax basis in our ordinary shares and thereafter as capital gain. We do not expect to
maintain calculations of our earnings and profits under U.S. federal income tax principles and, therefore, U.S. Holders should expect that the entire amount of
any distribution generally will be reported as dividend income.
Dividends paid to U.S. Holders with respect to our ordinary shares will be treated as foreign source income, which may be relevant in calculating a
U.S. Holder’s foreign tax credit limitation. Subject to certain conditions and limitations, Israeli tax withheld on dividends may be deducted from taxable
income or credited against U.S. federal income tax liability. An election to deduct foreign taxes instead of claiming foreign tax credits applies to all foreign
taxes paid or accrued in the taxable year. The limitation on foreign taxes eligible for credit is calculated separately with respect to specific classes of income.
For this purpose, dividends that we distribute generally should constitute “passive category income,” or, in the case of certain U.S. Holders, “general category
income.” A foreign tax credit for foreign taxes imposed on distributions may be denied if certain minimum holding period requirements are not satisfied. The
rules relating to the determination of the foreign tax credit are complex, and U.S. Holders should consult their tax advisors to determine whether and to what
extent they will be entitled to this credit.
Sale, Exchange or Other Disposition of Ordinary Shares
Subject to the discussion below under “Passive Foreign Investment Company Considerations,” U.S. Holders generally will recognize gain or loss on
the sale, exchange or other disposition of our ordinary shares equal to the difference between the amount realized on the sale, exchange or other disposition
and the holder’s tax basis in our ordinary shares, and any gain or loss will be capital gain or loss. The tax basis in an ordinary share generally will be equal to
the cost of the ordinary share. For non-corporate U.S. Holders, capital gain from the sale, exchange or other disposition of ordinary shares is generally eligible
for a preferential rate of taxation in the case of long-term capital gain. The deductibility of capital losses for U.S. federal income tax purposes is subject to
limitations under the Code. Any gain or loss that a U.S. Holder recognizes generally will be treated as U.S. source income or loss for foreign tax credit
limitation purposes.
139
Passive Foreign Investment Company Considerations
If we were to be classified as a “passive foreign investment company,” (“PFIC”), in any taxable year, a U.S. Holder would be subject to special rules
generally intended to reduce or eliminate any benefits from the deferral of U.S. federal income tax that a U.S. Holder could derive from investing in a non-
U.S. company that does not distribute all of its earnings on a current basis.
A non-U.S. corporation will be classified as a PFIC for U.S. federal income tax purposes in any taxable year in which, after applying certain look-
through rules, either
·
·
at least 75% of its gross income is “passive income”, or
at least 50% of the average quarterly value of its gross assets is attributable to assets that produce passive income or are held for the
production of passive income.
Passive income for this purpose generally includes dividends, interest, royalties, rents, gains from commodities and securities transactions, the excess
of gains over losses from the disposition of assets which produce passive income and amounts derived by reason of the temporary investment of funds raised
in offerings of our ordinary shares. If a non-U.S. corporation owns at least 25% by value of the stock of another corporation, the non-U.S. corporation is
treated for purposes of the PFIC tests as owning its proportionate share of the assets of the other corporation and as directly receiving its proportionate share
of the other corporation’s income. If we are classified as a PFIC in any year with respect to which a U.S. Holder owns our ordinary shares, we generally will
continue to be treated as a PFIC with respect to that U.S. Holder in all succeeding years during which the U.S. Holder owns our ordinary shares, regardless of
whether we continue to meet the tests described above.
However, our PFIC status for each taxable year may be determined only after the end of such year and will depend on the composition of our income
and assets, our activities and the value of our assets (which may be determined in large part by reference to the market value of our ordinary shares, which
may be volatile) from time to time. If we are a PFIC then unless a U.S. Holder makes one of the elections described below, a special tax regime will apply to
both (i) any “excess distribution” by us to that U.S. Holder (generally, the U.S. Holder’s ratable portion of distributions in any year which are greater than
125% of the average annual distribution received by the holder in the shorter of the three preceding years or its holding period for our ordinary shares) and (ii)
any gain realized on the sale or other disposition of the ordinary shares.
Under this regime, any excess distribution and realized gain will be treated as ordinary income and will be subject to tax as if (i) the excess
distribution or gain had been realized ratably over the U.S. Holder’s holding period, (ii) the amount deemed realized in each year had been subject to tax in
each year of that holding period at the highest marginal rate for that year (other than income allocated to the current period or any taxable period before we
became a PFIC, which will be subject to tax at the U.S. Holder’s regular ordinary income rate for the current year and will not be subject to the interest charge
discussed below), and (iii) the interest charge generally applicable to underpayments of tax had been imposed on the taxes deemed to have been payable in
those years. In addition, dividend distributions made to a U.S. Holder will not qualify for the lower rates of taxation applicable to long-term capital gains
discussed above under “Distributions.” Certain elections may be available that would result in an alternative treatment (such as mark-to-market treatment) of
our ordinary shares. We do not intend to provide the information necessary for U.S. Holders to make qualified electing fund elections if we are classified as a
PFIC. U.S. Holders should consult their tax advisors to determine whether any of these elections would be available and if so, what the consequences of the
alternative treatments would be in their particular circumstances.
If we are determined to be a PFIC, the general tax treatment for U.S. Holders described in this paragraph would apply to indirect distributions and
gains deemed to be realized by U.S. Holders in respect of any of our subsidiaries that also may be determined to be PFICs.
140
In addition, all U.S. Holders may be required to file tax returns (including on IRS Form 8621) containing such information as the U.S. Treasury may
require. For example, if a U.S. Holder owns ordinary shares during any year in which we are classified as a PFIC and the U.S. Holder recognizes gain on a
disposition of our ordinary shares or receives distributions with respect to our ordinary shares, the U.S. Holder generally will be required to file an IRS Form
8621 with respect to the company, generally with the U.S. Holder’s federal income tax return for that year. The failure to file this form when required could
result in substantial penalties.
Based on the financial information currently available to us and the nature of our business, we do not expect that we will be classified as a PFIC for
the taxable year ending December 31, 2016. However, this determination could be subject to change. If, contrary to our expectations, we were to be classified
as a PFIC, U.S. Holders of ordinary shares may be required to file form 8621 with respect to their ownership of our ordinary shares in the year in which we
were a PFIC. U.S. Holders of our ordinary shares should consult their tax advisors in this regard.
Backup Withholding and Information Reporting Requirements
U.S. backup withholding and information reporting requirements may apply to payments to holders of our ordinary shares. Information reporting
generally will apply to payments of dividends on, and to proceeds from the sale of, our ordinary shares made within the United States, or by a U.S. payor or
U.S. middleman, to a holder of our ordinary shares, other than an exempt recipient (including a corporation). A payor may be required to backup withhold
from payments of dividends on, or the proceeds from the sale or redemption of, ordinary shares within the United States, or by a U.S. payor or U.S.
middleman, to a holder, other than an exempt recipient, if the holder fails to furnish its correct taxpayer identification number or otherwise fails to comply
with, or establish an exemption from, the backup withholding tax requirements. Any amounts withheld under the backup withholding rules generally should
be allowed as a credit against the beneficial owner’s U.S. federal income tax liability, if any, and any excess amounts withheld under the backup withholding
rules may be refunded, provided that the required information is timely furnished to the IRS.
Additional Medicare Tax
Certain U.S. Holders who are individuals, estates or trusts may be required to pay an additional 3.8% Medicare tax on, among other things, dividends
and capital gains from the sale or other disposition of shares of common stock for taxable years beginning after December 31, 2012. For individuals, the
additional Medicare 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. U.S. Holders will likely not be able to credit foreign taxes against the 3.8% Medicare tax.
Foreign Asset Reporting
Certain U.S. Holders who are individuals (and certain domestic entities) may be required to report information relating to an interest in our ordinary
shares, subject to certain exceptions (including an exception for shares held in accounts maintained by U.S. financial institutions). U.S. Holders are urged to
consult their tax advisors regarding their information reporting obligations, if any, with respect to their ownership and disposition of our ordinary shares.
The above description is not intended to constitute a complete analysis of all tax consequences relating to acquisition, ownership and
disposition of our ordinary shares. Holders should consult their tax advisors concerning the tax consequences of their particular situations.
F. Dividends and Paying Agents
Not applicable.
141
G. Statement by Experts
Not applicable.
H. Documents on Display
You may inspect our securities filings, including this Annual Report and the exhibits and schedules thereto, without charge at the offices of the SEC
at 100 F Street, N.E., Washington, D.C. 20549. You may obtain copies of all or any part of the Annual Report from the Public Reference Section of the SEC,
100 F Street, NE, Washington, D.C. 20549 upon the payment of the prescribed fees. You may obtain information on the operation of the Public Reference
Room by calling the SEC at 1-800-SEC-0330. The SEC maintains a website at www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants like us that file electronically with the SEC. You can also inspect the Annual Report on this website.
A copy of each document (or a translation thereof to the extent not in English) concerning our company that is referred to in this Annual Report is
available for public view (subject to confidential treatment of certain agreements pursuant to applicable law) at our principal executive offices.
I. Subsidiary Information
Not applicable.
Item 11. Quantitative and Qualitative Disclosures About Market Risk
Interest Rate Risk
We are exposed to changes in interest arising from our financial assets as our financial debt bears fixed interest rates. We invest our cash balance in
interest-bearing deposits. We have exposure to investments in deposits or securities bearing fixed interest, which expose us to interest rate risk with respect to
fair value.
Foreign Currency Risk
Fluctuations in exchange rates, especially the NIS against the U.S. dollar, may affect our results, as part of our assets is linked to NIS, as are part of
our liabilities. Changes in exchange rates may also affect the prices of products purchased by us and designated for marketing in Israel in cases where these
product prices are not linked to the U.S. dollar and during the period after these products are sold to our customers in NIS. In addition, the fluctuation in the
NIS exchange rate against the U.S. dollar may impact our results, as a portion of our manufacturing cost is NIS denominated.
For the years ended December 31, 2016, 2015 and 2014, we have witnessed high volatility in the U.S. dollar exchange rate. This fact impacts our
revenues from the Distribution segment, where prices are denominated in or linked to the NIS upon delivery of product while our expenses for the purchase
of raw materials and imported goods in the Distribution segment are in U.S. dollars and part of our development and marketing expenses are paid in NIS.
We attempt to mitigate our currency exposure by matching assets denominated in NIS currency with liabilities denominated in NIS. In the
Distribution segment, we attempt to mitigate foreign currency exposure by matching Euro denominated expenses with Euro denominated revenues.
Additionally, we used, and from time to time, will continue to use, currency hedging transactions using financial derivatives, collars and forward currency
contracts. We attempt to enter into forward currency contracts with critical terms that match those of the underlying exposure. As of December 31, 2016, we
had open transactions in derivatives in the amount of approximately $19.4 million. We regularly monitor and review the need for currency hedging
transactions in accordance with trend analysis.
142
The following table presents information about the changes in the exchange rates of the NIS against the U.S. dollar:
Period
Year ended December 31, 2014
Year ended December 31, 2015
Year ended December 31, 2016
Change in Average
Exchange Rate
of the NIS against
the U.S. Dollar (%)
12.0
8.6
(1.2)
As of December 31, 2016, we had excess assets over liabilities denominated in NIS in the amount of $0.4 million. When the U.S. dollar appreciates
against the NIS, we recognize financial expenses with respect to exchange rate differences. When the U.S. dollar devalues against the NIS, we recognize
financial revenues.
As of December 31, 2016, we had foreign currency exposures to currencies other than U.S. dollars amounting to $3.9 million in excess liabilities
over assets. Most of this exposure is to the Euro.
A 10% increase (decrease) in the value of the NIS against the U.S. dollar would have decreased (increased) our financial assets by $0.4 million, $0.6
million and $0.5 million as of December 31, 2016, 2015 and 2014, respectively.
Item 12. Description of Securities Other Than Equity Securities
Not applicable.
143
PART II
Item 13. Defaults, Dividend Arrearages and Delinquencies
Not applicable.
Item 14. Material Modifications to the Rights of Security Holders and Use of Proceeds
Initial Public Offering
On June 5, 2013, we completed an initial public offering in the United States on Nasdaq of our ordinary shares, par value NIS 1.00 per share,
pursuant to a Registration Statement on Form F-1, as amended (File No. 333-187870), which became effective on May 30, 2013. Morgan Stanley & Co. LLC
and Jefferies LLC acted as representatives of the underwriters. We registered 5,582,636 ordinary shares in the offering and granted the underwriters a 30-day
over-allotment option to purchase up to 837,395 additional ordinary shares from us. The option to purchase additional ordinary shares was exercised in full on
June 4, 2013.
Pursuant to the initial public offering, we sold a total of 6,420,031 ordinary shares (including the shares sold pursuant to the over-allotment option) at
a price of $9.25 per share. The aggregate offering price of the shares sold (including the over-allotment option) was approximately $59.4 million. The total
expenses of the offering, including underwriting discounts and commissions, were approximately $6.6 million. The net proceeds we received from the
offering (including the over-allotment option) were approximately $52.8 million. We paid a one-time management compensation payment associated with the
initial public offering of approximately $1.1 million.
As of December 31, 2016, we have used a large portion of the net proceeds of our initial public offering. We intend to use the remaining net proceeds
we received from our initial public offering as disclosed in our Registration Statement on Form F-1.
Item 15. Controls and Procedures
(a) Disclosure Controls and Procedures. Our management, under the supervision and with the participation of our Chief Executive Officer and our
Deputy Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of our disclosure controls and procedures as of December 31,
2016, pursuant to Rule 13a-15 under the Exchange Act. Based on that evaluation, our Chief Executive Officer and our Deputy Chief Executive Officer and
Chief Financial Officer (the principal executive and principal financial officer, respectively) have concluded that our disclosure controls and procedure are
effective to provide reasonable assurance that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is
accumulated and communicated to our management, including our principal executive officer and principal financial officer, or persons performing similar
functions, as appropriate to allow timely decisions regarding required disclosure, and is recorded, processed, summarized and reported, within the time
periods specified in the SEC’s rules and forms.
(b) Report of Management on Internal Control over Financial Reporting. Our management is responsible for establishing and maintaining adequate
internal control over financial reporting. Our management has assessed the effectiveness of internal control over financial reporting based on the Internal
Control—Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on this
assessment, our management has concluded that our internal control over financial reporting as of December 31, 2016 was effective.
(c) Attestation Report of the Registered Public Accounting Firm. This annual report does not include an attestation report of the company’s registered
public accounting firm because we qualify as an emerging growth company and, as such, are exempt from such attestation.
144
(d) Changes in Internal Control over Financial Reporting. During the period covered by this report, we have not made any changes to our internal
control over financial reporting that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 16A. Audit committee financial expert
Our board of directors has determined that Avraham Berger and Saadia Ozeri, each an “independent” director for purposes of serving on an audit
committee under the Exchange Act and Nasdaq listing requirements, qualify as “audit committee financial experts,” as defined in Item 407(d)(5) of
Regulation S-K.
Item 16B. Code of Ethics
In November 2011, we adopted a Code of Ethics, which applies to our directors, officers and employees, including our Chief Executive Officer and
our Deputy Chief Executive Officer and Chief Financial Officer, principal accounting officer or controller, and persons performing similar functions. The
Code of Ethics is posted on our website, www.kamada.com.
Item 16C. Principal Accountant Fees and Services
During the years ended December 31, 2016 and 2015, we were billed the following aggregate fees for the professional services rendered by Kost
Forer Gabbay and Kasierer, a member of Ernst & Young Global, independent registered public accounting firm:
Year Ended December 31,
2016
2015
Audit Fees(1)
Audit-Related Fees(2)
Tax Fees(3)
Total
___________
(1) Audit fees are aggregate fees for audit services for each of the years shown in this table, including fees associated with the annual audit and reviews of
our quarterly financial results submitted on Form 6-K, consultations on various accounting issues and audit services provided in connection with other
statutory or regulatory filings.
190,000 $
15,000
33,615
238,615 $
180,000
--
5,942
185,942
$
$
(2) Audit-related fees are for services rendered by our auditors in connection with our shelf registration statement on Form F-3.
(3) Tax services rendered by our auditors were for tax compliance and for tax consulting associated with international transfer pricing.
Our audit committee has adopted a policy for pre-approval of audit and non-audit services provided by our independent auditor. Under the policy,
such services must require the specific pre-approval of our audit committee followed by ratification of our full board of directors. Any proposed services
exceeding the pre-approval amounts for all services to be provided by our independent auditor require an additional specific pre-approval by our audit
committee.
Item 16D. Exemptions from the Listing Standards for Audit Committees
Not applicable.
145
Item 16E. Purchase of Equity Securities by the Issuer and Affiliated Purchasers
In the year ended December 31, 2016, neither the company nor any affiliated purchaser (as defined in the Exchange Act) purchased any of the
company’s ordinary shares.
Item 16F. Change in Registrant's Certifying Accountant
None.
Item 16G. Corporate Governance
As a foreign private issuer whose shares are listed on the Nasdaq Global Select Market, we have the option to follow Israeli corporate governance
practices rather than certain of those of Nasdaq, except to the extent that such laws would be contrary to U.S. securities laws and provided that we disclose the
practices we are not following and describe the home country practices we follow instead. We rely on this “foreign private issuer exemption” with respect to
the following Nasdaq requirements:
·
·
·
·
Shareholder approval requirements for equity issuances and equity-based compensation plans. Under the Companies Law, the adoption of, and
material changes to, equity-based compensation plans generally require the approval of the board of directors (for approval of equity based
arrangements, see “Item 6. Directors, Senior Management and Employees — Fiduciary Duties and Approval of Specified Related Party
Transactions under Israeli Law — Disclosure of Personal Interests of a Controlling Shareholder and Approval of Certain Transactions,” “Item 6.
Directors, Senior Management and Employees — Compensation of Directors” and “Item 6. Directors, Senior Management and Employees —
Compensation of Executive Officers”). Similarly, the approval of the board of directors is generally sufficient for a private placement unless the
private placement is deemed a “significant private placement” (see “Item 6. Directors, Senior Management and Employees — Approval of
Significant Private Placements”), in which case shareholder approval is also required, or an office holder or a controlling shareholder or their
relative has a personal interest in the private placement, in which case, audit committee approval is required prior to the board approval and, for
a private placement in which a controlling shareholder or its relative has a personal interest, shareholder approval is also required (see “Item 6.
Directors, Senior Management and Employees — Fiduciary Duties and Approval of Specified Related Party Transactions under Israeli Law”).
Requirement for independent oversight on our director nominations process and to adopt a formal written charter or board resolution
addressing the nominations process. In accordance with Israeli law and practice, directors are recommended by our board of directors for
election by our shareholders. The Damar Group and Recananti Group have entered into a shareholders’ agreement which includes an agreement
about voting in the election of nominees appointed by the other party (see “Item 7. Major Shareholders and Related Party Transactions —
Related Party Transactions — Shareholders’ Agreement”).
Quorum requirement. Under our articles of association and as permitted under the Companies Law, a quorum for any meeting of shareholders
shall be the presence of at least two shareholders present in person, by proxy or by a voting instrument, who hold at least 25% of the voting
power of our shares instead of 33 1/3% of the issued share capital required under Nasdaq requirements. At an adjourned meeting, any number of
shareholders shall constitute a quorum.
Compensation Committee Charter. As permitted under the Companies Law, we do not have a formal charter for our compensation committee.
146
Except as stated above, we comply with the rules generally applicable to U.S. domestic companies listed on Nasdaq subject to certain exemptions the
JOBS Act provides to emerging growth companies. We may in the future decide to use other foreign private issuer exemptions with respect to some or all of
the other Nasdaq listing requirements. Following our home country governance practices, as opposed to the requirements that would otherwise apply to a
company listed on Nasdaq, may provide less protection than is accorded to investors under Nasdaq listing requirements applicable to domestic issuers. For
more information, see “Item 3. Key Information —D. Risk Factors — We are an ‘emerging growth company’ with reduced reporting requirements that may
make our ordinary shares less attractive to investors” and “Item 3. Key Information —D. Risk Factors — As we are a ‘foreign private issuer’ and intend to
follow certain home country corporate governance practices, our shareholders may not have the same protections afforded to shareholders of companies that
are subject to all Nasdaq corporate governance requirements.” We will also be required to comply with Israeli corporate governance requirements under the
Companies Law applicable to Israeli public companies such as us whose shares are also listed for trade on an exchange outside Israel.
Item 16H. Mine Safety Disclosure
Not applicable.
147
PART III
Item 17. Financial Statements
Consolidated Financial Statements are set forth under Item 18.
Item 18. Financial Statements
Our Consolidated Financial Statements beginning on pages F-1 through F-62, as set forth in the following index, are hereby incorporated herein by
reference. These Consolidated Financial Statements are filed as part of this Annual Report.
Report of Independent Registered Public Accounting Firm
Consolidated Financial Statements as of December 31, 2016:
Consolidated Balance Sheets
Consolidated Statements of Comprehensive Income (Loss)
Consolidated Statements of Changes in Equity
Consolidated Statements of Cash Flows
Notes to the Consolidated Financial Statements
Item 19. Exhibits
Exhibit No.
Description
Page
F-2
F-3
F-4
F-5
F-6
F-8
1.1
1.2
2.1
4.1†
4.2†
4.3†
4.4†
Amended Articles of Association of the Registrant (incorporated by reference to Appendix A2 to the Proxy Statement for the 2016
Annual General Meeting of Shareholders, filed as Exhibit 99.1 to Form 6-K filed with the Securities and Exchange Commission on
July 26, 2016).
Memorandum of Association of the Registrant, as currently in effect (as translated from Hebrew) (incorporated by reference to
Exhibit 3.1 of the Registration Statement on Form F-1 filed with the Securities and Exchange Commission on May 15, 2013).
Form of Certificate for Ordinary Shares (incorporated by reference to Exhibit 4.1 of the Registration Statement on Form F-1 filed
with the Securities and Exchange Commission on May 15, 2013).
Exclusive Manufacturing, Supply and Distribution Agreement, dated as of August 23, 2010, by and between Kamada Ltd. and
Baxter Healthcare Corporation (incorporated by reference to Exhibit 10.1 of the Registration Statement on Form F-1 filed with the
Securities and Exchange Commission on May 15, 2013).
Technology License Agreement, dated as of August 23, 2010, by and between Kamada Ltd. and Baxter Healthcare S.A.
(incorporated by reference to Exhibit 10.2 of the Registration Statement on Form F-1 filed with the Securities and Exchange
Commission on May 15, 2013).
Amended and Restated Fraction IV-1 Paste Supply Agreement, dated as of August 23, 2010, by and between Kamada Ltd. and
Baxter Healthcare Corporation (incorporated by reference to Exhibit 10.3 of the Registration Statement on Form F-1 filed with the
Securities and Exchange Commission on April 11, 2013).
First Amendment to the Amended and Restated Fraction IV-1 Paste Supply Agreement, dated as of May 10, 2011, by and between
Kamada Ltd. and Baxter Healthcare Corporation (incorporated by reference to Exhibit 10.4 of the Registration Statement on Form F-
1 filed with the Securities and Exchange Commission on April 11, 2013).
148
4.5†
4.6†
4.7†
4.8†
4.9†
4.10†
4.11†
4.12
4.13
4.14
4.15
4.16
4.17†
4.18
Second Amendment to the Amended and Restated Fraction IV-1 Paste Supply Agreement, dated as of June 22, 2011, by and between
Kamada Ltd. and Baxter Healthcare Corporation (incorporated by reference to Exhibit 10.5 of the Registration Statement on Form F-
1 filed with the Securities and Exchange Commission on April 11, 2013).
Exclusive Distribution Agreement, dated as of August 2, 2012, by and between Kamada Ltd. and Chiesi Farmaceutici S.p.A.
(incorporated by reference to Exhibit 10.6 of the Registration Statement on Form F-1 filed with the Securities and Exchange
Commission on May 15, 2013).
License Agreement, dated as of November 16, 2006, by and between PARI GmbH and Kamada Ltd. (incorporated by reference to
Exhibit 10.7 of the Registration Statement on Form F-1 filed with the Securities and Exchange Commission on April 11, 2013).
Amendment No. 1 to License Agreement, dated as of August 9, 2007, by and between PARI GmbH and Kamada Ltd. (incorporated
by reference to Exhibit 10.8 of the Registration Statement on Form F-1 filed with the Securities and Exchange Commission on April
11, 2013).
Addendum No. 1 to License Agreement, dated as of February 21, 2008, by and between PARI GmbH and Kamada Ltd.
(incorporated by reference to Exhibit 10.9 of the Registration Statement on Form F-1 filed with the Securities and Exchange
Commission on April 11, 2013).
Supply and Distribution Agreement, dated as of July 18, 2011, by and between Kamada Ltd. and Kedrion S.p.A. (incorporated by
reference to Exhibit 10.10 of the Registration Statement on Form F-1 filed with the Securities and Exchange Commission on April
11, 2013).
Distribution Agreement, dated as of August 2, 2011, by and between Kamada Ltd. and TUTEUR S.A.C.I.F.I.A. (incorporated by
reference to Exhibit 10.11 of the Registration Statement on Form F-1 filed with the Securities and Exchange Commission on April
11, 2013).
Kamada Ltd. 2011 Israeli Share Option Plan (incorporated by reference to Exhibit 10.13 of the Registration Statement on Form F-1
filed with the Securities and Exchange Commission on April 11, 2013).
English translation of form of Indemnification Agreement with the Registrant’s directors and officers (incorporated by reference to
Exhibit 10.15 of the Registration Statement on Form F-1 filed with the Securities and Exchange Commission on May 15, 2013).
English translation of amendment to form of Indemnification Agreement with the Registrant’s directors and officers (incorporated by
reference to Appendixes A3 and A4 of the Proxy filed as Exhibit 99.1 to Form 6-K filed with the Securities and Exchange
Commission on May 22, 2015).
English summary of two lease agreements dated June 20, 2002, by and between the Israel Lands Administration and Kamada
Nehasim (2001) Ltd., as such agreements were amended by lease agreement dated January 30, 2011, by and between the Israel
Lands Administration and Kamada Nehasim (2001) Ltd. (incorporated by reference to Exhibit 10.16 of the Registration Statement on
Form F-1 filed with the Securities and Exchange Commission on April 11, 2013).
English summary of a lease agreement dated December 2, 1984, by and between Africa-Israel Holdings Ltd. and RAD Chemicals
Ltd., as amended by a supplement to the lease agreement dated October 7, 1999, by and between Africa-Israel Holdings Ltd., RAD
Chemicals Ltd. and Kamada Ltd., as further amended by supplements to the lease agreement dated November 27, 2005; December 6,
2005; June 27, 2006; September 29, 2009; May 30, 2011; and August 13, 2012, by and between Africa-Israel Holdings Ltd. and
Kamada Ltd. (incorporated by reference to Exhibit 10.17 of the Registration Statement on Form F-1 filed with the Securities and
Exchange Commission on April 11, 2013).
Fraction IV-1 Paste Supply Agreement, dated December 3, 2012, by and between Baxter Healthcare S.A. and Kamada Ltd.
(incorporated by reference to Exhibit 10.18 of the Registration Statement on Form F-1 filed with the Securities and Exchange
Commission on April 11, 2013).
Registration Rights Agreement, dated as of April 14, 2013, by and among Kamada Ltd. and the individuals and entities identified
therein (incorporated by reference to Exhibit 10.19 of the Registration Statement on Form F-1 filed with the Securities and Exchange
Commission on May 15, 2013).
149
4.19
4.20
4.21†
4.22†
4.23†
4.24†
4.25†
4.26†
4.27†
4.28†
4.29
4.30
4.31†
4.32†
8.1
12.1
12.2
13.1
15.1
________
Side Letter Agreement, dated as of March 23, 2011, by and between Kamada Ltd. and Baxter Healthcare Corporation (incorporated
by reference to Exhibit 10.20 of the Registration Statement on Form F-1 filed with the Securities and Exchange Commission on May
15, 2013).
First Amendment to the Exclusive Manufacturing Supply and Distribution Agreement, dated as of September 6, 2012, between
Kamada Ltd. and Baxter Healthcare Corporation (incorporated by reference to Exhibit 10.21 of the Registration Statement on Form
F-1 filed with the Securities and Exchange Commission on May 15, 2013).
Second Amendment to the Exclusive Manufacturing, Supply and Distribution Agreement, dated as of May 14, 2013, by and between
Kamada Ltd. and Baxter Healthcare Corporation (incorporated by reference to Exhibit 10.22 of the Registration Statement on Form
F-1 filed with the Securities and Exchange Commission on May 15, 2013).
First Amendment to the Technology License Agreement, dated as of May 14, 2013, by and between Kamada Ltd. and Baxter
Healthcare Corporation (incorporated by reference to Exhibit 10.23 of the Registration Statement on Form F-1 filed with the
Securities and Exchange Commission on May 28, 2013).
Third Amendment to the Exclusive Manufacturing, Supply and Distribution Agreement, dated as of September 2014, by and
between Kamada Ltd. and Baxter Healthcare Corporation (incorporated by reference to Exhibit 4.25 of the Annual Report on Form
20-F filed with the Securities and Exchange Commission on April 28, 2015).
First Amendment to the Distribution Agreement dated as of August 19, 2014, by and between Kamada Ltd. and TUTEUR
S.A.C.I.F.I.A (incorporated by reference to Exhibit 4.26 of the Annual Report on Form 20-F filed with the Securities and Exchange
Commission on April 28, 2015).
Third Amendment to the Amended and Restated Fraction IV-1 Paste Supply Agreement executed on June 19, 2015 by and between
Kamada Ltd. and Baxalta US Inc. (incorporated by reference to Exhibit 4.29 of the Annual Report on Form 20-F filed with the
Securities and Exchange Commission on February 25, 2016).
Fourth Amendment to the Exclusive Manufacturing, Supply and Distribution Agreement, dated as of October, 2015, by and between
Kamada Ltd. and Baxalta US Inc. (incorporated by reference to Exhibit 4.30 of the Annual Report on Form 20-F filed with the
Securities and Exchange Commission on February 25, 2016).
Second Amendment to the Technology License Agreement, dated as of August 25, 2015, by and between Kamada Ltd. and Baxalta
GmbH. (incorporated by reference to Exhibit 4.31 of the Annual Report on Form 20-F filed with the Securities and Exchange
Commission on February 25, 2016).
Fifth Amendment to the Exclusive Manufacturing, Supply and Distribution Agreement, dated as of October 5, 2016, by and between
Kamada Ltd. and Shire plc.
Amended and Restated Compensation Policy, approved by the shareholders of the Registrant on August 30, 2016 (incorporated by
reference to Appendix A2 of the Proxy Statement filed as Exhibit 99.2 to Form 6-K filed with the Securities and Exchange
Commission on August 31, 2016).
Kamada Ltd. 2011 Israeli Share Award Plan (incorporated by reference to Exhibit 4.2 of the FORM S-8 filed with the Securities and
Exchange Commission on February 9, 2017).
Services Agreement dated as of September 14, 2016 by and between Kamada Ltd. and Yissum Research Development Company of
the Hebrew University of Jerusalem Ltd.
1st Addendum to Supply And Distribution Agreement dated October 15, 2016 between Kamada Ltd., and Kedrion S.p.A.
Subsidiaries of the Registrant.
Certification of Chief Executive Officer Pursuant to Rule 13a-14(a)/15d-14(a).
Certification of Chief Financial Officer Pursuant to Rule 13a-14(a)/15d-14(a).
Certification of Chief Executive Officer and Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
Consent of Ernst & Young Global, independent registered public accounting firm.
†
Portions of this exhibit have been omitted pursuant to a request for confidential treatment and the non-public information has been filed separately with
the Securities and Exchange Commission.
150
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: February 28, 2017
KAMADA LTD.
By: /s/ Gil Efron
Gil Efron
Deputy Chief Executive Officer and
Chief Financial Officer
151
Kamada Ltd. and its subsidiaries
Kamada Ltd.
Consolidated Financial Statements as of December 31, 2016
Table of Contents
Report of Independent Registered Public Accounting Firm
Consolidated Balance Sheets
Consolidated Statements of Profit or Loss and Other Comprehensive Income
Consolidated Statements of Changes in Equity
Consolidated Statements of Cash Flows
Notes to the Consolidated Financial Statements
Page
F-2
F-3
F-4
F-5
F-6 - F-7
F-8 - F-62
Kamada Ltd. and its subsidiaries
Report of Independent Registered Public Accounting Firm
The Board of Directors and Shareholders of Kamada Ltd.
We have audited the accompanying consolidated balance sheets of Kamada Ltd. ("the Company") as of December 31, 2016 and 2015 and the related
consolidated statements of comprehensive Income, changes in equity and cash flows for each of the three years ended December 31, 2016. These financial
statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these 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. We were
not engaged to perform an audit of the Company's internal control over financial reporting. Our audits 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
management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, based on our audits, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated
financial position of the Company as of December 31, 2016 and 2015 and the consolidated results of their operations and their cash flows for each of the three
years in the period ended December 31, 2016, in conformity with International Financial Reporting Standards as issued by the International Accounting
Standards Board.
Tel-Aviv, Israel
February 28, 2017
/S/Kost Forer Gabbay & Kasierer
A member of Ernst & Young Global
F - 2
Consolidated Balance Sheets
Current Assets
Cash and cash equivalents
Short-term investments
Trade receivables, net
Other accounts receivables
Inventories
Property, plant and equipment, net
Other long term assets
Current Liabilities
Current maturities of loans and capital leases
Trade payables
Other accounts payables
Deferred revenues
Non-Current Liabilities
Loans and capital leases
Employee benefit liabilities, net
Deferred revenues
Shareholder's Equity
Ordinary shares of NIS 1 par value:
Authorized - 60,000,000 ordinary shares; Issued and outstanding – 36,447,175 and 36,418,741 shares
at December 31, 2016 and 2015, respectively
Additional paid in capital
Capital reserve due to translation to presentation currency
Capital reserve from hedges
Capital reserve from available for sale financial assets
Capital reserve from share-based payments
Capital reserve from employee benefits
Accumulated deficit
The accompanying notes are an integral part of the Consolidated Financial Statements.
F - 3
Note
5
6
7
8
9
10
11
12,15
13
14
18a,b
15
17
18a,b
20
Kamada Ltd. and its subsidiaries
$
As of December 31,
2016
2015
In thousands
9,968 $
18,664
19,788
3,063
25,594
77,077
22,249
370
22,619
99,696
412
16,277
5,614
4,903
5,047
23,259
23,071
2,881
26,336
80,594
21,309
89
21,398
101,992
37
16,917
4,064
1,921
27,206
22,939
1,364
722
3,661
5,747
151
787
5,608
6,546
9,320
162,671
(3,490)
(27)
19
9,795
(81)
(111,464)
66,743
9,320
162,238
(3,490)
(1)
73
9,157
(59)
(104,731)
72,507
$
99,696 $
101,992
Consolidated Statements of Profit or Loss and Other Comprehensive Income (Loss)
Revenues from proprietary products
Revenues from distribution
Kamada Ltd. and its subsidiaries
For the Year Ended
December 31,
2015
2016
2014
Note
In thousands, except for share and per share data
$
55,958 $
21,536
42,952 $
26,954
44,389
26,676
Total revenues
23a
77,494
69,906
71,065
Cost of revenues from proprietary products
Cost of revenues from distribution
Total cost of revenues
Gross profit
Research and development expenses
Selling and marketing expenses
General and administrative expenses
Operating loss
Financial income
Expense in respect of currency exchange differences and derivatives instruments,
net
Financial expense
Loss before taxes on income
Taxes on income
Net loss
23b
23c
23d
23e
23f
23f
Other Comprehensive Income (loss):
Items that may be reclassified to profit or loss in subsequent periods:
Gain (loss) on available for sale financial assets
Gain (loss) on cash flow hedges
Net amounts transferred to the statement of profit or loss for cash flow hedges
Items that will not be reclassified to profit or loss in subsequent periods:
Actuarial gain (loss) from defined benefit plans
Total comprehensive loss
Loss per share attributable to equity holders of the Company:
24
Basic loss per share
Diluted loss per share
The accompanying notes are an integral part of the Consolidated Financial Statements
F - 4
$
$
$
37,433
18,411
30,468
23,640
32,617
23,406
55,844
54,108
56,023
21,650
15,798
15,042
16,245
3,243
7,643
(5,481)
16,530
3,652
7,040
(11,424)
16,030
2,898
7,593
(11,479)
469
463
404
127
(126)
(5,011)
1,722
625
(934)
(11,270)
-
-
(2,086)
(13,161)
52
(6,733)
(11,270)
(13,213)
(54)
47
(73)
63
71
44
37
(162)
(110)
(22)
(6,835) $
22
(11,070) $
48
(13,400)
(0.18) $
(0.18) $
(0.31) $
(0.31) $
(0.37)
(0.37)
Consolidated Statements of Changes in Equity
Kamada Ltd. and its subsidiaries
Share
capital
Share
premium
Conversion
option in
convertible
debentures
Capital
reserve
from
Available
for sale
financial
assets
Capital
reserve
due to
translation to
presentation
currency
Capital
reserve
from
hedges
Capital
reserve
from
share-based
payments
Capital
reserve
from
employee
benefits
Accumulated
deficit
Total
equity
In thousands
-
-
-
-
-
-
-
-
-
9
*
7
238
1,070
Balance as of
December 31, 2013 $ 9,201 $ 157,100 $
Net income
-
Other
comprehensive
income (loss)
Total comprehensive
income (loss)
Exercise of options
into shares
Conversion of
convertible
debentures into
shares
Expiration of
conversion option on
convertible
debentures
Cost of share-based
payment
Balance as of
December 31, 2014 $ 9,208 $ 158,417 $
Net loss
-
Other
comprehensive
income
Total comprehensive
income (loss)
Exercise of options
into shares
Expiration of
conversion option on
convertible
debentures
Cost of share-based
payment
Balance as of
December 31, 2015 $ 9,320 $ 162,238 $
-
Net loss
Other
comprehensive loss
Total
comprehensive loss
Exercise of options
into shares
Cost of share-based
payment
Balance as of
December 31, 2016 $ 9,320 $ 162,671 $
1,147
2,674
433
112
*
-
-
-
-
-
-
-
-
-
-
-
-
-
-
2,218 $
-
(27) $
-
(3,490) $
-
156 $
-
5,189 $
-
(129) $
-
(80,248) $ 89,970
(13,213) (13,213)
-
-
-
37
37
-
-
(272)
-
(272)
-
-
48
-
(187)
48
(13,213) (13,400)
-
-
(157)
-
-
88
(1)
-
-
-
-
-
-
8
(1,070)
-
-
-
-
-
-
-
-
3,751
-
-
-
-
-
3,751
1,147 $
-
10 $
-
(3,490) $
-
(116) $
-
8,783 $
-
(81) $
-
(93,461) $ 80,417
(11,270) (11,270)
-
-
-
(1,147)
-
- $
-
-
-
-
-
63
63
-
-
-
73 $
-
(54)
(54)
-
-
-
115
-
115
-
-
22
-
200
22
(11,270) (11,070)
-
-
(1,533)
-
-
1,253
-
-
-
-
-
1,907
-
-
-
-
-
1,907
(3,490) $
-
(1) $
-
9,157 $
-
(59) $
-
(104,731) $ 72,507
(6,733)
(6,733)
-
(26)
-
(26)
-
-
(22)
-
(102)
(22)
(6,733)
(6,835)
-
-
-
-
(433)
1,071
-
-
-
*
-
1,071
- $
19 $
(3,490) $
(27) $
9,795 $
(81) $
(111,464) $ 66,743
* Represent an amount lower than $1.
The accompanying notes are an integral part of the Consolidated Financial Statements
F - 5
Consolidated Statements of Cash Flows
Cash Flows from Operating Activities
Net loss
Adjustments to reconcile net loss to net cash provided by (used in) operating
activities:
Adjustments to the profit or loss items:
Depreciation and amortization
Financial expenses (income), net
Cost of share-based payment
Income tax expense
Gain from sale of property and equipment
Change in employee benefit liabilities, net
Changes in asset and liability items:
Decrease (increase) in trade receivables, net
Decrease (increase) in other accounts receivables
Decrease (increase) in inventories
Decrease (increase) in deferred expenses
Increase (decrease) in trade payables
Increase (decrease) in other accounts payables
Increase (decrease) in deferred revenues
Cash received (paid) during the year for:
Interest paid
Interest received
Taxes paid
Kamada Ltd. and its subsidiaries
2016
Note
For the Year Ended
December 31,
2015
In thousands
2014
$
(6,733) $
(11,270) $
(13,213)
10, 11
21
3,501
(470)
1,071
1,722
(18)
(87)
3,227
(154)
1,907
-
-
87
2,788
1,682
3,751
52
(2)
(57)
5,719
5,067
8,214
3,489
211
742
(433)
(2,650)
1,520
1,035
(5,604)
118
(913)
(565)
887
94
(2,405)
(869)
(50)
(3,490)
1,209
3,261
(344)
(4,026)
3,914
(8,388)
(4,309)
(60)
842
(1,785)
(484)
1,143
(47)
(1,210)
758
(158)
(1,003)
612
(610)
Net cash provided by (used in) operating activities
$
1,897 $
(13,979) $
(9,918)
The accompanying notes are an integral part of the Consolidated Financial Statements.
F - 6
Consolidated Statements of Cash Flows
Cash Flows from Investing Activities
Proceeds from sale of )investment in) short term investments, net
Purchase of property and equipment and intangible assets
Proceeds from sale of property and equipment
Kamada Ltd. and its subsidiaries
2016
For the Year Ended
December 31,
2015
In thousands
2014
$
4,236 $
(2,641)
42
13,971 $
(2,718)
-
(23,746)
(3,076)
3
Note
10
Net cash provided by (used in) investing activities
1,637
11,253
(26,819)
Cash Flows from Financing Activities
Proceeds from exercise of warrants and options
Receipt of long-term loans
Repayment of long-term loans
Repayment of convertible debentures
*
1,701
(211)
-
1,254
197
(9)
(7,797)
88
-
-
(7,728)
Net cash provided by (used in) financing activities
1,490
(6,355)
(7,640)
Exchange differences on balances of cash and cash equivalent
(103)
(418)
(187)
Increase (decrease) in cash and cash equivalents
4,921
(9,499)
(44,564)
Cash and cash equivalents at the beginning of the year
5,047
14,546
59,110
Cash and cash equivalents at the end of the year
$
9,968 $
5,047 $
14,546
Significant non-cash transactions
Purchase of property and equipment through capital lease
Purchase of property and equipment
Exercise of convertible debentures into shares
*Represent an amount of less than 1 thousands
The accompanying notes are an integral part of the Consolidated Financial Statements.
F - 7
$
$
$
132 $
1,968 $
- $
- $
- $
- $
-
-
7
Notes to the Consolidated Financial Statements
NOTE 1: - GENERAL
a.
General description of the Company and its activity
Kamada Ltd. and its subsidiaries
Kamada Ltd. ("the Company") is an orphan drug focused, plasma derived protein therapeutics Company with an existing marketed
product portfolio. The Company develops and produces plasma-derived protein therapeutics and currently markets these products
through strategic partners in the United States and Europe and through local distributors, in several emerging markets. The Company
flagship product is "Glassia".
The Company's activity is divided into two operating segments:
Proprietary Products
Development, manufacture and sale of plasma-derived therapeutics products.
Distribution
Distribution of drugs in Israel manufacture by other companies, most of which are produced from
plasma or its derivatives products.
The Company's securities are listed for trading on the Tel Aviv stock exchange and on the NASDAQ.
b.
The Company has three fully-owned subsidiaries – Kamada Inc, Kamada Biopharma Limited and Bio-Kam Ltd which are not active. In
addition the Company owns 74% of Kamada Assets Ltd. ("Kamada Assets").
c.
Definitions
In these Financial Statements –
The Company
- Kamada Ltd.
The Group
Subsidiary
- The Company and its subsidiaries.
-
A company which the Company has a control over (as defined in IFRS 10) and whose financial statements
are consolidated with the Company's Financial Statements.
Related parties
- As defined in IAS 24.
USD/$
NIS
-
-
U.S. dollar.
New Israeli Shekel
F - 8
Notes to the Consolidated Financial Statements
NOTE 2: - SIGNIFICANT ACCOUNTING POLICIES
a.
Basis of presentation of financial statements
Kamada Ltd. and its subsidiaries
1.
These financial statements have been prepared in accordance with International Financial Reporting Standards ("IFRS") as issued
by the International Accounting Standard Board.
2.
Measurement basis:
The Company's consolidated Financial Statements are prepared on a cost basis, except for financial instruments (including
derivatives) at fair value through profit or loss and other comprehensive income such as available for sales financial assets,
employee benefit assets and employee benefit liabilities.
The Company has elected to present profit or loss items using the "function of expense" method.
b.
c.
The Company's operating cycle is one year.
The consolidated financial statements comprise the financial statements of companies that are controlled by the Company (subsidiaries).
Control is achieved when the Company is exposed, or has rights, to variable returns from its involvement with the investee and has the
ability to affect those returns through its power over the investee. The consolidation of the financial statements commences on the date
on which control is obtained and ends when such control ceases.
The financial statements of the Company and of the subsidiaries are prepared as of the same dates and periods. The consolidated
financial statements are prepared using uniform accounting policies by all companies in the Group. Significant intercompany balances
and transactions and gains or losses resulting from intercompany transactions are eliminated in full in the consolidated financial
statements.
d.
Functional currency, presentation currency and foreign currency
1.
Functional currency and presentation currency
The consolidated financial statements are presented in U.S. dollars, which is the Company's functional and presentation currency.
2.
Transactions, assets and liabilities in foreign currency
Transactions denominated in foreign currency are recorded on initial recognition at the exchange rate at the date of the
transaction. After initial recognition, monetary assets and liabilities denominated in foreign currency are translated at the end of
each reporting period into the functional currency at the exchange rate at that date. Exchange differences are recognized in profit
or loss. Non-monetary assets and liabilities measured at cost in a foreign currency are translated at the exchange rate at the date of
the transaction.
F - 9
Notes to the Consolidated Financial Statements
NOTE 2: - SIGNIFICANT ACCOUNTING POLICIES (CONT.)
3.
Index-linked monetary items
Kamada Ltd. and its subsidiaries
Monetary assets and liabilities linked to the changes in the Israeli Consumer Price Index ("Israeli CPI") are adjusted at the
relevant index at the end of each reporting period according to the terms of the agreement.
e.
Cash equivalents
Cash equivalents are considered as highly liquid investments, including unrestricted short-term bank deposits with an original maturity
of three months or less from the date of purchase.
f.
Short-term investments:
Short-term bank deposits with a maturity of more than three months from the deposit date but less than one year, available for sale
financial investments (debentures) and financial assets held for trading at fair value through profit or loss (debentures and investment in
equity).
g.
Allowance for doubtful accounts
The allowance for doubtful accounts is determined in respect of specific debts whose collection, in the opinion of the Company's
management, is doubtful. Impaired debts are derecognized when they are assessed as uncollectible. As of December 31, 2016 and 2015,
the balance of allowance for doubtful accounts was $399 thousands and $398 respectively.
h.
Inventory
Inventories are measured at the lower of cost and net realizable value. The cost of inventories comprises costs of purchase and costs
incurred in bringing the inventories to their present location and condition. Net realizable value is the estimated selling price in the
ordinary course of business less the estimated costs of completion and the estimated selling costs.
Cost of inventories is determined as follows:
Raw materials
Work in process
- At cost of purchase using the first-in, first-out method.
- At the average costs for the quarter of manufacturing including materials, labor and other
direct and indirect manufacturing costs on the basis of each batch.
Finished products
- At the average costs for quarter of manufacturing including materials, labor and other direct
and indirect manufacturing costs on the basis of each batch.
Purchased products and goods
- On a "first in – first out" basis.
F - 10
Notes to the Consolidated Financial Statements
NOTE 2: - SIGNIFICANT ACCOUNTING POLICIES (CONT.)
Kamada Ltd. and its subsidiaries
The Company periodically evaluates the condition and age of inventories and makes provisions for inventories with a lower market
value or which are slow moving.
i.
Revenue recognition
Revenues are recognized in profit or loss when the revenues can be measured reliably, it is probable that the economic benefits
associated with the transaction will flow to the Company and the costs incurred or to be incurred in respect of the transaction can be
measured reliably. In cases where the Company operates as a principal supplier and it exposed to the risks and rewards associated with
the transaction, revenues are presented on a gross basis. Revenues are measured at the fair value of the consideration received less any
trade discounts, volume rebates and returns.
The specific criteria for revenue recognition for the following types of revenues are:
- Revenues from the sale of goods are recognized when all the significant risks and rewards of ownership of the goods have passed
to the buyer and the seller no longer retains continuing managerial involvement. The delivery date is usually the date on which
ownership passes.
- Agreements with multiple elements provide for varying consideration terms, such as upfront payments and milestone payments.
Revenues from such agreements that do not contain a general right of return and that are composed of multiple elements such as
distribution exclusivity, license and services are allocated to the different elements and are recognized in respect of each element
separately. An element constitutes a separate accounting unit if and only if it has a separate value to the customer. Revenue from
the different element is recognized when the criteria for revenue recognition have been met and only to the extent of the
consideration that is not contingent upon completion or performance of future services in the contract.
- Revenue from milestone events stipulated in the agreements is recognized upon the occurrence of a substantive element specified
in the agreement or as a measure of substantive progress towards completion.
In events that the Company receives at no charge raw material, that is required for manufacturing one of the Company's products,
the Company recorded the fair value of the raw material used and sold as revenue and charged the same fair value to cost of
revenue.
Deferred revenues
Deferred revenues include unearned amounts received from customers not yet recognized as revenues.
F - 11
Notes to the Consolidated Financial Statements
NOTE 2: - SIGNIFICANT ACCOUNTING POLICIES (CONT.)
j.
Taxes on income
Kamada Ltd. and its subsidiaries
Taxes on income in profit or loss comprise current and deferred taxes. Current or deferred taxes are recognized in profit or loss, except to
the extent that the tax arises from items which are recognized directly in other comprehensive income or in equity.
1.
Current taxes:
The current tax liability is measured using the tax rates and tax laws that have been enacted or substantively enacted by the end of
reporting period as well as adjustments required in connection with the tax liability in respect of previous years.
2.
Deferred taxes:
Deferred taxes are computed in respect of temporary differences between the carrying amounts in the financial statements and the
amounts attributed for tax purposes.
Deferred taxes are measured at the tax rates that are expected to apply when the asset is realized or the liability is settled, based
on tax laws that have been enacted or substantively enacted by the end of the reporting period.
Deferred tax assets are reviewed at the end of each reporting period and reduced to the extent that it is not probable that they will
be utilized. Temporary differences for which deferred tax assets had not been recognized are reviewed at the end of each
reporting period and a respective deferred tax asset is recognized to the extent that their utilization is probable.
Deferred taxes are offset in the statement of financial position if there is a legally enforceable right to offset a current tax asset
against a current tax liability and the deferred taxes relate to the same taxpayer and the same taxation authority.
k.
Leases
The Group as lessee:
1.
Finance lease
Finance leases transfer to the Company substantially all the risks and benefits incidental to ownership of the leased asset. At the
commencement of the lease term, the leased assets are measured at the fair value of the leased asset or, if lower, at the present
value of the minimum lease payments.
The leased asset is depreciated over the shorter of the lease term and the expected life of the leased asset.
F - 12
Notes to the Consolidated Financial Statements
NOTE 2: - SIGNIFICANT ACCOUNTING POLICIES (CONT.)
2.
Operating lease
Kamada Ltd. and its subsidiaries
Lease agreements are classified as an operating lease if they do not transfer substantially all the risks and benefits incidental to
ownership of the leased asset. Lease payments are recognized as an expense in profit or loss on a straight-line basis over the lease
term.
l.
Property, plant and equipment
Property, plant and equipment are measured at cost, including directly attributable costs, less accumulated depreciation, accumulated
impairment losses and any related investment grants and excluding day-to-day servicing expenses. Cost includes spare parts and
auxiliary equipment that can be used only in connection with the plant and equipment.
The cost of self-constructed assets includes the cost of materials, direct labor costs as
well as any costs directly attributable to bringing the asset to the location and condition necessary for it to operate in the manner
intended by management.
Depreciation is calculated on a straight-line basis over the useful life of the assets at annual rates as follows:
Buildings
Machinery and equipment
Vehicles
Computers, equipment and office furniture
Leasehold improvements
%
2.5-4
10-20
15
6-33
(*)
Mainly %
4
15
15
33
18
(*) Leasehold improvements are depreciated on a straight-line basis over the shorter of the lease term (including the extension option
held by the Company and intended to be exercised) and the expected life of the improvement.
The useful life, depreciation method and residual value of an asset are reviewed at least each year-end and any changes are accounted for
prospectively as a change in accounting estimate.
Depreciation of an asset ceases at the earlier of the date that the asset is classified as held for sale and the date that the asset is
derecognized.
m.
Intangible assets
Separately acquired intangible assets with finite useful life, are measured on initial recognition at cost. Intangible assets are amortized
over their useful life using the straight-line method and reviewed for impairment whenever there is an indication that the asset may be
impaired.
F - 13
Notes to the Consolidated Financial Statements
NOTE 2: - SIGNIFICANT ACCOUNTING POLICIES (CONT.)
Research and development costs
Kamada Ltd. and its subsidiaries
Research expenditures are recognized in profit or loss when incurred. An intangible asset arising from a development project or from the
development phase of an internal project is recognized if the Company can demonstrate the technical feasibility of completing the
intangible asset so that it will be available for use or sale; the Company's intention to complete the intangible asset and use or sell it; the
Company's ability to use or sell the intangible asset; how the intangible asset will generate future economic benefits; the availability of
adequate technical, financial and other resources to complete the intangible asset; and the Company's ability to measure reliably the
expenditure attributable to the intangible asset during its development. Since the Company development projects are often subject to
regulatory approval procedures and other uncertainties, the conditions for the capitalization of costs incurred before receipt of approvals
are not normally satisfied and therefore, development expenditures are recognized in profit or loss when incurred.
Software
The Company's assets include computer systems comprising hardware and software. Software forming an integral part of the hardware
to the extent that the hardware cannot function without the programs installed on it is classified as property, plant and equipment. In
contrast, software that adds functionality to the hardware is classified as an intangible asset.
The useful life of the aforementioned computer systems is five years.
n.
Impairment of non-financial assets
The Company evaluates the need to record an impairment of the carrying amount of non-financial assets whenever events or changes in
circumstances indicate that the carrying amount is not recoverable. If the carrying amount of non-financial assets exceeds their
recoverable amount, the assets are reduced to their recoverable amount.
The recoverable amount is the higher of fair value less costs of sale and value in use. In measuring value in use, the expected future cash
flows are discounted using a pre-tax discount rate that reflects the risks specific to the asset. The recoverable amount of an asset that
does not generate independent cash flows is determined for the cash-generating unit to which the asset belongs.
An impairment loss of an asset, other than goodwill, is reversed only if there have been changes in the estimates used to determine the
asset's recoverable amount since the last impairment loss was recognized. Reversal of an impairment loss, as above, shall not be
increased above the lower of the carrying amount that would have been determined (net of depreciation or amortization) had no
impairment loss been recognized for the asset in prior years and its recoverable amount.
F - 14
Notes to the Consolidated Financial Statements
NOTE 2: - SIGNIFICANT ACCOUNTING POLICIES (CONT.)
o.
Financial instruments
1.
Financial assets
Kamada Ltd. and its subsidiaries
Financial assets within the scope of IAS 39 are initially recognized at fair value plus directly attributable transaction costs, except
for financial assets measured at fair value through profit or loss.
After initial recognition, the accounting treatment of financial assets is based on their classification as follows:
a. Financial assets at fair value through profit or loss
Financial assets held for trading and derivative instruments that do not qualify for hedge accounting. Financial assets are
classified as held for trading if they are acquired for the purpose of selling or repurchasing in the near term.
b. Loans and receivables
The Company has receivables that are financial assets with fixed or determinable payments that are not quoted in an active
market. Loans are presented based on their terms, normally at face value plus direct transaction costs through the
systematic amortization process and less incurred amortization.
c. Available for sale ("AFS") financial investments
AFS financial investments include debt securities. Debt securities in this category are those that are intended to be held for
an indefinite period of time and that may be sold in response to needs for liquidity or in response to changes in the market
conditions.
The Company has classified all marketable securities as short-term, even though the stated maturity date may be one year
or more beyond the current balance sheet date, because it may sell these securities prior to maturity to meet liquidity needs
or as part of risk versus reward objectives.
After initial measurement, AFS financial investments are subsequently measured at fair value with unrealized gains and
losses recognized in other comprehensive income ("OCI") until the investment is derecognized or the investment is
determined to be impaired. Interest earned whilst holding AFS financial investments is reported as financial income.
F - 15
Notes to the Consolidated Financial Statements
NOTE 2: - SIGNIFICANT ACCOUNTING POLICIES (CONT.)
Kamada Ltd. and its subsidiaries
For AFS financial investments, the Company assesses at each reporting date whether there is objective evidence that an
investment is impaired.
For debt instruments classified as AFS financial assets, objective evidence of impairment may arise as a result of one or
more events that have a negative impact on the estimated future cash flows of the asset since the recognition of the asset.
Where there is evidence of impairment, the cumulative loss - measured as the difference between the acquisition cost and
the fair value - is reclassified from other comprehensive income and recognized as an impairment loss in profit or loss. In
a subsequent period, the amount of the impairment loss is reversed if the increase in fair value can be related objectively to
an event occurring after the impairment was recognized. The amount of the reversal, up to the amount of any previous
impairment, is recorded in profit or loss.
2.
Financial liabilities
Financial liabilities within the scope of IAS 39 are initially measured at fair value.
After initial recognition, the accounting treatment of financial liabilities is based on their classification as follows:
a. Financial liabilities measured at amortized cost
Loans, including debentures, are measured based on their terms at amortized cost using the effective interest method
taking into account directly attributable transaction costs.
b.
Financial liabilities measured at fair value through profit or loss
Derivatives, including separated embedded derivatives, are classified as held for trading unless they are designated as
effective hedging instruments.
The group examines the existence of embedded derivative and the need to separate it on the date, the Company becoming
side of the commitment. Revaluation of the need to separate the embedded derivative is done only when there is a change
in the commitment, which impact significantly on the cash flow from the commitment.
F - 16
Notes to the Consolidated Financial Statements
NOTE 2: - SIGNIFICANT ACCOUNTING POLICIES (CONT.)
3.
Fair value
Kamada Ltd. and its subsidiaries
Fair value is the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between
market participants at the measurement date.
A fair value measurement of a non-financial asset takes into account a market participant's ability to generate economic benefits
by using the asset in its highest and best use or by selling it to another market participant that would use the asset in its highest
and best use.
The Company uses valuation techniques that are appropriate in the circumstances and for which sufficient data are available to
measure fair value, maximizing the use of relevant observable inputs and minimizing the use of unobservable inputs.
All assets and liabilities for which fair value is measured or disclosed in the financial statements are categorized within the fair
value hierarchy, described as follows, based on the lowest level input that is significant to the fair value measurement as a whole:
- Level 1 - quoted prices (unadjusted) in active markets for identical assets or liabilities.
- Level 2 - inputs other than quoted prices included within Level 1 that are observable either directly or indirectly.
- Level 3 - inputs that are not based on observable market data (valuation techniques which use inputs that are not based on
observable market data).
4. Offsetting financial instruments
Financial assets and financial liabilities are offset and the net amount is presented in the statement of financial position if there is
a legally enforceable right to set off the recognized amounts and there is an intention either to settle on a net basis or to realize the
asset and settle the liability simultaneously.
The right of set-off must be legally enforceable not only during the ordinary course of business of the parties to the contract but
also in the event of bankruptcy or insolvency of one of the parties. In order for the right of set-off to be currently available, it
must not be contingent on a future event, there may not be periods during which the right is not available, or there may not be any
events that will cause the right to expire.
F - 17
Notes to the Consolidated Financial Statements
NOTE 2: - SIGNIFICANT ACCOUNTING POLICIES (CONT.)
5. De-recognition of financial instruments
a. Financial assets
Kamada Ltd. and its subsidiaries
A financial asset is derecognized when the contractual rights to the cash flows from the financial asset expire or the
Company has transferred its contractual rights to receive cash flows from the financial asset or assumes an obligation to
pay the cash flows in full without material delay to a third party and has transferred substantially all the risks and rewards
of the asset, or has neither transferred nor retained substantially all the risks and rewards of the asset, but has transferred
control of the asset.
b. Financial liabilities
A financial liability is derecognized when it is extinguished, that is when the obligation is discharged or cancelled or
expires. A financial liability is extinguished when the debtor (the Company) discharges the liability by paying in cash,
other financial assets, goods or services or is legally released from the liability.
p.
Derivative financial instruments designated as hedges
The Company enters into contracts for derivative financial instruments such as forward currency contracts and cylinder strategy in
respect of foreign currency to hedge risks associated with foreign exchange rates fluctuations. Such derivative financial instruments are
recognized at fair value.
At the inception of a hedge relationship, the Company formally designates and documents the hedge relationship to which the Company
wishes to apply hedge accounting and the risk management objective and strategy for undertaking the hedge. The hedge effectiveness is
assessed at the end of each reporting period.
Cash flow hedges
The effective portion of the gain or loss on the hedging instrument is recognized as other comprehensive income (loss), while any
ineffective portion is recognized immediately in profit or loss.
Amounts recognized as other comprehensive income (loss) are reclassified to profit or loss when the hedged transaction affects profit or
loss, such as when the hedged income or expense is recognized or when a forecast payment occurs.
If the forecast transaction or firm commitment is no longer expected to occur, amounts previously recognized in equity are reclassified
to profit or loss. If the hedging instrument expires or is sold, terminated or exercised, or if its designation as a hedge is revoked, amounts
previously recognized in equity remain in equity until the forecast transaction or firm commitment occurs.
F - 18
Notes to the Consolidated Financial Statements
NOTE 2: - SIGNIFICANT ACCOUNTING POLICIES (CONT.)
q.
Provisions
Kamada Ltd. and its subsidiaries
A provision in accordance with IAS 37 is recognized when the Group has a present (legal or constructive) obligation as a result of a past
event, it is expected to require the use of economic resources to clear the obligation and a reliable estimate can be made of it.
r.
Employee benefit liabilities
The Company has several employee benefit plans:
1.
Short-term employee benefits
Short-term employee benefits include salaries, paid annual leave, paid sick leave, recreation and social security contributions and
are recognized as expenses as the services are rendered. A liability in respect of a cash bonus or a profit-sharing plan is
recognized when the Company has a legal or constructive obligation to make such payment as a result of past service rendered by
an employee and a reliable estimate of the amount can be made.
2.
Post-employment benefits
The plans are normally financed by contributions to insurance companies and classified as defined contribution plans or as
defined benefit plans.
The Company has defined contribution plans pursuant to Section 14 to the Severance Pay Law under which the Group pays fixed
contributions and will have no legal or constructive obligation to pay further contributions if the fund does not hold sufficient
amounts to pay all employee benefits relating to employee service in the current and prior periods.
Contributions to the defined contribution plan in respect of severance or retirement pay are recognized as an expense when
contributed concurrently with performance of the employee's services.
In addition the Company operates a defined benefit plan in respect of severance pay pursuant to the Severance Pay Law.
According to the Law, employees are entitled to severance pay upon dismissal or retirement. The liability for termination of
employment is measured using the projected unit credit method. The amounts are presented based on discounted expected future
cash flows using a discount rate determined by reference to market yields at the reporting date on high quality corporate bonds
that are linked to the Consumer Price Index with a term that is consistent with the estimated term of the severance pay obligation.
In respect of its severance pay obligation to certain of its employees, the Company makes current deposits in pension funds and
insurance companies ("the plan assets"). Plan assets comprise assets held by a long-term employee benefit fund or qualifying
insurance policies. Plan assets are not available to the Company's own creditors and cannot be returned directly to the Company.
F - 19
Notes to the Consolidated Financial Statements
NOTE 2: - SIGNIFICANT ACCOUNTING POLICIES (CONT.)
Kamada Ltd. and its subsidiaries
The liability for employee benefits shown in the statement of financial position reflects the present value of the defined benefit
obligation less the fair value of the plan assets.
Re-measurements of the net liability are recognized in other comprehensive income in the period in which they occur.
s.
Share-based payment transactions
The Company's employees and other service providers are entitled to remuneration in the form of equity-settled share-based payment
transactions.
Equity-settled transactions
The cost of equity-settled transactions (options and restricted shares) with employees is measured at the fair value of the equity
instruments granted at grant date. The fair value of options is determined using a standard option pricing model. The fair value of
restricted shares is determined using a the share price at the grant date.
As for other service providers, the cost of the transactions is measured at the fair value of the goods or services received as consideration
for equity instruments. In cases where the fair value of the goods or services received as consideration of equity instruments cannot be
measured, they are measured by reference to the fair value of the equity instruments granted.
The cost of equity-settled transactions is recognized in profit or loss together with a corresponding increase in equity during the period
which the performance and/or service conditions are to be satisfied ending on the date on which the relevant employees become entitled
to the award ("the vesting period"). The cumulative expense recognized for equity-settled transactions at the end of each reporting period
until the vesting date reflects the extent to which the vesting period has expired and the Company’s best estimate of the number of equity
instruments that will ultimately vest.
No expense is recognized for awards that do not ultimately vest, except for awards where vesting is conditional upon a market condition,
which are treated as vesting irrespective of whether the market condition is satisfied, provided that all other vesting conditions (service
and/or performance) are satisfied.
If the Company modifies the conditions on which equity-instruments were granted, an additional expense is recognized for any
modification that increases the total fair value of the share-based payment arrangement or is otherwise beneficial to the employee/other
service provider at the modification date.
F - 20
Kamada Ltd. and its subsidiaries
Notes to the Consolidated Financial Statements
NOTE 2: - SIGNIFICANT ACCOUNTING POLICIES (CONT.)
t.
Income (loss) per Share
Income (loss) per share is calculated by dividing the income (loss) attributable to Company shareholders by the weighted number of
outstanding ordinary shares during the period. Potential ordinary shares are only included in the calculation of diluted income (loss) per
share when their impact dilutes the income (loss) per share. Furthermore, potential ordinary shares converted during the period are
included under diluted income (loss) per share only until the conversion date, and from that date on are included under basic income
(loss) per share.
NOTE 3: - SIGNIFICANT ACCOUNTING JUDGMENTS, ESTIMATES AND ASSUMPTIONS USED IN THE PREPARATION OF THE
FINANCIAL STATEMENTS
Judgments
Revenue
The Company assesses the criteria for recognition of revenue related to up-front payments and multiple components as outlined by IAS
18, Revenue. Judgment is necessary to determine over which period the Company will satisfy its obligations related to up-front
payments and when components can be recognized separately and the allocation of the related consideration to each component. For
additional information, refer to Note 18a.
Estimates and assumptions
The key assumptions made in the financial statements concerning uncertainties at the end of the reporting period and the critical
estimates computed by the Company that may result in a material adjustment to the carrying amounts of assets and liabilities within the
next financial year are discussed below.
- Legal claims
In estimating the likelihood of outcome of legal claims filed against the Company and its investees, the Company relies on the
opinion of its legal counsel. These estimates are based on the legal counsel's best professional judgment, taking into account the stage
of proceedings and historical legal precedents in respect of the different issues. Since the outcome of the claims will be determined in
courts, the results could differ from these estimates.
- Pensions and other post-employment benefits
The liability in respect of post-employment defined benefit plans is determined using actuarial valuations. The actuarial valuation
involves making assumptions about, among others, discount rates, expected rates of return on assets, future salary increases and
mortality rates. Due to the long-term nature of these plans, such estimates are subject to significant uncertainty.
F - 21
Notes to the Consolidated Financial Statements
Kamada Ltd. and its subsidiaries
NOTE 3: - SIGNIFICANT ACCOUNTING JUDGMENTS, ESTIMATES AND ASSUMPTIONS USED IN THE PREPARATION OF THE
FINANCIAL STATEMENTS(CONT.)
- Determining the fair value of share-based payment transactions
The fair value of share-based payment transactions is determined using an acceptable option pricing model.
The assumptions used in the model include the share price, exercise price, expected volatility, exercise multiple, expected life,
expected dividend and risk-free interest rate.
- Provisions for clinical trial and related expenses
Accrued expenses costs for clinical trial activities performed by third parties, are based on estimates on the progress of completion of
the clinical trials or services, as of the end of each reporting period, pursuant to the contract with the third parties, and the agreed
upon fee to be paid for such services.
- Capitalization of Inventory costs
We capitalize inventory produced for commercial sale, including costs incurred prior to regulatory approval but subsequent to the
filing of a regulatory request when the Company has determined that the inventory has probable future economic benefit. Inventory
is not capitalized prior to completion of a phase III clinical trial. For products with an approved indication, raw materials and
purchased drug product associated with development programs are included in inventory and charged to research and development
expense when consumed. For products without an approved indication, drug product is charged to research and development expense
upon final quality release.
NOTE 4: -
DISCLUSURE OF NEW IFRS IN THE PERIOD.
a.
IFRS 15 – Revenues from contracts with customers
The standard outlines a single comprehensive model for entities to use in accounting for revenue arising from contracts with customers
and supersedes most current revenue recognition guidance, including industry-specific guidance. The core principle of the new standard
is for companies to recognize revenue to depict the transfer of goods or services to customers in amounts that reflect the consideration
(that is, payment) to which the Company expects to be entitled in exchange for those goods or services. The new standard also will result
in enhanced disclosures about revenue, provide guidance for transactions that were not previously addressed comprehensively (for
example, service revenue and contract modifications) and improve guidance for multiple-element arrangements.
IFRS 15 is to be applied retrospectively for annual periods beginning on or after January 1, 2018. Early adoption is permitted. IFRS 15
allows an entity to choose to apply a modified retrospective approach. During 2016, the Company performed a preliminary assessment
of IFRS 15, which is subject to changes arising from a more detailed ongoing analysis
F - 22
Notes to the Consolidated Financial Statements
NOTE 4: -
DISCLUSURE OF NEW IFRS IN THE PERIOD (CONT.)
Kamada Ltd. and its subsidiaries
The Company is in the business of sale of plasma-derived therapeutics products and distribution in Israel of drugs manufacture by other
companies. The products are sold on their own in separate identified contracts with customers. In addition, the Company received certain
milestone and advances from Commercialization, Distribution and License Agreements with strategic partners.
The Company performed the following preliminary assessment of IFRS 15:
(1) Sale of goods
Application of the IFRS 15 to contracts with customers in which the sale of product is generally expected to be the only performance
obligation is not expected to have any impact on the Company’s profit or loss following implementation of IFRS 15. The Company
expects the revenue recognition to occur at a point in time when control of the asset is transferred to the customer, generally on delivery
of the goods.
In preparing for IFRS 15, the Company is considering the following:
(i) Variable consideration
Some contracts with customers provide a right of return, trade discounts or volume rebates. Currently, the Company recognizes revenue
from the sale of goods measured at the fair value of the consideration received or receivable, net of returns and allowances, trade
discounts and volume rebates. If revenue cannot be reliably measured, the Company defers revenue recognition until the uncertainty is
resolved. Such provisions give rise to variable consideration under IFRS 15, which will be required to be estimated at contract inception.
IFRS 15 requires that the variable consideration be estimated conservatively to prevent over-recognition of revenue.
The Company continues to assess individual contracts to determine the estimated variable consideration and related constraint. The
Company is evaluating the possible impact of IFRS 15 but is presently unable to assess its effect, if any, on the financial statements.
(2) Upfront and milestone payments
Agreements with strategic partners which include upfront and milestone payments contains a performance obligations that are satisfied
over time given that the customer simultaneously receives and consumes the benefits provided by the Company. Currently, the Company
defers the upfront payments and recognizes revenue over time by reference to the stage of completion.
Under IFRS 15, the Company would continue to recognize revenue for upfront payments over time rather than at a point of time and the
Company is evaluating the possible impact of IFRS 15 but is presently unable to assess its effect, if any, on the financial statements.
(3) Presentation and disclosure requirements
IFRS 15 provides presentation and disclosure requirements, which are more detailed than under current IFRS. The presentation
requirements represent a significant change from current practice and may significantly expand the disclosures required in Company’s
financial statements. Many of the disclosure requirements in IFRS 15 are completely new. In 2016 the Company started testing the
internal controls, policies and procedures necessary to collect and disclose the required information.
F - 23
Notes to the Consolidated Financial Statements
NOTE 4: -
DISCLUSURE OF NEW IFRS IN THE PERIOD (CONT.)
b.
IFRS 9 - Financial Instruments
Kamada Ltd. and its subsidiaries
In July 2014, the IASB completed the final element of its comprehensive response to the financial crisis by issuing IFRS 9 Financial
Instruments. The package of improvements introduced by IFRS 9 includes a logical model for classification and measurement, a single,
forward-looking ‘expected loss’ impairment model and a substantially-reformed approach to hedge accounting.
IFRS 9 is to be applied for annual periods beginning on January 1, 2018. Early adoption is permitted.
The Company is evaluating the possible impact of IFRS 9 but is presently unable to assess its effect, if any, on the financial statements.
c.
IFRS 16 – Leases
In January 2016, the IASB issued IFRS 16, Leases. IFRS 16, that replaces IAS
17, Leases, will only imply insignificant changes to the accounting for lessors. For lessees, the accounting will change significantly, as
all leases (except short term leases and small asset leases) will be recognized on balance. Initially, the lease liability and the right-of-use
asset is measured at the present value of future lease payments (defined as economically unavoidable payments). The right-of-use asset
is subsequently depreciated in a similar way to other assets such as tangible assets, i.e. typically in a straight-line over the lease term.
The new Standard is effective for annual periods beginning on or after January 1, 2019. Earlier application is permitted provided that
IFRS 15, "Revenue from Contracts with Customers", is applied concurrently.
The Company is evaluating the possible impact of IFRS 16 but is presently unable to assess its effect, on the financial statements.
d.
IAS 12 – Taxes on income amendments
The IAS 12 amendments that were published in January 2016 clarify the accounting treatment in recognizing deferred tax assets from
carry forward losses. The amendments clarify that –
a. Negative differences between the book value and tax value of an asset that is being measured at its fair value, create deductible
temporary differences regardless the way that the asset is eventually settled.
b. Future expected taxable income estimates may include the settlement of certain assets at amount that is higher than such asset's book
value, if there is sufficient evidence that the settlement is expectable.
c.
In order to evaluate whether an entity will have sufficient taxable income in the future, a comparison must be made between
deductible temporary differences and to taxable income that excludes tax deductions created as a result of reversal of those
deductible temporary differences.
F - 24
Notes to the Consolidated Financial Statements
NOTE 4: -
DISCLUSURE OF NEW IFRS IN THE PERIOD (CONT.)
Kamada Ltd. and its subsidiaries
d.
As part of the analysis of utilizing deductible temporary differences against taxable income, tax laws and regulation should be considered
if they limit the taxable income source for that deduction. In the event that tax laws and regulation limit the utilization of carry forward
losses against income from specific source, the evaluation of the deductible temporary difference will be performed together with other
deductible temporary differences from the applicable source.
Amendments to IAS 12 are to be applied retrospectively for annual periods beginning on or after January 1, 2017, or to be applied by
change in the opening balance of the equity.
e.
IAS 7 – Cash flow amendments
The amendments to IAS 7 Statement of Cash Flows require an entity to provide disclosures that enable users of financial statements to
evaluate changes in financial liabilities, including both changes arising from cash flows and non-cash changes. On initial application of
the amendment, entities are not required to provide comparative information for preceding periods. These amendments are effective for
annual periods beginning on or after 1 January 2017, with early application permitted. Application of the amendments will result in
additional disclosures provided by the Company.
NOTE 5: -
CASH AND CASH EQUIVALENTS
Cash and deposits for immediate withdrawal
Cash equivalents in USD deposits (1)
Cash equivalents in NIS deposits (2)
(1)
(2)
The deposits as of December 31, 2016 bear interest of 1.12% per year.
The deposits as of December 31, 2016 and 2015 bear interest of 0.01% per year.
NOTE 6: -
SHORT-TERM INVESTMENTS
Marketable securities (equity and debt) at fair value through profit or loss
Bank deposits in USD (1)
Available for sale debt securities
(1)
The deposits as of December 31, 2016 bear interest of 1.69%- 1.84% per year.
F - 25
December 31,
2016
2015
In thousands
$
7,891 $
2,001
76
4,957
-
90
$
9,968 $
5,047
December 31,
2016
2015
In thousands
$
1,490 $
8,010
9,164
1,425
-
21,834
$
18,664 $
23,259
Notes to the Consolidated Financial Statements
NOTE 7: - TRADE RECEIVABLES, NET
Open accounts:
In NIS
In USD
Checks receivable
Less allowance for doubtful accounts (1)
Trade receivables, net
(1)
Allowance for doubtful accounts:
December 31, 2015
Deductions
December 31, 2016
Kamada Ltd. and its subsidiaries
December 31,
2016
2015
In thousands
$
9,326 $
10,816
20,142
10,294
12,771
23,065
45
404
20,187
23,469
(399)
(398)
$
19,788 $
23,071
$
$
(398)
1
(399)
An analysis of past due but not impaired trade receivables with reference to reporting date:
Neither past
due nor
impaired
Up to
30 Days
Past due trade receivables with aging of
60-90
30-60
Days
Days
In thousands
90-120
Days
Over
120 days
Total
December 31, 2016
$
17,769 $
1,891 $
24 $
43 $
December 31, 2015
$
20,022 $
2,212 $
376 $
4 $
6 $
- $
10 $
19,743
53 $
22,667
F - 26
Notes to the Consolidated Financial Statements
NOTE 8: - OTHER ACCOUNTS RECEIVABLES
Materials for clinical trials and inventory designated for R&D activities
Prepaid expenses
Government authorities
Receivables for unpaid interest
Financial derivatives, net
Other
NOTE 9: – INVENTORIES
Finished products
Purchased products
Work in progress
Raw materials
Kamada Ltd. and its subsidiaries
December 31,
2016
2015
In thousands
$
1,229 $
1,057
374
82
-
321
796
875
905
241
34
30
$
3,063 $
2, 881
December 31,
2016
2015
In thousands
$
6,542 $
5,607
6,227
7,218
10,583
6,365
4,487
4,901
$
25,594 $
26,336
(1)
During the years 2016, 2015 and 2014, the Company recognized, at cost of revenues, as an expense for inventories carried at net
realizable totaled of $0.5 million, $0.5 million, and less than $0.1 million, respectively.
F - 27
Notes to the Consolidated Financial Statements
NOTE 10: – PROPERTY, PLANT AND EQUIPMENT
a.
Composition and movement:
Kamada Ltd. and its subsidiaries
2016
Cost
Land
and Buildings(1)
Machinery
and
Equipment
(1)
Computers,
Equipment
and
Office
Vehicles
Furniture
In thousands
Leasehold
Improvements
Total
Balance at January 1, 2016
Additions
Sale and write-off
$
26,701 $
963
(46)
24,111 $
3,220
(846)
94 $
-
4,576 $
202
(143)
1,079 $
62
(89)
56,561
4,447
(1,125)
Balance as of December 31, 2016
27,618
26,485
94
4,635
1,052
59,884
Accumulated Depreciation
Balance as of January 1, 2016
Depreciation and impairment
Sale and write-off
11,237
1,402
(33)
19,310
1,355
(693)
83
3
3,610
535
(141)
1,012
44
(89)
35,252
3,339
(956)
Balance as of December 31, 2016
12,606
19,972
86
4,004
967
37,635
Depreciated cost as of December 31,
2016
$
15,012 $
6,513 $
8
631 $
85 $
22,249
2015
Cost
Land
and Buildings(1)
Machinery
and
Equipment
(1)
Vehicles
Computers,
Equipment
and Office
Furniture
Leasehold
Improvements
Total
In thousands
Balance at January 1, 2015
Additions
$
26,261 $
440
22,273
$
1,838(2)
94 $
-
4,159 $
417
1,056 $
23
58,843
2,718
Balance as of December 31, 2015
26,701
24,111
94
4,576
1,079
56,561
Accumulated Depreciation
Balance as of January 1, 2015
Depreciation
9,828
1,409
17,929
1,381
78
5
3,235
375
1,004
8
32,074
3,178
Balance as of December 31, 2015
11,237
19,310
83
3,610
1,012
35,252
Depreciated cost as of December
31, 2015
$
15,464 $
4,801
$
11
966 $
67 $
21,309
(1) Including labor costs charged in 2016 and 2015 to the cost of facilities, machinery and equipment in the amount of $510 thousands
and $317 thousands, respectively.
(2) Including borrowing costs of $11 thousands capitalized in 2016 to the cost of machinery and equipment.
F - 28
Notes to the Consolidated Financial Statements
NOTE 10: – PROPERTY, PLANT AND EQUIPMENT (CONT.)
b.
c.
As for liens, refer to Note 19.
Capitalized leasing rights of land from the Israel land administration.
Kamada Ltd. and its subsidiaries
December 31,
2016
2015
In thousands
Under finance lease
$
1,029 $
1,040
The Group has capitalized leasing rights from the Israel Land Administration for an area of 16,880 m² in Beit Kama containing the
Group's structures. The sum attributed to capitalized rights is presented under property, plant and equipment and is depreciated over the
leasing period, which includes the option period.
During 2010, the Company signed an agreement with the Israel Land Administration to consolidate its leasing rights and extend the
lease period to 2058, including an extension option for additional 49 years.
NOTE 11: - OTHER LONG TERM ASSETS
Long term leasing deposits
Intangibles assets, net
December 31,
2016
2015
In thousands
$
$
$
40
330
370
$
35
54
89
Amortization expenses of intangible assets in the amount of $28 thousands and $49 thousands for 2016 and 2015, respectively, are classified
under general and administrative expenses.
NOTE 12: – CURRENT MATURITIES OF LOANS AND CONVERTIBLE DEBENTURE
Long term loans and capital leases
F - 29
Linked to NIS
December 31,
2016
2015
In thousands
412
412
37
37
Notes to the Consolidated Financial Statements
NOTE 13: - TRADE PAYABLES
Open debts mainly in USD
Open debts in NIS
Notes payable
NOTE 14: – OTHER ACCOUNTS PAYABLES
Employees and payroll accruals
Derivatives instruments
Accrued Expenses and Others
NOTE 15: - LONG TERM LIABILITIES
Bank loans
Kamada Ltd. and its subsidiaries
December 31,
2016
2015
In thousands
$
11,187 $
5,038
16,225
52
13,066
3,727
16,793
124
$
16,277 $
16,917
December 31,
2016
2015
In thousands
$
4,135 $
32
1,447
3,338
-
726
$
5,614 $
4,064
During 2016, the Company received loans at an amount of NIS 6,585 thousands ($ 1,701 thousands). The loans will be paid over 60 equal
monthly installments. The loans bear fixed interest rate in the range of 3.15% -3.55%. As for pledges, refer to Note 19.
F - 30
Notes to the Consolidated Financial Statements
NOTE 16: - FINANCIAL INSTRUMENTS
a.
Classification of financial assets and liabilities
The financial assets and financial liabilities in the balance sheet are classified by groups of financial instruments in pursuant to IAS 39:
Kamada Ltd. and its subsidiaries
Financial assets
Financial assets at fair value:
Marketable securities (equity and debt) – through profit or loss
Financial assets at fair value through
other comprehensive income-
Available for sale debt securities-
Derivative instruments
Financial assets at cost-
Short term bank deposits
Financial liabilities
Financial liabilities at fair value through profit or loss:
Derivatives instruments
Financial liabilities measured at amortized cost:
Bank loans and capital leases
b.
Financial risk factors
December 31,
2016
2015
In thousands
$
1,490 $
1,425
9,164
-
21,834
34
8,010
18,664 $
-
23,293
32 $
1,776
1,808 $
-
188
188
$
$
$
The Company's activities expose it to various financial risks, such as market risk (foreign currency risk, interest rate risk and price risk),
credit risk and liquidity risk. The Company's comprehensive risk management plan focuses on activities that reduce to a minimum any
possible adverse effects on the Company's financial performance. The Company utilized derivatives to hedge certain exposures to risk.
Risk management is the responsibility of the Company CEO and CFO, in accordance with the policy approved by the Board of
Directors. The Board of Directors provides principles for the overall risk management.
1. Market risks
a)
Foreign exchange risk
The Company operates in an international environment and is exposed to foreign exchange risk resulting from the
exposure to different currencies, mainly the NIS. Foreign exchange risks arise from recognized assets and liabilities
denominated in a foreign currency other than the functional currency, such as customers, suppliers and credit.
F - 31
Notes to the Consolidated Financial Statements
NOTE 16: - FINANCIAL INSTRUMENTS (CONT.)
Kamada Ltd. and its subsidiaries
As of December 31, 2016, the Company has a position in derivatives intended to hedge decreases in the exchange rate of
the USD vs. the NIS, over excess receipts in the NIS expected for 2016 (see also f. below).
b)
Price risk
As of December 31, 2016, the Company has financial instruments, shares and debentures, classified as financial assets
measured at fair value through profit or loss and Available for sale financial investments, for which the Company is
exposed to risk of fluctuations in the security price that is determined by reference to the quoted market price.
2.
Credit risk
Financial instruments that potentially subject the Company to concentrations of credit risk consist principally of cash and cash
equivalents, short-term bank deposits, marketable securities, trade receivables and foreign currency derivative contracts.
a)
Trade receivables:
Average credit days for trade receivables are 72 days. The Company regularly monitors the credit extended to its
customers and their general financial condition, and, when necessary, requires collateral as security for these debts such as
letters of creditor and down payments. In addition, the Company partially insures its overseas sales with foreign trade risk
insurance.
The Company keeps constant track of customer debt and the Financial Statements include an allowance for doubtful
accounts that adequately reflects, in the Company's assessment, the loss embodied in the debts the collection of which is in
doubt.
The Company’s maximum exposure to credit risk for the components of the statement of financial position as of December
31, 2016 and 2015 is the carrying amount of trade receivables.
b)
Cash and cash equivalent and short term investments:
The Company holds cash, cash equivalents, short term deposits and other financial instruments at a major financial
institution in Israel. In accordance with Company policy, evaluations of the relative strength of credit of the various
financial institutions are made on an ongoing basis.
Short-term investments include short-term deposits with low risk for a period less than one year. The Company’s
marketable securities consist of investment-grade corporate bonds, U.S. and Israeli Governments bonds and equity
investments. The Company’s investment policy, limits the amount the Company may invest in any one type of investment
or issuer and the average maturities of the bond portfolio, thereby reducing credit risk concentrations.
F - 32
Notes to the Consolidated Financial Statements
NOTE 16: - FINANCIAL INSTRUMENTS (CONT.)
Kamada Ltd. and its subsidiaries
The Company has not experienced any significant losses on its short term investments.
c) Foreign currency derivative contracts:
The Company is exposed to foreign currency exchange movements, primarily in Israel. Consequently, it enters into various
foreign currency exchange contracts with major financial institutions.
3.
Liquidity risk
The table below summarizes the maturity profile of the Company's financial liabilities based on contractual undiscounted
payments:
December 31, 2016
Less than
one year
1 to 2
2 to 3
In thousands
3 to 5
Total
Trade payables
Other accounts payables
Long term loans and capital leases (including
interest)
$
16,277
5,614
-
-
-
-
- $
-
16,277
5,614
464
461
429
549
1,903
$
22,355 $
461 $
429 $
549 $
23,794
December 31, 2015
Less than
one year
1 to 2
2 to 3
In thousands
3 to 5
Total
Trade payables
Other accounts payables
Long term loan (including interest)
$
16,917
4,064
43
-
-
43
-
-
43
- $
-
75
16,917
4,064
204
$
21,024 $
43 $
43 $
75 $
21,185
F - 33
Notes to the Consolidated Financial Statements
NOTE 16: - FINANCIAL INSTRUMENTS (CONT.)
c.
Fair value
Kamada Ltd. and its subsidiaries
The following table demonstrates the carrying amount and fair value of the financial instruments presented in the financial statements
not at fair value:
Financial liabilities
Bank loans and capital leases
Carrying Amount
December 31,
Fair Value
December 31,
2016
2015
2016
2015
In thousands
$
1,776 $
188 $
1,761 $
185
The fair value of the bank loans and capital leases was based on standard pricing valuation model such as DCF which considers the
present value of future cash flows discounted at the interest rate that reflects market conditions (Level 3).
The carrying amount of cash and cash equivalents, short term bank deposits, trade and other receivables, trade and other payables
approximates their fair value, due to the short term maturities of the financial instruments.
F - 34
Notes to the Consolidated Financial Statements
NOTE 16: - FINANCIAL INSTRUMENTS (CONT.)
d.
Classification of financial instruments by fair value hierarchy
Financial assets measured at fair value:
December 31, 2016
Marketable securities at fair value through profit or loss:
Equity shares
Mutual funds
Debt securities (corporate and government)
Available for sale debt securities (corporate and government)
December 31, 2015
Marketable securities at fair value through profit or loss:
Equity shares
Mutual funds
Debt securities (corporate and government)
Derivatives instruments
Available for sale debt securities (corporate and government)
Financial liabilities measured at fair value:
December 31, 2016
Derivatives instruments
Kamada Ltd. and its subsidiaries
Level 1
Level 2
In thousands
$
$
$
$
70 $
388
1,032
-
1,490 $
-
-
-
9,164
9,164
Level 1
Level 2
In thousands
67 $
365
993
-
-
1,425 $
-
-
-
34
21,834
21,868
Level 1
Level 2
In thousands
$
- $
32
During 2016 there was no transfer due to the fair value measurement of any financial instrument from Level 1 to Level 2, and
furthermore, there were no transfers to or from Level 3 due to the fair value measurement of any financial instrument.
F - 35
Notes to the Consolidated Financial Statements
NOTE 16: - FINANCIAL INSTRUMENTS (CONT.)
Sensitivity test to changes in market price of listed Securities
Gain (loss) from change:
5% increase in market price
5% decrease in market price
Sensitivity test to changes in foreign currency:
Gain (loss) from change:
5% increase in NIS
5% decrease in NIS
5% increase in Euro
5% decrease in Euro
Sensitivity tests and principal work assumptions
Kamada Ltd. and its subsidiaries
December 31,
2016
2015
In thousands
$
$
$
$
$
$
535 $
(535) $
1,163
(1,163)
19 $
(19) $
(184) $
184 $
300
(300)
(147)
147
The selected changes in the relevant risk variables were determined based on management's estimate as to reasonable possible changes
in these risk variables.
The Company has performed sensitivity tests of principal market risk factors that are liable to affect its reported operating results or
financial position. The sensitivity tests present the profit or loss in respect of each financial instrument for the relevant risk variable
chosen for that instrument as of each reporting date. The test of risk factors was determined based on the materiality of the exposure of
the operating results or financial condition of each risk with reference to the functional currency and assuming that all the other variables
are constant.
e.
Linkage terms of financial liabilities by groups of financial instruments pursuant to IAS 39:
In NIS:
Bank loans and capital leases measured at amortized cost
F - 36
December 31,
In thousands
2016
2015
$
1,776 $
188
Kamada Ltd. and its subsidiaries
Notes to the Consolidated Financial Statements
NOTE 16: - FINANCIAL INSTRUMENTS (CONT.)
f.
Derivatives and hedging:
Derivatives instruments not designated as hedging
The Company has foreign currency forward contracts designed to protect it from exposure to fluctuations in exchange rates in respect of
its transactions. Foreign currency forward contracts are not designated as cash flow hedges, fair value or net investment in a foreign
operation, and they are signed for identity for which the Company exposure to foreign currency for transactions. These derivatives are
not considered as hedge accounting. As of December 31, 2016 the fair value of the derivative instruments not designated as hedging was
a liability of $5.4 thousands. The open transactions for those derivatives were in an amount of $8.1 million.
Cash flow hedges:
As of December 31, 2016, the Company held NIS/USD hedging contracts (cylinder contracts) designated as hedges of expected
future salaries expenses and for expected future purchases from Israeli suppliers.
The main terms of these positions were set to match the terms of the hedged items. As of December 31, 2016 the fair value of the
derivative instruments designated as hedge accounting was a liability of $27 thousands. The open transactions for those derivatives were
in an amount of $1.0 million.
Cash flow hedges of the expected salaries expenses in December 31, 2016 was estimated as highly effective and accordingly a net
unrecognized loss was recorded in other comprehensive loss in the amount of $29 thousand.
NOTE 17: - EMPLOYEE BENEFIT LIABILITIES, NET
Employee benefits consist of short-term benefits and post-employment benefits.
a.
Post-employment benefits:
According to the labor laws and Severance Pay Law in Israel, the Company is required to pay compensation to an employee upon
dismissal or retirement or to make current contributions in defined contribution plans pursuant to Section 14 to the Severance Pay Law,
as specified below. The Company's liability is accounted for as a post-employment benefit. The computation of the Company's employee
benefit liability is made in accordance with a valid employment contract or a collective employees agreement based on the employee's
salary and employment term which establish the entitlement to receive the compensation.
The post-employment employee benefits are normally financed by contributions classified as defined benefit plans, as detailed below:
1.
Defined contribution deposit:
The Company’s agreements with part of its employees are in accordance with section 14 of the Israeli Severance Pay Law.
Payments in accordance with Section 14 release the Company from any future severance liabilities in respect of those employees.
Some of the employees are partly under Section 14 and partly under the defined benefit deposit. The expenses for the defined
benefit deposit in 2016, 2015 and 2014 were $ 669 thousands, $ 702 thousands and $453 thousands, respectively.
F - 37
Notes to the Consolidated Financial Statements
NOTE 17: - EMPLOYEE BENEFIT LIABILITIES, NET (CONT.)
2.
Defined benefit plans:
Kamada Ltd. and its subsidiaries
The Company accounts for the payment of compensation, as a defined benefit plan for which an employee benefit liability is
recognized and for which the Company deposits amounts in central severance pay funds and in qualifying insurance policies.
3.
Expenses recognized in comprehensive income (loss):
2016
Year Ended
December 31,
2015
In thousands
2014
Current service cost
Interest expenses, net
Current service cost (income) due to the transfer of real yield from the compensation
$
component to the royalties' component in executive insurance policies before 2004.
$
Total employee benefit expenses
359 $
20
5
384 $
391 $
18
(10)
399 $
Actual (negative) return on plan assets
$
22 $
(12) $
The expenses are presented in the Statement of Comprehensive income (loss) as follows
Cost of revenues
Research and development
Selling and marketing
General and administrative
F - 38
2016
$
Year Ended
December 31,
2015
In thousands
2014
228 $
62
13
81
209 $
90
18
82
$
384 $
399 $
455
23
(9)
469
295
244
101
14
110
469
Notes to the Consolidated Financial Statements
NOTE 17: - EMPLOYEE BENEFIT LIABILITIES, NET (CONT.)
4.
The plan assets (liabilities), net:
Defined benefit obligation
Fair value of plan assets
Total liabilities, net
5.
Changes in the present value of defined benefit obligation
Balance at January 1,
Interest costs
Current service cost
Benefits paid
Demographic assumptions
Financial assumptions
Past Experience
Currency Exchange
Balance at December 31,
* Represent an amount of less than 1 thousands
** Reclassified
6.
Plan assets
a)
Plan assets
Kamada Ltd. and its subsidiaries
December 31,
2016
2015
In thousands
$
$
(5,235) $
4,513
(722) $
(5,425)
4,638
(787)
2016
2015
In thousands
$
5,425 $
5,496
141
359
(650)
(17)
*
(104)
81
5,235 $
147
390
(471)
(7)
-
**(110)
**(20)
5,425
$
Plan assets comprise assets held by a long-term employee benefit funds and qualifying insurance policies.
F - 39
Notes to the Consolidated Financial Statements
NOTE 17: - EMPLOYEE BENEFIT LIABILITIES, NET (CONT.)
b)
Changes in the fair value of plan assets
Balance at January 1,
Expected return
Contributions by employer
Benefits paid
Demographic assumptions
Financial assumptions
Past Experience
Current service cost due to the transfer of real yield from the compensation component to the
royalties component in executive insurance policies before 2004.
Currency exchange
Balance at December 31,
*Reclassified
7.
The principal assumptions underlying the defined benefit plan
Kamada Ltd. and its subsidiaries
2016
2015
In thousands
$
4,638 $
4,774
121
311
(522)
1
-
(100)
(5)
69
128
283
(402)
1
-
* (141)
10
*(15)
$
4,513 $
4,638
Discount rate of the plan liability
Future salary increases
2016
2015
%
2014
3.72
2.6
4
4
4.1
4
The sensitivity analyses below have been determined based on reasonably possible changes of the principal assumptions underlying the defined
benefit plan as mentioned above, occurring at the end of the reporting period.
If the discount rate would be one percent higher (lower), the defined benefit obligation would decrease (increase) by $84 thousands ($43
thousands) if all other assumptions were held constant.
If the expected salary growth would increase by 1% the defined benefit obligation would increase by $264 thousands.
F - 40
Notes to the Consolidated Financial Statements
NOTE 18: - CONTINGENT LIABILITIES AND COMMITMENTS
Kamada Ltd. and its subsidiaries
a.
On August 23, 2010, the Company entered into a collaboration agreement with Baxter Healthcare Corporation ("Baxter"), an
international biopharmaceutical company, and specializing, among other things, in the development, manufacture, marketing and sale of
pharmaceutical products. During 2015, Baxter has assigned all its rights under the collaboration agreement to Baxalta US Inc.
("Baxalta") which was acquired in 2016 by Shire plc (“Shire”). (Baxter, Baxalta and Shire will refer as "Shire"). The collaboration
agreement consists of three main agreements (1) the appointment of Shire as the sole distributer of the Company's AAT IV drug
("Glassia") in the United States, Canada, Australia and New Zealand ("the Territory" and "the Distribution Agreement", respectively);
(2) granting licenses to Shire for the use of the Company's knowhow and patents for the production, continued development and sale of
Glassia by Shire ("the License Agreement") in the Territory and (3) an agreement to provide raw materials, produced by Shire, and used
for the production of Glassia ("the Raw Materials Supply Agreement"). Pursuant to the agreements, payments were originally set for the
Company for meeting milestones at a total sum of $45 million, and for Glassia purchases at a minimum sum of $ 60 million over the
first five years from the signing of the Distribution Agreement. In addition, the Company is entitled to royalties at a sum of no less than
$5 million per year, starting from the beginning of the sale of Glassia produced by Shire in accordance with the License Agreement.
Since 2013 and every year thereafter, the parties amended the License Agreement and the Distribution Agreement by extending the
distribution period of minimum purchases of Glassia and the minimum purchase quantity. Prior to the last amendment of the Distribution
Agreement in October 2016, the net sums received in advance were recorded as deferred revenues and were recognized as revenues
according to the actual rate of sales, based on the sales forecast in the Distribution Agreement. Commencing on the latest amendment of
the Distribution Agreement in October 2016 the remaining deferred revenues are recognized on a straight line basis according to Shire’s
minimum purchase commitment in the Distribution Agreement for the remaining period prior to the recent amendment. According to the
latest amendment of the Distribution Agreement, the distribution period is currently expected to end by the end of 2020, with the start of
production by Shire. Non-refundable revenues due to the achievement of milestones are recognized upon reaching the milestone.
Following the last amendment the aggregate minimum revenue for Glassia in the extended agreement for the years 2017-2020 will reach
approximately $237 million and may be expanded to $288 million during that period. As of December 31, 2016, the Company received a
total of $36.5 million for the achievement of certain milestone and advances in respect of the Distribution and License Agreements.
In the case of clinical trials required in the Territory in connection with Glassia, the cost of these experiments apply to Shire and the
Company will participate with such limited extent that may come, under certain conditions, up to $10 million over a period of several
years.
According to the Raw Material Supply Agreement Shire undertook to provide the Company, free of charge, all the quantities of raw
materials required by the Company for manufacturing the Glassia to be sold to Shire for distribution by Shire in accordance with the
Distribution Agreement. In addition, Shire will provide raw material to the Company, for the development, production, sale and
distribution of products by the Company.
F - 41
Notes to the Consolidated Financial Statements
NOTE 18: - CONTINGENT LIABILITIES AND COMMITMENTS (CONT.)
KAMADA LTD. AND ITS SUBSIDIARIES
The agreements expires in 2040, subject to the possibility of earlier termination due to events mentioned in the agreements.
b.
On August 2, 2012, the Company entered into a strategic agreement with CHIESI FARMACEUTICI S. P. A, a fully integrated European
Pharmaceutical company focused on respiratory disease and special care products ("Chiesi"). According to the agreement, Chiesi will be
an exclusive distributor of the AAT inhaled product of the Company for treatment of alpha-1 antitrypsin deficiency ("Product") in
Europe. Chiesi will be responsible for, among other things, product marketing, patients screening and obtaining reimbursement
approvals for the product ("Distribution Agreement"). As part of the Distribution Agreement, the Company shall be entitled to receive
payments of up to $ 60 million, contingent of meeting regulatory and sales milestones. In addition, Chiesi has committed to purchase
products in minimum quantities during a period of five years commencing after receiving reimbursement approvals required. The
agreement is for a period of 12 years from signature.
In August 2012, the Company received a non-refundable upfront payment for the first milestone in the agreement. This amount was
recorded under deferred revenue and revenue is recognized on a straight line basis over the expected period of the relevant phase in the
distribution agreement.
In April 2016, the Company received a non-refundable upfront payment upon the filing of a Marketing Authorization Application
(MAA) with the European Medicines Agency (EMA) for inhaled alpha-1 antitrypsin (AAT) for the treatment of AAT deficiency
(AATD). This amount is recorded under deferred revenue and revenue is recognized on a straight line basis over the expected period of
the relevant phase in the distribution agreement.
As of December 31, 2016, the Company received a total of $9 million for the achievement of the above mentioned upfront payments in
respect of the Distribution Agreement.
c.
The Company has engaged in operating lease agreements for office and storage spaces. These agreements will expire between 2017 and
2026.
Minimum future lease fees for the office and storage spaces as of December 31, 2016 are as follows:
Year 1
Year 2 to 5
Year 6 and thereafter
F - 42
In thousands
$
411
2,767
2,291
5,469
Notes to the Consolidated Financial Statements
NOTE 18: - CONTINGENT LIABILITIES AND COMMITMENTS (CONT.)
KAMADA LTD. AND ITS SUBSIDIARIES
d.
The Company has engaged in operating lease agreements for the vehicles in its possession. These agreements will expire between 2017
and 2019.
Minimum future lease fees for the existing vehicles as of December 31, 2016 are as follows:
Year 1
Year 2
Year 3
$
In thousands
371
243
112
726
e.
f.
h.
In November 2006, an agreement was signed between the Company and a third party on the matter of research and development
collaboration. As part of the agreement, the Company was licensed to use developments made by the third party. Furthermore, the third
party will provide the Company with devices for carrying out the clinical trials, free of charge. In the event that the development is
successful, the Company will pay the third party royalties based on sales of the devices. This obligation on behalf of the Company to pay
royalties shall expire either when the patents expire or 15 years from the first commercial sale, whichever comes last. On the date of the
expiry of the royalty period, the license will become non-exclusive and the Company shall be entitled to use the rights granted to it
pursuant to the agreement without paying royalties or any other compensation. In addition, the third party would pay royalties of the total
net sales exceeding a certain sum, according to a mechanism set in the agreement, until the patent expires or until 15 years pass from the
first date of sale, whichever is earlier.
In February 2008, the parties signed an amendment to the agreement according to which the exclusive global license granted to the
Company was expanded to two additional indications. It was also decided that sales to the additional indications would be added to the
sales of the first two outlines covered by the original agreement. Royalties' payments will be according to the royalty model set in the
original agreement.
In addition, the parties signed a commercialization and supply agreement, which ensures long-term regular supply of the device at the
basis of the collaboration and spare parts of this device.
In August 2007, the Company entered into a long-term agreement with a multinational European company for the purchase of a raw
material used for the development and manufacture of medicines at graded amounts and prices. In addition to the price paid by the
Company for the raw material, the Company will pay the supplier an additional sum upon the sale of the product manufactured from the
raw material in the territories set in the agreement, after receiving regulatory approvals. As of December 31, 2016, the regulatory
approval was not yet received.
On June 30, 2015 the Company’s shareholders approved the employment terms of Mr. Amir London in his position as the Company’s
chief executive officer (“CEO”), effective as of July 1, 2015. Under the employment agreement, Mr. Amir London is entitled to a
monthly gross salary of NIS 65,000 (or $16,658). On August 30, 2016 the general meeting of the shareholders approved the update of
Mr. London’s monthly gross salary to NIS 71,500 (or $18,430), effective as of July, 1 2016. During 2016 the Company recorded
approximately $140 thousands, as a bonus to Mr. London.
F - 43
Kamada Ltd. and its subsidiaries
Notes to the Consolidated Financial Statements
NOTE 18: - CONTINGENT LIABILITIES AND COMMITMENTS (CONT.)
g.
h.
In October 2013, the Company entered into an agreement with Contract Research Organization ("CRO"), for its phase II clinical trial for
treatment of AAT for newly diagnosed type one diabetes patients. The total scope of payment to the CRO under the agreements, as
amended, may reach $5.7 million, payable over the trial period which was initially designed to last over four years, including payments
to trial sites and various service providers in the trial. The completion of the trial was accelerated during 2015 and is expected to end by
mid-2017.
In July 2011, the Company signed a strategic collaboration agreement with an international pharmaceutical company in the area of
clinical development, marketing and sales in the United States of a post exposure prophylaxis product for the prevention of rabies in
human beings. The product, KamRAB, is developed, manufactured and marketed by the Company in other countries. According to the
agreement, the partner shall bear all of the costs required to carry out the phase 3 clinical trial. It was agreed that the costs involved in
registering the product with the U.S. Food and Drug Administration (FDA) will be divided equally between the parties. The study was
completed in December 2014. The study had met the trial’s primary endpoint. The Company submitted a Biologics License Application
(BLA) with the U.S. Food and Drug Administration (FDA) in August 2016.
In October 2016 the parties entered into an amendment to the agreement with respect to the conduct of clinical trial for pediatric
treatment of Rabies in the United States. The cost of the study will be equally shared between the parties.
NOTE 19: - GUARANTEES AND CHARGES
1.
In order to guarantee the rental payments for an office in Ness Ziona and other obligations, the Company provided a bank guarantees in the
amount of $ 339 thousands.
2. As collateral for the Company’s loans in amount of NIS 7,355 thousands, the Company has pledged the specific assets which were
purchased with those loans.
NOTE 20: - EQUITY
a.
Share capital
ordinary shares of NIS 1 par value
b.
Rights attached to Shares
December 31, 2016
December 31, 2015
Authorized Outstanding Authorized Outstanding
60,000,000 36,447,175 60,000,000 36,418,741
Voting rights at the shareholders general meeting, rights to dividend, rights in case of liquidation of the Company and rights to nominate
directors.
F - 44
KAMADA LTD. AND ITS SUBSIDIARIES
Notes to the Consolidated Financial Statements
NOTE 20: - EQUITY (CONT.)
c.
Share options
During 2016, and 2015, 8,398 and 430,178 share options, respectively, were exercised into 1,101 and 430,178 ordinary shares of NIS 1
par value each for consideration of less than $1 thousand and $1,253 thousands, respectively.
For additional information regarding options granted to employees and restricted Shares granted to management in 2016, refer to Note
21 below.
d.
Capital management in the Company
The Company's goals in its capital management are to preserve capital ratios that will ensure stability and liquidity to support business
activity and create maximum value for shareholders.
NOTE 21: - SHARE-BASED PAYMENT
a.
Expense recognized in the financial statements
The share based payment expense that was recognized for services received from employees and directors is presented in the following
table:
Cost of revenues
Research and development
Selling and marketing
General and administrative
Total share-based payment
2016
For the Year Ended
December 31
2015
In thousands
2014
$
$
332 $
134
71
534
1,071 $
564 $
390
98
855
1,907 $
1,136
725
178
1,712
3,751
On July 24, 2011, the Company's Board of Directors approved a new unlisted Options Plan ("2011 Option Plan "). In September 2016
the Company's Board of Directors approved an amendment to the plan and renamed it the Israeli Share Award Plan ("2011 Plan") to
include restricted shares ("RS") awards (options and RS) that generally vest during a four-year period following the date of the grant in
13 installments: 25% of the options vest on the first anniversary of the grant date and 6.25% options vest at the end of each quarter
thereafter.
b.
Option granted to the Company's Chief Executive Officer ("CEO")
On August 30, 2016, the Company’s general shareholders meeting approved the grant of 18,000 options and 6,000 RSs to Mr. Amir
London, the Company’s CEO. The RSs do not have exercise price. The options are exercisable into ordinary shares at an exercise price
of NIS 15.2 per option. Expected volatility of the share prices is 32%-41% and the risk-free interest rate is 0.2%-1.4%. The expected
average forfeiture rate is 0% and the dividend yield is 0%. According to a calculation formula based on the binomial model, the fair
value of the options was estimated at $41 thousands. The fair value of the RSs was estimated based on the market price of the shares on
the grant date at $30 thousands.
F - 45
Notes to the Consolidated Financial Statements
NOTE 21: - SHARE-BASED PAYMENT (CONT.)
Kamada Ltd. and its subsidiaries
On April 27, 2015, the Company's Board of Directors approved the grant, for no consideration, of 120,000 options to the CEO,
exercisable into 120,000 ordinary shares at an exercise price of NIS 18.74. The fair value of the options was estimated at $176
thousands.
c.
Employees options
1. During 2014, 2015 and 2016 the Company's Board of Directors approved the grant, for no consideration, of 20,000, 356,075 and
263,900 options, respectively to employees. The fair value of the options was estimated at $140 thousands, $749 thousands and
$462 thousands, respectively.
2. On July 12, 2016, the Company's Board of Directors approved the grant to the Company’s management, of 57,500 options at an
exercise price of NIS 15.20 per option. The expected volatility of the share prices is 32%-41% and the risk-free interest rate is
0.2%-1.3%. The expected average forfeiture rate is 0% and the dividend yield is 0%. According to a calculation formula based on
the Binomial Model, the fair value of the options was estimated at $86 thousands.
3. On July 12, 2016, the Company's Board of Directors approved the grant of 19,167 RSs to the Company’s management subject to
shareholders approval which was granted on August 30, 2016. The RSs do not have exercise price. The RSs are exercisable in 13
installments, 25% of the RSs vest on the first anniversary of the grant date and 6.25% vest at the end of each quarter thereafter into
ordinary shares. The fair value of the RSs was estimated based on the market price of the share on the grant date at $95 thousands.
4. On November 24, 2016, the Board of Directors approved the grant of 12,500 options and 4,166 RSs to the Company's management.
The RSs do not have exercise price. The options are exercisable into ordinary shares at an exercise price of NIS 22.08 per option.
The expected volatility of the share prices is 32%-45% and the risk-free interest rate is 0.2%-1.8%. The expected average forfeiture
rate is 0% and the dividend yield is 0%. According to a calculation formula based on the Binomial Model, the fair value of the
options was estimated at $24 thousands. The fair value of the RS was estimated based on the market price of the share on the grant
date at $22 thousands.
F - 46
Notes to the Consolidated Financial Statements
NOTE 21: - SHARE-BASED PAYMENT (CONT.)
d.
Directors options
Kamada Ltd. and its subsidiaries
On August 30, 2016, the Company’s general shareholders meeting approved the grant of 50,000 options to the Company’s directors. The
options are exercisable ordinary shares at an exercise price of NIS 15.2 per option. The expected volatility of the share prices is
32%-41% and the risk-free interest rate is 0.2%-1.4%. The expected average forfeiture rate is 0% and the dividend yield is 0%.
According to a calculation formula based on the Binomial Model, the fair value of the options was estimated at $114 thousands.
On June 30, 2015 the Company's general shareholders meeting approved the grant, for no consideration, of 25,000 options to the
Company's directors exercisable into 25,000 ordinary shares at an exercise price of NIS 18.74. The fair value of the options was
estimated at $37 thousands.
e.
Consultants options
On April 27, 2015 the Company's Board of Directors approved the grant, for no consideration, of 3,000 options to two consultants of the
Company exercisable into 3,000 ordinary shares at an exercise price of NIS 18.74. The fair value of the options was estimated at $4
thousands.
f.
For additional information regarding the exercise of options during 2016, refer to Note 20.
Change of Awards during the Year
The following table lists the number of share options, the weighted average exercise prices of share options and modification in
employee and service provider option plans during the year:
2016
2015
2014
Number of
Options
2,281,493
401,275
(8,398)
(187,134)
2,487,236
1,543,358
Weighted
Average
Exercise
Price
In NIS
Number of
Options
Weighted
Average
Exercise
Price
In NIS
Number of
Options
Weighted
Average
Exercise
Price
In NIS
38.96
15.17
18.47
39.22
2,396,891
504,075
(430,178)
(189,295)
37.98
18.28
11.18
34.94
2,471,507
20,000
(35,133)
(59,483)
35.20
2,281,493
38.96
2,396,891
40.44
1,182,417
40.39
1,276,920
3.62
4.15
37.53
54.68
15.20
38.63
37.98
27.67
3.84
Outstanding at beginning of year
Granted
Exercised
Forfeited
Outstanding at end of year
Exercisable at end of year
The weighted average remaining
contractual life for the share options
The range of exercise prices for share options outstanding as of December 31, 2015 and 2016 were NIS 15- NIS 57. Exercise is either by
cash consideration of the exercise price or by cashless method.
F - 47
Notes to the Consolidated Financial Statements
NOTE 21: - SHARE-BASED PAYMENT (CONT.)
The following table lists the number of RSs and modification in employee RSs during the year:
Outstanding at beginning of year
Granted
End of restriction period
Forfeited
Outstanding at end of year
The weighted average remaining contractual life for the restricted share
Measurement of the fair value of equity-settled share options
Kamada Ltd. and its subsidiaries
2016
Number of RSs
-
29,333
-
(2,000)
27,333
6.20
The Company uses the binomial model when estimating the grant date fair value of equity-settled share options. The measurement was
made at the grant date of equity-settled share options since the options were granted to employees.
The following table lists the inputs to the binomial model used for the fair value measurement of equity-settled share options for the
above plan:
Dividend yield (%)
Expected volatility of the share prices (%)
Risk-free interest rate (%)
Contractual term of up to (years)
Exercise multiple
Weighted average share prices (NIS)
Expected average forfeiture rate (%)
NOTE 22: - TAXES ON INCOME
a.
Tax laws applicable to the Company
Income tax (inflationary adjustments) law, 1985
2016
-
32-51
2015
-
42-64
2014
-
30-50
0.13 – 1.83 0.07 – 2.04 0.92 – 3.24
6.5
2
15.17
0-5
6.5
2
17.17
0-5
6.5
2
55.08
0-5
According to the law, until 2007, the results for tax purposes were adjusted for the changes in the Israeli CPI.
In February 2008, the "Knesset" (Israeli parliament) passed an amendment to the Income Tax (Inflationary Adjustments) Law, 1985,
which limits the scope of the law starting 2008 and thereafter. Since 2008, the results for tax purposes are measured in nominal values,
excluding certain adjustments for changes in the Israeli CPI carried out in the period up to December 31, 2007.
F - 48
Notes to the Consolidated Financial Statements
NOTE 22: - TAXES ON INCOME (CONT.)
Law for the Encouragement of Industry (Taxes), 1969
Kamada Ltd. and its subsidiaries
The Law for the Encouragement of Industry (Taxes), 1969 (the “Encouragement of Industry Law”), provides several tax benefits for
“Industrial Companies.” Pursuant to the Encouragement of Industry Law, a company qualifies as an Industrial Company if it is a resident
of Israel and at least 90% of its income in any tax year (exclusive of income from certain defense loans) is generated from an “Industrial
Enterprise” that it owns. An Industrial Enterprise is defined as an enterprise whose principal activity, in a given tax year, is industrial
activity.
An Industrial Company is entitled to certain tax benefits, including: (i) a deduction of the cost of purchases of patents, know-how and
certain other intangible property rights (other than goodwill) used for the development or promotion of the Industrial Enterprise in equal
amounts over a period of eight years, beginning from the year in which such rights were first used, (ii) the right to elect to file
consolidated tax returns, under certain conditions, with additional Israeli Industrial Companies controlled by it, and (iii) the right to
deduct expenses related to public offerings in equal amounts over a period of three years beginning from the year of the offering.
Eligibility for benefits under the Encouragement of Industry Law is not contingent upon the approval of any governmental authority
The Company believes that it currently qualifies as an industrial company within the definition of the Industry Encouragement Law. The
Company cannot assure that the Israeli tax authorities will agree that the Company qualifies, or, if qualified, that it will continue to
qualify as an industrial company or that the benefits described above will be available to the Company in the future.
Law for the Encouragement of Capital Investments, 1959
Tax benefits prior to Amendment 60
The Company's facilities in Israel have been granted Approved Enterprise status under the Law for the Encouragement of Capital
Investments, 1959, commonly referred to as the “Investment Law”. The Investment Law provides that capital investments in a
production facility (or other eligible assets) may be designated as an Approved Enterprise. Until 2005, the designation required advance
approval from the Investment Center of the Israel Ministry of Industry, Trade and Labor. Each certificate of approval for an Approved
Enterprise ("certificate of approval") relates to a specific investment program, delineated both by the financial scope of the investment
and by the physical characteristics of the facility or the asset.
Under the Approved Enterprise programs, a company is eligible for governmental grants (“Grants Track”). Under the Grants Track the
Company is eligible for investments grants awarded at various rates according to the development area in which the plant is located: in
Development Zone A the rate is 24% and in Development Zone B the rate is 10%. In addition to the above grants, the Company is
eligible to tax exemption at the first two years of the benefit period (as define below) and is subject to reduced corporate tax of 10% to
25% during the remaining five to eight years (depending on the extent of foreign investment in the Company) of the benefit period. The
benefits period is limited to 12 years from completion of the investment or commencement of production ("Year of Operation"), or 14
years from the year in which the certificate of approval was obtained, whichever is earlier. The benefit period for part of the Company
plants has ended, or up to 2017.
F - 49
Notes to the Consolidated Financial Statements
NOTE 22: - TAXES ON INCOME (CONT.)
Kamada Ltd. and its subsidiaries
Under the Investment Law a company may elect to receive an alternative package comprised of tax benefits (“Alternative Track”)
instead of the above mentioned grants Track. Under the Alternative Track, a company’s undistributed income derived from an Approved
Enterprise is exempt from corporate tax for an initial period of two to ten years (depending on the geographic location of the Approved
Enterprise within Israel which begins in the first year that the Company realizes taxable income from the Approved Enterprise following
the year of operation (as define below). After expiration of the initial tax exemption period, the Company is eligible for a reduced
corporate tax rate of 10% to 25% for the following five to eight years, depending on the extent of foreign investment in the Company (as
shown in the table below). The benefits period is limited to 12 years from the Year of Operation, or 14 years from the year in which the
certificate of approval was obtained, whichever is earlier.
Tax benefits under Amendment 60
On April 1, 2005, an amendment to the Investment Law came into effect (“Amendment 60”). The amendment revised the criteria for
investments qualified to receive tax benefits. An eligible investment program under the amendment will qualify for benefits as a
Privileged Enterprise (rather than the previous terminology of Approved Enterprise). Among other things, the amendment simplifies the
approval process.
In order to receive the tax benefits, the Amendment states that the company must make an investment in the Privileged Enterprise
exceeding a certain percentage or a minimum amount specified in the Investments Law. Such investment may be made over a period of
no more than three years ending at the end of the year in which the company requested to have the tax benefits apply to the Privileged
Enterprise (the “Year of Election”).
The Company received a Tax Ruling from the Israeli Tax Authority that its activity is an industrial activity and the Company will be
eligible for the status of a Privileged Enterprise, provided that it meets the requirements under the ruling. The year of Election is
2009.The Company also obtained 2012 as a Year of election.
The duration of tax benefits is subject to a limitation of the earlier of 7 to 10 years (depending on the extent of foreign investment in the
company) from the first year in which the company generated taxable income (at, or after, the Year of Election) , or 12 years from the
first day of the Year of Election. The amendment does not apply to investment programs approved prior to December 31, 2004. The new
tax regime applies to new investment programs only.
F - 50
Notes to the Consolidated Financial Statements
NOTE 22: - TAXES ON INCOME (CONT.)
Kamada Ltd. and its subsidiaries
The tax benefits available under Approved Enterprise or Privileged Enterprise relate only to taxable income attributable to the specific
Approved Enterprise or Privileged Enterprise, and the Company's effective tax rate will be the result of a weighted combination of the
applicable rates.
Percent of
Foreign Ownership
0-25%
25-49%
49-74%
74-90%
90-100%
Rate of Reduced Tax
25%
25%
20%
15%
10%
Reduced Tax Period
5 years
8 years
8 years
8 years
8 years
Tax Exemption
Period
2 years
2 years
2 years
2 years
2 years
The benefits available to an Approved Enterprise and a Privileged Enterprise are conditioned upon terms stipulated in the Investment
Law and the related regulations and the criteria set forth in the applicable certificate of approval (for an Approved Enterprise). If the
Company does not fulfill these conditions, in whole or in part, the benefits can be cancelled and we may be required to refund the
amount of the benefits, linked to the Israeli consumer price index plus interest. The Company believes that its Approved Enterprise and
Privileged Enterprise programs currently operate in compliance with all applicable conditions and criteria.
If a company distributes dividends from tax-exempt income, the company will be taxed on the otherwise exempt income at the same
reduced corporate tax rate that would have applied to that income. Distribution of dividends derived from income that was taxed at
reduced rates, but not tax-exempt, does not result in additional tax consequences to the company. Shareholders who receive dividends
derived from Approved Enterprise or Privileged Enterprise income are generally taxed at a rate of 15%, which is withheld and paid by
the company paying the dividend, if the dividend is distributed during the benefits period or within the following 12 years (the limitation
does not apply to a Foreign Investors Company, which is a company that more than 25% of its shares owned by non-Israeli residents).
Preferred Enterprise
Tax Benefits under the 2011 Amendment
As of January 1, 2011 new legislation amending to the Investment Law came into effect (the “2011 Amendment”). The 2011
Amendment introduced a new status of “Preferred Company” and “Preferred Enterprise”, replacing the existed status of “Beneficiary
Company” and “Beneficiary Enterprise”. Similarly to “Beneficiary Company”, a Preferred Company is an industrial company owning a
Preferred Enterprise which meets certain conditions (including a minimum threshold of 25% export). However, under this new
legislation the requirement for a minimum investment in productive assets was cancelled.
Under the 2011 Amendment, a uniform corporate tax rate will apply to all qualifying income of the Preferred Company, as opposed to
the former law, which was limited to income from the Approved Enterprises and Beneficiary Enterprise during the benefits period. The
uniform corporate tax rate will be 12.5% elsewhere in Israel (in development area A - 7%).
F - 51
Notes to the Consolidated Financial Statements
NOTE 22: - TAXES ON INCOME (CONT.)
Kamada Ltd. and its subsidiaries
On August 5, 2013, the "Knesset" issued the Law for Changing National Priorities (Legislative Amendments for Achieving Budget
Targets for 2013 and 2014), which consists of Amendment 71 to the Encouragement Law ("the Amendment"). According to the
Amendment, the tax rate on preferred income from a preferred enterprise in 2014 and onwards will be 16% (in development area A -
9%).
The Amendment also prescribes that any dividends distributed to individuals or foreign residents from the preferred enterprise's earnings
as above will be subject to tax at a rate of 20% from 2014 and onwards (or a reduced rate under an applicable double tax treaty). Upon a
distribution of a dividend to an Israeli company, no withholding tax is remitted.
In December 2016, the "Knesset" amended the Investment Law. According to the amendment, effective from January 1, 2017 the tax
rate on:
1. Preferred income from a preferred enterprise will be 16% (in development area A – 7.5% instead of 9%).
2. Preferred income resulting from IP in a preferred technology enterprise will be 12% (in development area A – 7.5%).
3. Preferred income resulting from IP in a special preferred technology enterprise will be 6%.
4. Any dividends distributed from technology enterprise earnings to a foreign company that qualifies the provisions that are detailed in
the law, will be subject to tax at a rate of 4%.
The Company has evaluated the effect of the adoption of the Amendment on its financial statements, and as of the date of the approval
of the financial statements, the Company believes that it will not apply the Amendment. Accordingly, the Company has not adjusted its
deferred tax balances as of December 31, 2016. The Company may change its position in the future.
b.
Tax rates applicable to the Company (other than the applicable preferred tax)
In January 2016, the Law for Amending the Income Tax Ordinance (No. 216) (Reduction of Corporate Tax Rate), 2016 was approved,
which includes a reduction of the corporate tax rate from 26.5% to 25%, effective from January 1, 2016.
In December 2016, the Israeli Parliament's Plenum approved, as part of the economic efficiency law (Legislative Amendments for
Achieving Budget Targets for 2017 and 2018), a reduction of the corporate tax rate in 2017 from 25% to 24%, and in 2018 from 25% to
23%.
c.
Tax assessments
1.
Finalized tax assessments
The Company has finalized its tax assessments through 2012.
F - 52
Notes to the Consolidated Financial Statements
NOTE 22: - TAXES ON INCOME (CONT.)
2.
Tax assessments in dispute
Kamada Ltd. and its subsidiaries
On July 10, 2016, the Company and the Israel Tax Authority (ITA) entered into a settlement agreement for the tax years 2004-
2006. As part of the agreement, the Company paid NIS 5 million ($ 1.3 million) (including interest and CPI adjustment).
d.
Carry forward losses for tax purposes and other temporary differences
As of December 31, 2016, the Company has carry forward losses and other temporary differences in the amount of $ 88.6 million.
e.
Deferred taxes:
The Company did not recognize deferred tax assets for carry forward losses and other temporary differences, because their utilization in
the foreseeable future is not probable.
f.
Current taxes on income:
Current taxes
Taxes in respect of prior year
g.
Theoretical tax:
2016
Year ended December 31,
2015
In thousands
2014
$
362 $
1,360
$
1,722 $
- $
-
- $
52
-
52
The reconciliation between the tax expense and prior year tax expense, assuming that all the income and expenses, gains and losses in
the statement of income were taxed at the statutory tax rate and the taxes on income recorded in profit or loss, does not provide
significant information and therefore was not presented.
F - 53
Notes to the Consolidated Financial Statements
NOTE 23: - SUPPLEMENTARY INFORMATION TO THE STATEMENTS OF COMPREHENSIVE LOSS
Kamada Ltd. and its subsidiaries
a.
Additional information about revenues
Revenues from major customers each of whom amount to 10% or more, of
total revenues
Customer A – Proprietary products Segment
Customer B – Proprietary products Segment and Distribution Segment
Revenues based on the location of the customers, are as follows:
U.S.A.
Israel
Europe
Latin America
Asia
Others
F - 54
2016
Year Ended
December 31,
2015
In thousands
2014
$
$
$
40,451
10,225
$
26,032
10,306
$
26,606
12,352
50,676
$
36,338
$
38,958
2016
Year Ended
December 31,
2015
In thousands
40,585 $
25,340
3,825
4,221
3,028
495
26,559 $
30,624
3,223
6,036
2,900
564
2014
26,001
32,040
5,265
5,121
2,120
518
$
77,494 $
69,906 $
71,065
Notes to the Consolidated Financial Statements
NOTE 23: - SUPPLEMENTARY INFORMATION TO THE STATEMENTS OF COMPREHENSIVE LOSS (CONT.)
Kamada Ltd. and its subsidiaries
b.
Cost of goods sold
Cost of materials
Salary and related expenses
Depreciation and amortization
Other manufacturing expenses
Decrease (increase) in inventories
c.
Research and development
Salary and related expenses
Subcontractors
Materials
Allocation of facility costs
Others
d.
Selling and marketing
Salary and related expenses
Marketing support
Packing, shipping and delivery
Marketing and advertising
Registration and marketing fees
Others
F - 55
2016
Year Ended
December 31,
2015
In thousands
2014
$
$
$
38,437 $
12,052
2,443
820
53,752
2,092
55,844 $
4,291 $
8,318
96
1,811
1,729
41,571 $
11,136
2,383
(47)
55,043
(935)
54,108 $
3,737 $
8,002
117
3,269
1,405
42,265
12,026
2,019
(306)
56,004
19
56,023
3,852
6,593
185
4,102
1,298
$
16,245 $
16,530 $
16,030
$
1,118 $
79
494
337
796
419
1,166 $
368
454
560
794
310
1,033
106
403
352
785
219
$
3,243 $
3,652 $
2,898
Notes to the Consolidated Financial Statements
NOTE 23: - SUPPLEMENTARY INFORMATION TO THE STATEMENTS OF COMPREHENSIVE LOSS (CONT.)
Kamada Ltd. and its subsidiaries
e.
General and administrative
Salary and related expenses
Professional fees
Depreciation, amortization and impairment
Bad debt expenses, net
Others
f.
Financial incomes and expenses
Financial incomes
Interest income and gains from marketable securities
Financial expenses
Interest and amortization from debentures
Fees and interest paid to financial institutions
Others
F - 56
2016
Year Ended
December 31,
2015
In thousands
2014
3,183 $
1,378
712
1
2,369
7,643 $
2,665 $
1,482
524
-
2,369
7,040 $
3,244
1,796
455
(53)
2,151
7,593
469 $
463 $
404
- $
126
-
126 $
731 $
111
92
934 $
1,954
109
23
2,086
$
$
$
$
$
Notes to the Consolidated Financial Statements
NOTE 24: - INCOME (LOSS) PER SHARE
a.
Details of the number of shares and income (loss) used in the computation of income (loss) per share
Kamada Ltd. and its subsidiaries
2016
Year Ended
December 31,
2015
Weighted
Number of
Shares
Loss
Attributed to
equity holders
of the
Company
In thousands
Weighted
Number of
Shares
Income
Attributed to
equity holders
of the
Company
In thousands
Weighted
Number of
Shares
2014
Income
Attributed to
equity holders
of the
Company
In thousands
For the computation of basic loss
Effect of potential dilutive ordinary
shares
36,418,833 $
(6,733) 36,245,813 $
(11,270) 35,971,335 $
(13,213)
-
-
-
-
-
-
For the computation of diluted loss
36,418,833 $
(6,733) 36,245,813 $
(11,270) 35,971,335 $
(13,213)
b.
The computation of the diluted income per share in 2016, did not take into account the options and RSs due to their anti-dilutive effect.
NOTE 25: - OPERATING SEGMENTS
a.
General
The operating segments are identified on the basis of information that is reviewed by the chief operating decision maker ("CODM") to
make decisions about resources to be allocated and assess its performance. Accordingly, for management purposes, the Group is
organized into operating segments based on the products and services of the business units and has two operating segments as follows:
Proprietary Products
Development, manufacture and sale of plasma-derived therapeutics products.
Distribution
Distribution of drugs in Israel manufacture by other companies, most of which are plasma derived
products.
Segment performance is evaluated based on revenues and gross profit in the financial statements.
The segment results reported to the CODM include items that are allocated directly to the segments and items that can be allocated on a
reasonable basis. Items that were not allocated, mainly the Group's headquarter assets, general and administrative costs and financial
costs (consisting of finance expenses and finance income and including fair value adjustments of financial instruments), are managed on
a group basis.
F - 57
Notes to the Consolidated Financial Statements
NOTE 25: - OPERATING SEGMENTS (CONT.)
The segment liabilities do not include loans and financial liabilities as these liabilities are managed on a group basis.
b. Reporting on operating segments
Kamada Ltd. and its subsidiaries
Year Ended December 31, 2016
Revenues
Gross profit
Unallocated corporate expenses
Finance income, net
Loss before taxes on income
Year Ended December 31, 2015
Revenues
Gross profit
Unallocated corporate expenses
Finance expenses, net
Loss before taxes on income
F - 58
Proprietary
Products
Distribution
In thousands
Total
55,958 $
21,536 $
77,494
18,525 $
3,125 $
21,650
(27,131)
470
$
(5,011)
Proprietary
Products
Distribution
In thousands
Total
42,952 $
26,954 $
69,906
12,484 $
3,314 $
15,798
(27,222)
154
$
(11,270)
$
$
$
$
Notes to the Consolidated Financial Statements
NOTE 25: - OPERATING SEGMENTS (CONT.)
Year Ended December 31, 2014
Revenues
Gross profit
Unallocated corporate expenses
Finance expenses, net
Income before taxes on income
NOTE 26: - BALANCES AND TRANSACTIONS WITH RELATED PARTIES
a.
Balances with related parties
December 31, 2016
Other accounts payables
Employee benefit liabilities, net
Trade receivable
December 31, 2015
Other accounts payables
Employee benefit liabilities, net
Trade receivable
F - 59
Kamada Ltd. and its subsidiaries
Proprietary
Products
Distribution
In thousands
Total
$
$
44,389 $
26,676 $
71,065
11,772 $
3,270 $
15,042
(26,521)
(1,682)
$
(13,161)
Related Parties
In thousands
$
$
$
$
$
$
230
170
675
291
151
1,446
Notes to the Consolidated Financial Statements
NOTE 26: - BALANCES AND TRANSACTIONS WITH RELATED PARTIES (CONT.)
b.
Benefits to related parties
Salary and related expenses to those employed by the Company or on its behalf
Salary of directors not employed by the Company or on its behalf
Number of People to whom the Salary and Benefits Refer
Related and related parties employed by the Company or on its behalf
Directors not employed by the Company
c.
Benefits to key executive personnel (including non-related parties)
Short-term benefits
Share-based payment
Other long-term benefits
d.
Transactions with related parties
Year Ended December 31, 2016
Sales
Selling and marketing expenses
General and administrative expenses
F - 60
Kamada Ltd. and its subsidiaries
Year Ended
December 31,
2016
2015
In thousands
$
$
473 $
122 $
2
3
5
800
189
2
3
5
2016
Year Ended
December 31,
2015
In thousands
2014
$
2,453 $
460
28
2,144 $
650
61
2,064
1,165
(8)
$
2,941 $
2,855 $
3,221
Related Parties
In
thousands
$
$
$
2,230
101
503
Notes to the Consolidated Financial Statements
NOTE 26: - BALANCES AND TRANSACTIONS WITH RELATED PARTIES (CONT.)
Year Ended December 31, 2015
Sales
Selling and marketing expenses
General and administrative expenses
Year Ended December 31, 2014
Sales
Selling and marketing expenses
General and administrative expenses
e.
Revenues and Expenses from Related and Interested Parties
Terms of Transactions with Related Parties
Kamada Ltd. and its subsidiaries
Related Parties
In
thousands
$
$
$
$
$
$
2,795
114
526
1,158
120
1,466
1.
2.
Sales to related parties are conducted at market prices. Balances that have yet to be repaid by the end of the year are not
guaranteed, bear no interest and their settlement will be in cash. No guarantees were received or given for sums receivable or
payable. For the years ended December 31, 2016, 2015 and 2014, the Company recorded no allowance for doubtful accounts for
sums receivable from related parties.
On May 26, 2011, the Company announced its engagement in an amended agreement that revises and replaces the distribution
agreement signed in 2001 between the Company and Tuteur SACIFIA, a company registered in Argentina, currently under the
control of the Hahn family. The amendment to the agreement was made as an arm’s length transaction.
On August 19, 2014 we amended the agreement in order to add KamRho(D) as an additional product to be distributed by Tuteur
and expanded the territory to include Bolivia.
Pursuant to the distribution agreement, Tuteur serves as the exclusive distributor of Glassia and KamRho(D), in Argentina,
Paraguay and Bolivia. In 2016 the board of directors approved to provide Tuteur reimbursement at a non-material amount to be
used for marketing activities aimed to locating new AATD patients and increasing the overall number of AATD patients treated
with Glassia in Argentina. Such reimbursement will be granted until the end of September 2019. In 2016 a reimbursement was
paid according to the agreement. In addition, in 2016 and on February 28, 2017 the board of directors also approved to grant
Tuteur an arm’s length discount for KamRho(D) at a non-material amount.
F - 61
Notes to the Consolidated Financial Statements
NOTE 26: - BALANCES AND TRANSACTIONS WITH RELATED PARTIES (CONT.)
Kamada Ltd. and its subsidiaries
3.
Mr. Reuven Behar, a partner of Fischer Behar Chen Well Orion Co., the Company’s external legal counsel was a director in the
Company until May 2016. Fees attributed to Fischer Behar Chen Well Orion Co. are included in the tables above for the period
ending May 1, 2016.
On July 29, 2015 the Company’s Board of Directors approved to engage Khairi S.A. (“Khairi”), a company that is held, inter alia,
by Mr. Leon Recanati, the Chairman of our board of directors, Mr. Jonathan Hahn, a director in the company and his siblings and
Mr. Reuven Behar, a former director in the Company, who serves as the chairman of the board of directors of Khairi, in a
distribution agreement, for the distribution of Glassia and KamRho(D) in Uruguay. This distribution agreement with Khairi is an
arm’s length transaction.
F - 62
FIFTH AMENDMENT
TO THE
EXCLUSIVE MANUFACTURING, SUPPLY AND DISTRIBUTION AGREEMENT
Exhibit 4.28
This FIFTH Amendment to the Exclusive Manufacturing, Supply and Distribution Agreement dated August 23rd, 2010 as amended on September 6th,
2012, May 14th, 2013, February 15th, 2014, and August 25th, 2015, by and between Baxalta US Inc., now part of Shire, having a place of business at 1200
Lakeside Dr., Bannockburn, IL 60060 (hereinafter "Baxalta") and Kamada Ltd., having a place of business at Science Park, Kiryat Weizmann, 7 Sapir St.,
Ness-Ziona, 74036, Israel (hereinafter "Kamada") (the "Agreement") is entered into as of this 10th day of August, 2016 (the "Effective Date"). Baxalta and
Kamada shall collectively be referred to as the "Parties".
RECITALS
WHEREAS, the Parties desire to enter into a fifth amendment to the Agreement in order to amend the Minimum Purchase Levels and the Production
Capacity as set under the Agreement, and other provisions, as elaborated hereunder (hereinafter the "Fifth Amendment").
WHEREAS, Baxalta is interested to secure a long term Minimum Purchase Levels for the years 2017 until 2020, which materially exceed the
quantities indicated in the Agreement (including the 4th Amendment).
WHEREAS, Kamada is required to prepare for such capacity ahead of time and to make exceptional investments in its plant's infrastructures.
WHEREAS, the Parties desire to amend the Minimum Purchase Levels and Production Capacity for years 2017 through 2020.
NOW THEREFORE, it is hereby agreed as follows:
1. Section 4.5 of the Agreement shall be replaced with the following paragraph:
4.5 Post-2020 Forecasting. Baxalta shall notify Kamada in writing, no later than [*****] with respect to its expectations for the continued supply
of Product by Kamada, for calendar years 2021 and beyond. Notwithstanding the above, to the extent that Baxalta wishes to order quantity of
Products for calendar years 2021 and beyond [*****], it will provide Kamada written notice of [*****]. For the avoidance of doubt, and except
as otherwise stated in the Agreement, [*****].
Fifth Amendment to the Exclusive Manufacturing, Supply and Distribution Agreement Confidential
Page 1
2. Section 2.2 of the Agreement shall be replaced with the following paragraph:
2.2 Exclusivity. Kamada represents and warrants to Baxalta that Kamada is not a party to any other effective agreements, written or oral, with
any third party permitting the sale or distribution of Product in the Field in the Baxalta Territory. Kamada covenants and agrees that during the
term of this Agreement, Kamada will not, directly or indirectly, sell or distribute Product in the Baxalta Territory, or enter into any agreement
with a third party to do so.
3. Section 3.1 of the Agreement shall be replaced with the following paragraph:
3.1 License. Subject to the terms of this Agreement, Kamada hereby grants to Baxalta and its Affiliates an exclusive, royalty-free right and
license, with the right to grant sublicenses, in the Field in the Baxalta Territory under the Kamada Intellectual Property, that is necessary or useful
to enable Baxalta to promote, import, export, use (in a manner consistent with the activities contemplated by this Agreement or any Related
Agreement), offer to sell, sell, have sold and distribute the Product in the Field in the Baxalta Territory under and in accordance with this
Agreement.
4. Section 6.4(a) of the Agreement shall be replaced with the following paragraph:
Minimum Purchase Levels.
(a) During each calendar year following the Effective Date (each a "Minimum Period"), for a period terminating on December 31, 2020
(the "Minimums Term"), Baxalta shall be obligated to purchase minimum volumes (the "Minimum Purchase Levels") of the Product as follows:
Minimum Period
(Calendar Year)
Minimum Purchase Levels
(50 mL vials)
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
Fifth Amendment to the Exclusive Manufacturing, Supply and Distribution Agreement Confidential
Page 2
5. Section 1.77 of the Agreement is hereby amended to read as follows:
1.77 "Production Capacity" of 50 mL vials of Product for delivery to Baxalta shall mean:
Calendar Year
50 mL vials/month
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
6. Section 5.1(d) of the Agreement shall be replaced with the following paragraph:
(d) Annual and Market Price Adjustments.
(i)
(ii)
Beginning [*****] and on each January 1 thereafter during the Term, the then-current Transfer Prices (taking into account any prior year
adjustments and Market Price adjustments) shall be increased by [*****] of: (A) [*****] and (B) the percentage increase, if any, in the
Producer Price Index (as published by the U.S. Bureau of Labor Statistics) over the prior year.
If, during any calendar year, the Transfer Price identified above is, at any time, less than [*****] of the average Market Price for the
Product for the applicable calendar year, the applicable Transfer Price shall be increased when calculating the final Transfer Price for
Product in the annual true-up at the conclusion of each calendar year during the Term to be equal to [*****] of such average Market Price.
Notwithstanding the foregoing, the Transfer Price for [*****] shall be held at [*****] of the average Market Price for 2017, as determined
in the 2017 annual true-up, plus the adjustments, if any, according to section 5(d)(i) above. This Transfer Price for [*****] shall apply only
to [*****].
(iii)
If Baxalta purchases quantities of Product from Kamada [*****], Kamada shall [*****].
(iv)
The Transfer Price specified in Sections 5.1(d)(ii) and 5.1(d)(iii) above applies only to [*****].
Fifth Amendment to the Exclusive Manufacturing, Supply and Distribution Agreement Confidential
Page 3
7. A new Section 6.5 shall be added to the Agreement, as follows:
6.5
Marketing Contribution Payments. In order to support Baxalta’s marketing efforts for Product in the Baxalta Territory, Kamada shall
reimburse Baxalta for a portion of Baxalta’s documented marketing expenses. Examples of such marketing expenses include, but are not
limited to, [*****]. Baxalta shall provide Kamada with an invoice statement detailing the expenses for which Baxalta seeks reimbursement
on a quarterly basis. Kamada shall pay to Baxalta any undisputed amounts so invoiced [*****] days after receipt of the invoice. Kamada
shall reimburse up to the following amounts for the designated calendar year period:
Calendar Year
Limit of amount to be reimbursed by Kamada
2017
2018
2019
2020
up to [*****]
up to [*****]
up to [*****]
up to [*****]
8. All provisions of the Agreement which are not expressly amended by the terms of this Fifth Amendment shall remain in effect and without change.
IN WITNESS WHEREOF, the Parties have caused this Fifth Amendment to be executed by their duly authorized representatives.
BAXALTA US INC.
KAMADA LTD.
[signature page follows]
By: _________________________________________
Name:
Title:
Date: ________________________________________
By: _________________________________________
Name: Amir London
Title: Chief Executive Officer
Date: ________________________________________
By: _________________________________________
Name: Gil Efron
Title: Deputy CEO and Chief Financial Officer
Date: ________________________________________
Fifth Amendment to the Exclusive Manufacturing, Supply and Distribution Agreement Confidential
Page 4
Agreement for the Rendering of Services
Exhibit 4.31
THIS AGREEMENT for the rendering of services (the “Agreement”) is entered into as of September 8, 2016 ("Effective Date") by and between Yissum
Research Development Company of the Hebrew University of Jerusalem Ltd. (“Yissum”) and Kamada Ltd. (“Company”).
Yissum and the Company hereby agree to all of the following terms and conditions:
1.
2.
3.
4.
5.
6.
The Services: The Company hereby requests Yissum to perform the laboratory studies and testing relating to the Company's recombinant AAT
development program for its proprietary products (the “Services”). The objectives and specifications of the Services shall be detailed in the protocol
attached hereto as Appendix A (the "Service Protocol"), which shall constitute an integral part of this Agreement.
Time Schedule: The Services are to be performed during the Service Period stated below, and in accordance with the estimated completion dates of
the different activities and tasks detailed in Appendix A (the “Time Schedule”):
Start on: September 11, 2016
Complete on: September 10, 2017 the (“Service Period”).
Notwithstanding the above, the Parties acknowledge the Time Schedule is an estimated time schedule only, and that there may be delays/changes in the
completion dates of certain tasks listed in the Service Protocol. Such delays may, consequently, result in a delay or change in the Time Schedule and/or
Service Period. The Researcher shall inform the Company and Yissum of any such delays/changes as soon as it becomes evident that there will be any
delay/change, in which case the Parties will negotiate in good faith the amendment of the Time Schedule and/or Service Period.
The Researcher: The Services will be performed by or under the sole control and supervision of Dr. Tsafi Danieli, or such other qualified person as
may be determined and appointed by Yissum, provided that the Company has authorized in advance and in writing the appointment of such qualified
person (the “Researcher”).
The Scientific Report: The scientific report that will be required as a result of the Services rendered, will be presented directly to the Company by the
Researcher within 14 (fourteen) days of the end of the Service Period (the “Scientific Report”). The Company acknowledges that no financial report
will be given by Yissum.
The Consideration: In consideration for provision of the Services and the Scientific Report, the Company shall be obligated to pay Yissum the total
amount specified under Appendix A (exclusive of overhead), plus any applicable value added tax (the "Service Fee"). The Company shall pay the
Service Fee in accordance with the milestones payments set forth under Appendix A.
Payment shall be made [*****] following the presentation of an invoice. In the event that the Company fails to pay an invoiced amount in a timely
manner, Yissum shall be entitled to add to the unpaid invoiced amount an additional amount equal to annualized interest of Prime (as determined by
the Bank of Israel) plus 5% per annum.
Intellectual Property: It is hereby agreed that the Company retains ownership in its Confidential Information, as defined below, and in all its
intellectual property rights related thereto. In addition, any intellectual property belonging to either the Company or Yissum prior to the execution of
this Agreement will remain the sole property of either the Company or Yissum, respectively.
All data generated from the provision of the Services, including the Scientific Report, which are specifically required and contemplated under the
Service Protocol (the "Company Data”"), shall be owned by the Company upon full payment of the Service Fee, and shall be automatically assigned
by Yissum to Company and be the property of Company or its assignee. No royalties or other payments of any kind whatsoever shall be made by
Company to Yissum with respect to the Company Data or the use and exploitation thereof for any purpose, other than such payments due to Yissum
pursuant to Section 5 hereof.
For the avoidance of doubt only, and without derogating from the generality of the foregoing, the Company shall be entitled, at its sole discretion, to
make full use of the Company Data for any purpose, including, without limitation, the incorporation of such Company Data in any patent applications
which the Company may file in connection with its intellectual property.
7.
8.
9.
10.
11.
Confidentiality: Yissum and the Researcher agree to maintain the confidentiality of any information disclosed to them by the Company in connection
with the Services, which the Company identifies as confidential at the time of disclosure, or information that may considered as confidential by its
nature, including the Company Data ("Confidential Information"), which by way of illustration, but not limitation, includes trade secrets, processes,
formulas, data and know-how, improvements, inventions, techniques, products (actual or planned), regulatory, quality and intellectual property matters,
research and development, marketing and business plans, strategies, forecasts, financial information, any kind of reports, flow charts, diagrams,
working papers, designs and customer, suppliers, distributors, agents, employees and sub-contractors lists, and not to make public any such
Confidential Information without the prior written permission of the Company. This undertaking shall not apply to Confidential Information that is in
the public domain at the time of disclosure or thereafter enters the public domain through no fault of Yissum or the Researcher; or that the Researcher
can show, by contemporaneous written evidence, was already known to him at the time of disclosure; or that is provided to Yissum or the Researcher
by a third party having no obligations of confidentiality to the Company; or that is independently developed by an employee of the Hebrew University
who is not the Researcher. In addition, Yissum or the Researcher shall be entitled to disclose Confidential Information pursuant to a valid judicial or
administrative order, provided that they shall provide prompt notice to the Company of their receipt of such an order to allow the Company to seek
appropriate protective order or any kind of relief against such order.
The undertakings pursuant to this Section 7 shall remain in full force and effect, for a period of seven (7) years following the termination or expiration
of this Agreement.
Yissum acknowledges that Company’s shares are publicly traded on the Tel-Aviv Stock Exchange and the NASDAQ and undertakes not to use any
Confidential Information in connection with the purchase or sale of securities of Company in violation of any applicable securities laws.
Publications: The Researcher will be permitted to publish information regarding her technical work connected to the Services provided that she first
submits the publication to the Company. The Company may reasonably withhold its consent to such publication solely to delete sensitive Company
owned Confidential Information and to allow for the filing of patent applications or similar intellectual property protection on any of the Company’s
intellectual property that might appear in the proposed publication, provided however that in no event will such Company consent be withheld for a
period longer than 90 days from the day that the Researcher first submitted the said publication to the Company, after which time the publication will
be automatically permitted.
Use of Names: Both Parties shall not make any use of any kind of the name of the other party (or Researcher(s) and/or Yissum and/or the Hebrew
University with respect to Yissum's organs) without the prior written consent of the other party, which consent shall not be unreasonably withheld.
Relationship of the Parties: The parties do not stand in a relationship of employer-employee. Such relationship shall be that of requester –
independent contractor.
Dispute Resolution: The cases in which a dispute shall arise between the Company and Yissum in connection with this Agreement or any rights or
obligations arising hereunder, shall be governed by and construed and enforced in accordance with the laws of the State of Israel, regardless of any
choice of law principles. The competent court in Tel-Aviv - Jaffa shall have exclusive jurisdiction with respect to any and all actions brought
hereunder, and each party irrevocably submits to the jurisdiction of such court.
12.
Authorized Signatories: Signature by at least two authorized representatives of Yissum on this Agreement shall constitute Yissum’s approval and
agreement to all that is written herein. The Company warrants that the person or persons signing this agreement are authorized to bind the Company.
2
13.
Disclaimer of Warranty, Liability and Indemnification; Insurance:
(a)
(b)
(c)
(d)
Nothing contained in this Agreement shall be construed as a warranty on the part of Yissum that any results or inventions will be achieved by
the Services, or that the results of the Services, if any, are or will be of commercial or scientific value to the Company.
Yissum and the Hebrew University, and their respective parents, affiliates, officers, directors, employees, agents and contractors, (all such
parties collectively: the “Indemnitees”), shall not be liable for any claims, actions, demands, losses, damages, costs and expenses (including
without limitation legal fees) (collectively: “Claims”) made, brought or suffered by the Company or by any third parties arising from any
exploitation or use of the Services provided (including without limitation any Services work product and data), unless such Claims are
generated as a result of gross negligence of willful misconduct of Yissum or the Indemnitees in rendering the Services.
In the event that any third party Claim is brought against Yissum and/or any of the Indemnitees as set out in Section 13(a) above, the Company
shall indemnify the relevant Indemnitees and hold them harmless from and against any and all such damages, liability, losses, costs and/or
expenses in accordance with final court verdict, unless such Claims are a result of gross negligence of willful misconduct of Yissum or the
Indemnitees in rendering the Services.
Each party shall maintain, at its own cost and expense, during the term of this Agreement, insurance policies of such types and with such
liability limits as reasonably required to adequately cover its legal liabilities hereunder. The provisions under this Clause 13(d) shall survive the
expiration or termination of this Agreement.
14.
Termination:
(a)
Unless terminated in accordance with the provisions of this Agreement, this Agreement shall end upon the presentation of the Scientific Report.
(b)
(c)
Each party shall be entitled to terminate this Agreement in the event of a breach by the other party of its obligations under this Agreement,
including, but not limited to, any payment failure, which is not remedied by the breaching party within thirty (30) days of receipt of written
notice from the non-breaching party.
The Company may terminate this Agreement at any time, by a written notice to Yissum, at least [*****] in advance, without such termination
being considered as a breach of this Agreement. If the Agreement is terminated prior to the end of the Service Period, all amounts to be paid
under this Agreement up to the date of termination shall include all milestone activities payments to be made up to the effective date of
termination, as set forth in Appendix A, and shall considered as non-refundable. In the event that the effective date of termination is prior to the
completion of all the tasks to be performed under a particular activity, payment will be made to Yissum as if all tasks to be performed under
such activity have been fully completed.
(d)
Sections 6, 7, 8, 9, 11 and 13 shall survive termination of this Agreement.
15. General:
(a)
(b)
(c)
This Agreement contains the entire understanding and agreement between the parties with respect to the subject matter hereof. This Agreement
may not be supplemented, modified, amended, released or discharged except by an instrument in writing signed by each party’s duly authorized
representative.
All caption and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of
its provisions.
Any waiver by either party of any default of breach hereunder shall not constitute a waiver of any provision of this Agreement or of any
subsequent default of breach of the same or a different kind.
3
IN WITNESS WHEREOF, the parties, each by its duly authorized signatory, have caused this Agreement to be executed as of the date indicated below:
Kamada Ltd.
7 Sapir St., Science Park, Kiryat Weizmann, Ness-Ziona, 74036 Israel
Yissum Research Development Company of the Hebrew University of
Jerusalem Ltd.
Hi-Tech Park, Edmond J. Safra Campus,
Givat Ram, P.O.B 39135, Jerusalem 91390, Israel
By: ________________
By: ________________
By: _________________ and __________________
Name: Amir London
Gil Efron
Name: _______________ __________________
Title: CEO
Deputy CEO and CFO
Title : ________________ ___________________
Date:______________
Date:______________
Date: _______________________________________
Researcher’s Agreement:
I the undersigned, Dr. Tsafi Danieli, of the Hebrew University of Jerusalem, have reviewed, am familiar with and agree to all of the above terms and
conditions. I hereby undertake to fully cooperate with Yissum in order to ensure its ability to fulfill its obligations hereunder, as set forth herein.
Signature: ___________________________________ Date: _____________________________
4
Appendix A: Scope of Work for Research Program
Generation of a Mammalian Overexpression System for Recombinant AAT
Yissum shall perform the following activities under the Research in accordance with the following schedule and costs:
Activities
Task
Deliverables
Milestone I
[*****]
1
2
3
4
5
6
6a
Milestone II:
[*****]
7
Or 7a
7b
8
9
10
11
12
13
14
15
16
* [*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
Total Service Fee: [*****] (*)
5
Estimated
Completion
Date
Cost*
(NIS)
From [*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
Milestone
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
Payment schedule
Amount (NIS)
Percentage
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
1.
2.
3.
[*****]
[*****]
[*****]
Appendix B
Materials Provided (or paid by) by Kamada
6
1ST ADDENDUM TO
SUPPLY AND DISTRIBUTION AGREEMENT
Exhibit 4.32
This 1st Addendum to the Supply & Distribution Agreement signed by and between Kamada Ltd., ("Kamada") and Kedrion S.p.A., ("Kedrion") on 18 July,
2011 (the "Agreement") is entered into this 15th day of October 2016.
WHEREAS:
A.
B.
C.
According to the Agreement, if a phase IV Clinical Trial and/or a post marketing commitment study (collectively, the "Activities") is required by the
FDA, Kedrion and Kamada shall equally bear any costs of such Activities and Kedrion shall conduct the phase IV Clinical Trial and the post
marketing commitment study, if such Activities are required; and
based on the FDA's instractions, the Parties agree to to conduct an Open-label Post-marketing Study of KamRAB Administered as a Single Dose
with Active Rabies Vaccine in Children Exposed to Rabies (KamRAB-004) (the "Study"); and
the Parties wish to specifically define the cost sharing mechnism which shall apply to the Study.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Parties agree as follows:
1.
2.
3.
4.
5.
Any and all 3rd party costs and other direct costs related to the conduct of the Study, including, without limitation, payment to the CRO and to the
sites, fees to be paid to regulatory authorities and any similar expenses, shall be paid to such 3rd parties by Kamada, and Kedrion shall pay Kamada
50% of such payments within [*****] following receipt of applicable invoice, accompanied with the proper documentation. Payments not received
by Kamada when due are subject to a late payment charge at a rate per annum equal to [*****], in accordance with Section 6.3 of the Agreement.
Any internal expenses incurred by either Party, such as cost of either Party's personnel involved in the Study and any related expenses, will be borne
by such Party and will not be.
In addition, Kedrion shall pay Kamada [*****] for the purpose of the Study.
Except where expressly defined herein, the terms written in capital letters or with capital initial letter in this 1st Addendum shall have the same
meaning set forth in the Agreement.
All the other clauses of the Agreement remain unchanged and in full validity between the Parties.
Kedrion – Kamada – 1st Addendum to Supply and Distribution Agreement
Page 1
IN WITNESS WHEREOF, the Parties have caused this 1st Amendment to be executed by their duly authorized representatives, effective on this date first
set forth above.
Kamada Ltd.
Kedrion S.p.A.
By: _____________________________________________
Signature
By: _____________________________________________
Signature
Name: Amir London
Title: CEO
Name: ___________________________________________
Title: ____________________________________________
By: _____________________________________________
Signature
Name: Gil Efron
Title: Deputy CEO and CFO
Date: ____________________________________________
Kedrion – Kamada – 1st Addendum to Supply and Distribution Agreement
Page 2
Our significant subsidiaries are set forth below, all of which are either 100% owned by us or controlled by us.
SIGNIFICANT SUBSIDIARIES
Legal Name
Kamada Biopharma Limited
Kamada Inc.
Bio-Kam Ltd.
Kamada Assets Ltd.
Jurisdiction
England and Wales
Delaware
Israel
Israel
Exhibit 8.1
Exhibit 12.1
I, Amir London, certify that:
1.
I have reviewed this annual report on Form 20-F of Kamada Ltd.;
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 functions):
(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.
Date: February 28, 2017
/s/ Amir London
Amir London
Chief Executive Officer
Exhibit 12.2
I, Gil Efron, certify that:
1.
I have reviewed this annual report on Form 20-F of Kamada Ltd.;
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 functions):
(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.
Date: February 28, 2017
/s/ Gil Efron
Gil Efron
Deputy Chief Executive Officer and Chief Financial Officer
CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER PURSUANT
TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Kamada Ltd. (the “Company”) on Form 20-F for the period ended December 31, 2016 as filed with the
Securities and Exchange Commission (the “Report”), I, Amir London, Chief Executive Officer of the Company, hereby certify pursuant to 18 U.S.C. Section
1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)
the Report fully complies with the requirements of section 13(a) or 15(d), as applicable, 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 operations of the
Company.
Exhibit 13.1
Date: February 28, 2017
/s/ Amir London
Amir London
Chief Executive Officer
In connection with the Annual Report of Kamada Ltd. (the “Company”) on Form 20-F for the period ended December 31, 2016 as filed with the
Securities and Exchange Commission (the “Report”), I, Gil Efron, Deputy Chief Executive Officer and Chief Financial Officer of the Company, hereby
certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)
the Report fully complies with the requirements of section 13(a) or 15(d), as applicable, 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 operations of the
Company.
Date: February 28, 2017
/s/ Gil Efron
Gil Efron
Deputy Chief Executive Officer and Chief Financial Officer
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (File Nos 333-192720, 333-207933 and 333-
215983) of Kamada Ltd. (the “Company”) of our report dated February 28, 2017, with respect to the financial statements of the Company and its subsidiaries
included in this Annual Report on Form 20-F for the year ended December 31, 2016.
Tel Aviv, Israel
February 28, 2017
/S/ KOST, FORER, GABBAY & KASIERER
A member of Ernst & Young Global
Exhibit 15.1