As filed with the Securities and Exchange Commission on September 1,
2023
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
F-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CAN-FITE
BIOPHARMA LTD.
(Exact
name of registrant as specified in its charter)
Israel |
|
Not
Applicable |
(State
or other jurisdiction of
incorporation or organization) |
|
(IRS.
Employer
Identification
No.) |
10
Bareket Street
Kiryat
Matalon, P.O. Box 7537
Petach-Tikva
4951778, Israel
(972)
(3)924-1114
(Address
and telephone number of registrant’s principal executive offices)
Puglisi
& Associates
850
Library Avenue
Newark,
Delaware 19711
(302)
738-6680
(Name,
address and telephone number of agent for service)
Copies
of all communications, including communications sent to agent for service, should be sent to:
Ronen
Kantor, Esq.
Doron
Tikotzky Kantor Gutman, Ness, Amit Gross
and Co.
B.S.R.
4 Tower, 33 Floor
7
Metsada Street,
Bnei
Brak 5126112
Israel
Tel: (+972)
(3) 613-3371 |
|
Gary
Emmanuel, Esq.
Greenberg Traurig, P.A.
One Azrieli Center
Round Tower, 30th Floor
132 Menachem Begin Rd
Tel Aviv, Israel
6701101
+1 212 801 9337
|
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, please check the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. ☐
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging
growth company ☐
If
an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The
Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall
become effective on such date as the SEC, acting pursuant to said Section 8(a), may determine.
The
information in this preliminary prospectus is not complete and may be changed. We may not sell these securities until the
registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not
an offer to sell these securities and we are not soliciting an offer to buy these securities in any state or jurisdiction where the
offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED SEPTEMBER 1, 2023
$100,000,000
Ordinary
Shares
American
Depositary Shares representing Ordinary Shares
Warrants
Subscription
Rights
Units
We
may offer, issue and sell from time to time up to US$100,000,000, or its equivalent in any other currency, currency units, or
composite currency or currencies, of our ordinary shares, including in the form of American Depositary Shares, or ADSs, warrants
to purchase ordinary shares, including in the form of ADSs, subscription rights and a combination of such securities, separately
or as units, in one or more offerings. Each ADS represents 300 ordinary shares. This
prospectus provides a general description of offerings of these securities that we may undertake.
We
refer to our ordinary shares, ADSs, warrants, subscription rights, and units, collectively as “securities” in this
prospectus.
Each
time we sell our securities pursuant to this prospectus, we will provide the specific terms of such offering in a supplement to
this prospectus. The prospectus supplement may also add, update, or change information contained in this prospectus. You should
read this prospectus, the accompanying prospectus supplement, together with the additional information described under the heading
“Where You Can More Find Information About Us,” before you make your investment decision.
We
may, from time to time, offer to sell the securities, through public or private transactions, directly or through underwriters, agents
or dealers, on or off the NYSE American or Tel Aviv Stock Exchange Ltd., or the TASE, as applicable, at prevailing market prices or at
privately negotiated prices. If any underwriters, agents or dealers are involved in the sale of any of these securities, the applicable
prospectus supplement will set forth the names of the underwriter, agent or dealer and any applicable fees, commissions or discounts.
Our
ADSs are listed on the NYSE American under the symbol “CANF”. On August 31, 2023, the closing price of our ADSs on the NYSE
American was US2.94 per ADS. Our ordinary shares also trade on the Tel Aviv Stock Exchange, or TASE, under the symbol “CANF”.
On August 31, 2023, the last reported sale price of our ordinary shares on the TASE was NIS 0.035 or $0.009 per share (based on the exchange
rate reported by the Bank of Israel on the same day).
The
aggregate market value of our outstanding voting and non-voting common equity held by non-affiliates on August 15, 2023, as calculated
in accordance with General Instruction I.B.5. of Form F-3, was approximately $10.9 million. During the prior 12 calendar month period
that ends on, and includes, the date of this prospectus, we have offered securities with an aggregate market value of approximately $5.5
million pursuant to General Instruction I.B.5 of Form F-3.
Investing
in these securities involves a high degree of risk. Please carefully consider the risks discussed in this prospectus under “Risk
Factors” beginning on page 4 and the “Risk Factors” in “Item 3: Key Information- Risk Factors”
of our most recent Annual Report on Form 20-F incorporated by reference in this prospectus and in any applicable prospectus supplement
for a discussion of the factors you should consider carefully before deciding to purchase these securities.
Neither
the U.S. Securities and Exchange Commission, the Israel Securities Authority nor any state or other foreign securities commission
has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
The
date of this prospectus is September , 2023
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, using a “shelf”
registration process. Under this shelf registration process, we may sell our securities described in this prospectus in one or
more offerings up to a total dollar amount of $100,000,000. Each time we offer our securities, we will provide you with a supplement
to this prospectus that will describe the specific amounts, prices and terms of the securities we offer. The prospectus supplement
may also add, update or change information contained in this prospectus. This prospectus, together with applicable prospectus
supplements and the documents incorporated by reference in this prospectus and any prospectus supplements, includes all material
information relating to this offering. Please read carefully both this prospectus and any prospectus supplement together with
additional information described below under “Where You Can Find More Information” and “Incorporation By Reference.”
You
should rely only on the information contained in or incorporated by reference in this prospectus and any applicable prospectus
supplement. We have not authorized anyone to provide you with different or additional information. If anyone provides you with
different or inconsistent information, you should not rely on it. The information contained in this prospectus is accurate only
as of the date of this prospectus, regardless of the time of delivery of this prospectus or any sale of securities described in
this prospectus. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities
in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus
or any prospectus supplement, as well as information we have previously filed with the SEC and incorporated by reference, is accurate
as of the date on the front of those documents only. Our business, financial condition, results of operations and prospects may
have changed since those dates. This prospectus may not be used to consummate a sale of our securities unless it is accompanied
by a prospectus supplement.
Our
financial statements are prepared and presented in accordance with United States generally accepted accounting principles, or
U.S. GAAP. Our historical results do not necessarily indicate our expected results for any future periods.
Market
data and certain industry data and forecasts used throughout this prospectus were obtained from sources we believe to be reliable,
including market research databases, publicly available information, reports of governmental agencies and industry publications
and surveys. We have relied on certain data from third-party sources, including internal surveys, industry forecasts and market
research, which we believe to be reliable based on our management’s knowledge of the industry. Forecasts are particularly
likely to be inaccurate, especially over long periods of time. In addition, we do not necessarily know what assumptions regarding
general economic growth were used in preparing the third-party forecasts we cite. Statements as to our market position are based
on the most currently available data. While we are not aware of any misstatements regarding the industry data presented in this
prospectus, our estimates involve risks and uncertainties and are subject to change based on various factors, including those
discussed under the heading “Risk Factors” in this prospectus.
Certain
figures included in this prospectus have been subject to rounding adjustments. Accordingly, figures shown as totals in certain
tables may not be an arithmetic aggregation of the figures that precede them
In
this prospectus, unless the context otherwise requires:
|
● |
references
to “ADSs” refer to American Depositary Shares representing ordinary shares; |
|
● |
references
to “A3AR” refer to the A3 adenosine receptor; |
|
● |
references
to the “Company,” “we,” “our” and “Can-Fite” refer to Can-Fite BioPharma Ltd.
and its consolidated subsidiary; |
|
● |
references
to the “Companies Law” or “Israeli Companies Law” are to Israel’s Companies Law, 5759-1999,
as amended; |
|
|
|
|
● |
references to the “Israel Securities Law” are to Israel
Securities Law, 5728-1968, as amended; |
|
● |
references
to “dollars,” “U.S. dollars,” “USD” and “$” are to United States Dollars; |
|
● |
references
to “HCC” refer to hepatocellular carcinoma, also known as primary liver cancer; |
|
● |
references to “ordinary shares,” “our shares”
and similar expressions refer to our Ordinary Shares, NIS no par value; |
|
● |
references
to “shekels” and “NIS” are to New Israeli Shekels, the Israeli currency; |
|
● |
references to the “SEC” are to the United States Securities
and Exchange Commission; and |
|
|
|
|
● |
references to the “SLD” are to the steatotic liver disease. |
On January 9, 2023, we effected
a change in the ratio of our ADSs to ordinary shares from one (1) ADS representing thirty (30) ordinary shares to a new ratio of one
(1) ADS representing three hundred (300) ordinary shares. For ADS holders, the ratio change had the same effect as a one-for-ten reverse
ADS split. All ADS and related option and warrant information presented in this prospectus have been retroactively adjusted to reflect
the reduced number of ADSs and the increase in the ADS price which resulted from this action. Unless otherwise indicated, in this prospectus
fractional ADSs have been rounded to the nearest whole number.
We
have not taken any action to permit a public offering of the securities outside the United States or to permit the possession
or distribution of this prospectus outside the United States. Persons outside the United States who come into possession of this
prospectus must inform themselves about and observe any restrictions relating to the offering of the securities and the distribution
of this prospectus outside of the United States.
OUR
BUSINESS
This
summary highlights selected information contained elsewhere in this prospectus that we consider important. This summary does not
contain all of the information you should consider before investing in our securities. You should read this summary together with
the entire prospectus, including the risks related to our business, our industry, investing in our ordinary shares and our location
in Israel, that we describe under “Risk Factors” and our consolidated financial statements and the related notes before
making an investment in our securities.
Overview
We
are a clinical-stage biopharmaceutical company that develops orally bioavailable small molecule therapeutic products for the treatment
of cancer, liver and inflammatory diseases and erectile dysfunction. We are also developing specific formulations of cannabis components
for the treatment of cancer, inflammatory, autoimmune, and metabolic diseases. Our platform technology utilizes the Gi protein associated
A3 adenosine receptor, or A3AR, as a therapeutic target. A3AR is highly expressed in pathological body cells such as inflammatory and
cancer cells, and has a low expression in normal cells, suggesting that the receptor could be a specific target for pharmacological intervention.
Our pipeline of drug candidates are synthetic, highly specific agonists and allosteric modulators targeting the A3AR.
Our
product pipeline is based on the research of Dr. Pnina Fishman, who investigated a clinical observation that tumor metastasis
can be found in most body tissues, but are rarely found in muscle tissue, which constitutes approximately 60% of human body weight.
Dr. Fishman’s research revealed that one reason that striated muscle tissue is resistant to tumor metastasis is that muscle
cells release small molecules which bind with high selectivity to the A3AR. As part of her research, Dr. Fishman also discovered
that A3ARs have significant expression in tumor and inflammatory cells, whereas normal cells have low or no expression of this
receptor. The A3AR agonists and allosteric modulators, currently our pipeline of drug candidates, bind with high selectivity and
affinity to the A3ARs and upon binding to the receptor initiate down-stream signal transduction pathways resulting in apoptosis,
or programmed cell death, of tumors and inflammatory cells and to the inhibition of inflammatory cytokines. Cytokines are proteins
produced by cells that interact with cells of the immune system in order to regulate the body’s response to disease and
infection. Overproduction or inappropriate production of certain cytokines by the body can result in disease.
Our
product candidates, CF101, CF102 and CF602, are being developed to treat cancer, liver and inflammatory diseases, as well as erectile
dysfunction. CF101, also known as Piclidenoson, is in an advance stage of clinical development for the treatment of autoimmune-inflammatory
diseases, including psoriasis. During 2021, we decided to stop developing Piclidenoson for the treatment of COVID-19 to focus on other
indications. CF102, also known as Namodenoson, is being developed for the treatment of HCC and has orphan drug designation for the treatment
of HCC in the United States and Europe. Namodenoson was granted Fast Track designation by the U.S. Food and Drug Administration, or FDA,
as a second line treatment to improve survival for patients with advanced HCC who have previously received Nexavar (sorafenib). Namodenoson
is also being developed for the treatment of SLD, a disease for which no FDA approved therapies currently exist. CF602 is our second generation
allosteric drug candidate for the treatment of erectile dysfunction, which has shown efficacy in the treatment of erectile dysfunction
in preclinical studies and we are investigating additional compounds, targeting A3AR, for the treatment of erectile dysfunction. Preclinical
studies revealed that our drug candidates have potential to treat additional inflammatory diseases, such as Crohn’s disease, oncological
diseases, viral diseases, such as the JC virus, and obesity.
We
believe our pipeline of drug candidates represent a significant market opportunity. For instance, according to iHealthcareAnalyst, the
psoriasis drug market is forecasted to be worth $11.3 billion by 2025. According to DelveInsight, the HCC drug market in the G8 countries
(U.S., Germany, France, Italy, Spain, UK, Japan and China) is expected to reach $3.8 billion by 2027.
We
have in-licensed an allosteric modulator of the A3AR, CF602 from Leiden University. In addition, we have out-licensed the following product
candidates for indications that we are currently pursuing:
|
● |
Piclidenoson for the treatment of (i) psoriasis to Cipher Pharmaceuticals,
or Cipher, for Canada, (ii) psoriasis to Gebro Holding, or Gebro, for Spain, Switzerland and Austria, (iii) psoriasis to CMS Medical,
or CMS, for China (including Hong Kong, Macao and Taiwan), (iv) psoriasis to Kyongbo Pharm Co. Ltd., or Kyongbo Pharm, for South Korea,
(v) psoriasis to Ewopharma AG, or Ewopharma, for Central Eastern Europe, and (vi) osteoarthritis in companion animals including dogs and
cats to Vetbiolix. |
|
● |
Namodenoson for the treatment of (i) liver cancer and SLD to Chong
Kun Dang Pharmaceuticals, or CKD, for South Korea, (ii) advanced liver cancer and SLD to CMS for China (including Hong Kong, Macao and
Taiwan), and (iii) HCC and SLD to Ewopharma, for Central Eastern Europe and Switzerland. |
Currently,
(i) we are doing the preparatory work for psoriasis pivotal Phase III studies with Piclidenoson following the go ahead that has been received
from both the FDA & EA, (ii) we are enrolling patients with advanced liver cancer for a pivotal Phase III study with Namodenoson,
(iii) we are enrolling patients with SLD for a Phase IIb study with Namodenoson, (iv) we are doing the preparatory work for a pancreatic
carcinoma exploratory Phase II study with Namodenoson, (v) we are investigating additional compounds, targeting the A3 adenosine receptor,
for the treatment of erectile dysfunction, and (vi) we are conducting pre-clinical studies with cannabinoids for the treatment of diseases
in which there is an overexpression of A3AR. Since inception, we have incurred significant losses in connection with our research and
development.
Moreover,
we believe characteristics of Piclidenoson, as exhibited in our clinical studies to date, including its good safety profile, clinical
activity, simple and less frequent delivery through oral administration and its low cost of production, position it well against the competition
in psoriasis markets, where treatments, when available, often include injectable drugs, many of which can be highly toxic, expensive and
not always effective.
Like
Piclidenoson, Namodenoson has a good safety profile, is orally administered and has a low cost of goods, which we believe may position
it well in the HCC market, where no drug has yet been approved by the FDA for patients with advanced liver cancer disease defined as Child
Pugh B7. In addition, pre-clinical studies show Namodenoson’s novel mechanism of action which entails de-regulation of three key
signaling pathways which mediate the etiology and pathology of SLD and are responsible for the anti-inflammatory and anti-fibrogenic effect
in the liver. Most recently, pre-clinical data support Namodenoson’s potential utilization as an anti-obesity drug.
Nevertheless,
other drugs on the market, new drugs under development (including drugs that are in more advanced stages of development in comparison
to our drug candidates) and additional drugs that were originally intended for other purposes, but were found effective for purposes targeted
by us, may all be competitive to the current drugs in our pipeline. In fact, some of these drugs are well established and accepted among
patients and physicians in their respective markets, are orally bioavailable, can be efficiently produced and marketed, and are relatively
safe. None of our product candidates have been approved for sale or marketing and, to date, there have been no commercial sales of any
of our product candidates.
RISK
FACTORS
Investing
in our securities involves significant risks. Before making an investment decision, you should carefully consider the risks described
under “Risk Factors” in the applicable prospectus supplement and under Item 3.D. – “Risk Factors”
in our most recent Annual Report on Form 20-F, or any updates in our Reports on Form 6-K, together with all of the other information
appearing in this prospectus or incorporated by reference into this prospectus and any applicable prospectus supplement, in light
of your particular investment objectives and financial circumstances. The risks so described are not the only risks facing us.
Additional risks not presently known to us or that we currently deem immaterial may also impair our business operations. Our business,
financial condition and results of operations could be materially adversely affected by any of these risks. The trading price
of our securities could decline due to any of these risks, and you may lose all or part of your investment. The discussion of
risks includes or refers to forward-looking statements; you should read the explanation of the qualifications and limitations
on such forward-looking statements discussed elsewhere in this prospectus.
OFFER
STATISTICS AND EXPECTED TIMETABLE
We
may sell from time to time pursuant to this prospectus (as may be detailed in prospectus supplements) an indeterminate number
of securities as shall have a maximum aggregate offering price of $100,000,000. The actual per share price of the securities
that we will offer pursuant hereto will depend on a number of factors that may be relevant as of the time of offer (see “Plan
of Distribution” below).
SPECIAL
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus contains forward-looking statements, about our expectations, beliefs or intentions regarding, among other things, our
product development efforts, business, financial condition, results of operations, strategies or prospects. In addition, from
time to time, we or our representatives have made or may make forward-looking statements, orally or in writing. Forward-looking
statements can be identified by the use of forward-looking words such as “believe,” “expect,” “intend,”
“plan,” “may,” “should” or “anticipate” or their negatives or other variations
of these words or other comparable words or by the fact that these statements do not relate strictly to historical or current
matters. These forward-looking statements may be included in, but are not limited to, various filings made by us with the SEC,
press releases or oral statements made by or with the approval of one of our authorized executive officers. Forward-looking statements
relate to anticipated or expected events, activities, trends or results as of the date they are made. Because forward-looking
statements relate to matters that have not yet occurred, these statements are inherently subject to risks and uncertainties that
could cause our actual results to differ materially from any future results expressed or implied by the forward-looking statements.
Many factors could cause our actual activities or results to differ materially from the activities and results anticipated in
forward-looking statements, including, but not limited to, the factors summarized below.
This
prospectus identifies important factors which could cause our actual results to differ materially from those indicated by the
forward-looking statements, particularly those set forth under the heading “Risk Factors.” The risk factors included
in this prospectus 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. Given these uncertainties, readers are cautioned not to place undue
reliance on such forward-looking statements. Factors that could cause our actual results to differ materially from those expressed
or implied in such forward-looking statements include, but are not limited to:
| ● | our
history of losses and needs for additional capital to fund our operations and our inability
to obtain additional capital on acceptable terms, or at all; |
| ● | uncertainties
of cash flows and inability to meet working capital needs; |
| ● | the
initiation, timing, progress and results of our preclinical studies, clinical trials
and other product candidate development efforts; |
| ● | our
ability to advance our product candidates into clinical trials or to successfully complete
our preclinical studies or clinical trials; |
| ● | our
receipt of regulatory approvals for our product candidates, and the timing of other regulatory
filings and approvals; |
| ● | the
clinical development, commercialization and market acceptance of our product candidates; |
| ● | our
ability to establish and maintain strategic partnerships and other corporate collaborations; |
| ● | the
implementation of our business model and strategic plans for our business and product
candidates; |
| ● | the
scope of protection we are able to establish and maintain for intellectual property rights
covering our product candidates and our ability to operate our business without infringing
the intellectual property rights of others; |
| ● | competitive
companies, technologies and our industry; |
| | |
| ● | risks related to any resurgence of the COVID-19 pandemic and the Russian
invasion of Ukraine; |
| ● | risks
related to not satisfying the continued listing requirements of NYSE American; |
| ● | statements as to the impact of the political and security situation
in Israel on our business; and |
| | |
| ● | those factors referred to in our most recent Annual Report on Form
20-F (or any updates in our Reports on Form 6-K) incorporated by reference herein in “Item 3. Key Information - D. Risk Factors,”
“Item 4. Information on the Company,” and “Item 5. Operating and Financial Review and Prospects,” as well as in
our most recent Annual Report on Form 20-F generally, which is incorporated by reference into this prospectus. |
All
forward-looking statements attributable to us or persons acting on our behalf speak only as of the date of this prospectus and
are expressly qualified in their entirety by the cautionary statements included in this prospectus. We undertake no obligations
to update or revise forward-looking statements to reflect events or circumstances that arise after the date made or to reflect
the occurrence of unanticipated events. In evaluating forward-looking statements, you should consider these risks and uncertainties.
USE
OF PROCEEDS
Except
as otherwise provided in the applicable prospectus supplement, we intend to use the net proceeds from the sale of the securities
offered by this prospectus for general corporate purposes, which may include working capital, capital expenditures, research and
development expenditures, regulatory affairs expenditures, clinical trial expenditures, acquisitions of new technologies and investments,
and the repayment, refinancing, redemption or repurchase of future indebtedness or capital stock.
The
intended application of proceeds from the sale of any particular offering of securities using this prospectus will be described
in the accompanying prospectus supplement relating to such offering. The precise amount and timing of the application of these
proceeds will depend on our funding requirements and the availability and costs of other funds.
CAPITALIZATION
The
following table sets forth our capitalization on an actual basis as of June 30, 2023:
The
information in this table should be read in conjunction with and is qualified by reference to the financial statements and notes
thereto and other financial information incorporated by reference into this prospectus.
| |
As June 30,
2023 | |
| |
(Actual) | |
| |
(U.S.$ | |
| |
in thousands) | |
Long-term liabilities: | |
| 1,925 | |
| |
| | |
Shareholders’ equity: | |
| | |
Ordinary shares | |
| - | |
Additional paid-in capital | |
| 160,814 | |
Accumulated other comprehensive loss | |
| 1,127 | |
Accumulated deficit | |
| (155,067 | ) |
| |
| | |
Total shareholder’s equity | |
| 6,874 | |
| |
| | |
Total capitalization (long-term liabilities and equity) | |
| 8,799 | |
DESCRIPTION
OF SHARE CAPITAL
The
following description of our share capital summarizes certain provisions of our Amended and Restated Articles of Association.
Such summaries do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all of the
provisions of our Amended and Restated Articles of Association, copies of which have been filed as exhibits to the registration
statement of which this prospectus forms a part.
Ordinary
Shares
As of August 31, 2023, our
authorized share capital consists of 5,000,000,000 ordinary shares, no par value per share, of which 1,224,837,393 are outstanding.
All of our outstanding ordinary
shares will be validly issued, fully paid and non-assessable. Our ordinary shares are not redeemable and do not have any preemptive rights.
Pursuant to the Israel Securities Law, a company whose shares are traded on the TASE may not have more than one class of shares (subject
to an exception which is not applicable to us), and all outstanding shares must be validly issued and fully paid. Shares and convertible
securities may not be issued without the consent of the Israeli Securities Authority and the TASE and all outstanding shares must be registered
for trading on the TASE.
On January 9, 2023, we effected
a change in the ratio of our ADSs to ordinary shares from one (1) ADS representing thirty (30) ordinary shares to a new ratio of one (1)
ADS representing three hundred (300) ordinary shares. For ADS holders, the ratio change had the same effect as a one-for-ten reverse ADS
split. Unless indicated otherwise by the context, all ordinary share, option, warrant and per share amounts as well as stock prices appearing
in this prospectus have been adjusted to give retroactive effect to the share split for all periods presented.
Registration
Number and Purposes of the Company
Our
number with the Israeli Registrar of Companies is 512022153. Our purpose is set forth in Section 3 of our Amended and Restated
Articles of Association and includes every lawful purpose.
Our
ordinary shares that are fully paid for are issued in registered form and may be freely transferred under our Amended and Restated
Articles of Association, unless the transfer is restricted or prohibited by applicable law or the rules of a stock exchange on
which the shares are traded. The ownership or voting of our ordinary shares by non-residents of Israel is not restricted in any
way by our Amended and Restated Articles of Association or the laws of the State of Israel, except for ownership by nationals
of some countries that are, or have been, in a state of war with Israel.
Pursuant
to the Israeli Companies Law and our Amended and Restated Articles of Association, our board of directors may exercise all powers
and take all actions that are not required under law or under our Amended and Restated Articles of Association to be exercised
or taken by our shareholders, including the power to borrow money for company purposes.
Our
Amended and Restated Articles of Association enable us to increase or reduce our share capital. Any such changes are subject to
the provisions of the Israeli Companies Law and must be approved by a resolution duly passed by our shareholders at a general
or special meeting by voting on such change in the capital. In addition, transactions that have the effect of reducing capital,
such as the declaration and payment of dividends in the absence of sufficient retained earnings and profits and an issuance of
shares for less than their nominal value, require a resolution of our board of directors and court approval.
Dividends
We
may declare a dividend to be paid to the holders of our ordinary shares in proportion to their respective shareholdings. Under
the Israeli Companies Law, dividend distributions are determined by the board of directors and do not require the approval of
the shareholders of a company unless such company’s articles of association provide otherwise. Our Amended and Restated
Articles of Association do not require shareholder approval of a dividend distribution and provide that dividend distributions
may be determined by our board of directors.
Pursuant
to the Israeli Companies Law, we may only distribute dividends from our profits accrued over the previous two years, as defined
in the Israeli Companies Law, according to our then last reviewed or audited financial reports, or we may distribute dividends
with court approval. In each case, we are only permitted to pay a dividend if there is no reasonable concern that payment of the
dividend will prevent us from satisfying our existing and foreseeable obligations as they become due.
Election
of Directors
Our
Amended and Restated Articles of Association provide that the maximum number of members of the Board of Directors is 13. The Board
of Directors is presently comprised of six members.
In February 2020, a special general meeting of our shareholders approved
an amendment to the our Amended and Restated Articles of Association, according to which the Board of Directors, excluding the external
directors, if any (who shall be elected and serve in office in strict accordance with the provisions of the Companies Law, if so required
by the Companies Law), shall consist of three classes of directors as nearly equal in number as practicable, which are appointed for fixed
terms of office in accordance with the Israeli Companies Law and our Amended and Restated Articles of Association, as follows: (i) the
term of office of the initial Class I directors expired at the first annual general meeting of our shareholders held in 2020 and when
their successors were elected and qualified, (ii) the term of office of the initial Class II directors expired at the annual general meeting
of our shareholders held in 2021, and (iii) the term of office of the initial Class III directors expired at the annual general meeting
of our shareholders held in 2022.
Directors (other than external directors), may be elected only in annual
general meetings of our shareholders. At each annual general meeting of our shareholders, commencing with the annual general meeting of
our shareholders held in 2020, each of the successors elected to replace the directors of a class whose term shall have expired at such
annual general meeting of our shareholders shall be elected to hold office until the third annual general meeting of our shareholders
next succeeding his or her election and until his or her respective successor shall have been elected and qualified. Notwithstanding anything
to the contrary, each director shall serve until his or her successor is elected and qualified or until such earlier time as such director’s
office is vacated.
If
the number of directors (excluding external directors) that constitutes the Board of Directors is hereafter changed, the then-serving
directors shall be re-designated to other classes and/or any newly created directorships or decrease in directorships shall be
apportioned by the Board of Directors among the classes so as to make all classes as nearly equal in number as is practicable,
provided that no decrease in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent
director.
Directors
so elected may not be dismissed from office by the shareholders or by a general meeting of our shareholders prior to the expiration
of their term of office. The directors do not receive any benefits upon the expiration of their term of office.
The three classes of directors are Class I Directors, Class II Directors
and Class III Directors. Ilan Cohn serves as our Class II Director until the close of the annual meeting to be held in 2024; Dr. Pnina
Fishman and Mr. Guy Regev serve as our Class III Directors until the close of the annual meeting to be held in 2025; and Abraham Sartani
serves as our Class I Director until the close of the annual meeting to be held in 2026.
Any
amendment, replacement or suspension of our Amended and Restated Articles of Association regarding the election of directors,
as described above, require a majority of 65% of the voting power represented at the general meeting of our shareholders in person
or by proxy and voting thereon, disregarding abstentions from the count of the voting power present and voting, provided that
such majority constitutes more than 20% of our then issued and outstanding share capital.
A
nominee for service as a director in a public company may not be elected without submitting a declaration to the company, prior
to election, specifying that he or she has the requisite qualifications to serve as a director, independent director or external
director (if required), as applicable, and the ability to devote the appropriate time to performing his or her duties as such.
A
director, who ceases to meet the statutory requirements to serve as a director, external director or independent director, as
applicable, must notify the company to that effect immediately and his or her service as a director will expire upon submission
of such notice.
Shareholder
Meetings
Under
Israeli Companies Law, we are required to hold an annual general meeting of our shareholders once every calendar year that must
be no later than 15 months after the date of the previous annual general meeting. All meetings other than the annual general meeting
of shareholders are referred to as special meetings. Our board of directors may call special meetings whenever it sees fit, at
such time and place, within or outside of Israel, as it may determine. In addition, the Israeli Companies Law and our Amended
and Restated Articles of Association provide that our board of directors is required to convene a special meeting upon the written
request of (i) any two of our directors or one quarter of our board of directors or (ii) one or more shareholders holding, in
the aggregate, either (1) 5% of our outstanding shares and 1% of our outstanding voting power or (2) 5% of our outstanding voting
power.
Subject
to the provisions of the Israeli 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 may be between
four and forty days prior to the date of the meeting. Furthermore, the Israeli Companies Law and our Amended and Restated Articles
of Association require that resolutions regarding the following matters must be passed at a general meeting of our shareholders:
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amendments
to our Amended and Restated Articles of Association; |
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appointment
or termination of our auditors; |
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appointment
of directors and appointment and dismissal of external directors; |
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approval
of acts and transactions requiring general meeting approval pursuant to the Israeli Companies Law; |
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director
compensation, indemnification and change of the principal executive officer; |
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increases
or reductions of our authorized share capital; |
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a
merger; and |
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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 required for our proper management. |
The
Israeli Companies Law requires that a notice of any annual or special shareholders meeting be provided at least 21 days prior
to the meeting and if the agenda of the meeting includes the appointment or removal of directors, the approval of transactions
with office holders or interested or related parties, or an approval of a merger, notice must be provided at least 35 days prior
to the meeting.
The
Israeli Companies Law does not allow shareholders of publicly traded companies to approve corporate matters by written consent.
Consequently, our Amended and Restated Articles of Association does not allow shareholders to approve corporate matters by written
consent.
Pursuant
to our Amended and Restated Articles of Association, holders of our ordinary shares have one vote for each ordinary share held
on all matters submitted to a vote before the shareholders at a general meeting.
Quorum
The
quorum required for our general meetings of shareholders consists of at least two shareholders present in person, by proxy or
written ballot who hold or represent between them at least 25% of the total outstanding voting rights.
A
meeting adjourned for lack of a quorum is adjourned to the same day in the following week at the same time and place or on a later
date if so specified in the summons or notice of the meeting. At the reconvened meeting, any number of our shareholders present
in person or by proxy shall constitute a lawful quorum.
Resolutions
Our
Amended and Restated Articles of Association provide that all resolutions of our shareholders require a simple majority vote,
unless otherwise required by applicable law.
Israeli
law provides that a shareholder of a public company may vote in a meeting and in a class meeting by means of a written ballot
in which the shareholder indicates how he or she votes on resolutions relating to the following matters:
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appointment or removal of directors; |
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an
approval of transactions with office holders or interested or related parties; |
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an
approval of a merger or any other matter in respect of which there is a provision in the articles of association providing
that decisions of the general meeting may also be passed by written ballot; |
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authorizing
the chairman of the board of directors or his relative to act as our chief executive officer or act with such authority; or
authorize our chief executive officer or his relative to act as the chairman of the board of directors or act with such authority;
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other
matters which may be prescribed by Israel’s Minister of Justice. |
The
provision allowing the vote by written ballot does not apply where the voting power of the controlling shareholder is sufficient
to determine the vote. Our Amended and Restated Articles of Association provide that our board of directors may prevent voting
by means of a written ballot and this determination is required to be stated in the notice convening the general meeting.
The
Israeli Companies Law provides that a shareholder, in exercising his or her rights and performing his or her obligations toward
the company and its other shareholders, must act in good faith and in a customary manner, and avoid abusing his or her power.
This is required when voting at general meetings on matters such as changes to the articles of association, increasing our registered
capital, mergers and approval of related party transactions. A shareholder also has a general duty to refrain from depriving any
other shareholder of its rights as a shareholder. In addition, any controlling shareholder, any shareholder who knows that its
vote can determine the outcome of a shareholder vote and any shareholder who, under such company’s articles of association,
can appoint or prevent the appointment of an office holder, is required to act with fairness towards the company. The Israeli
Companies Law does not describe the substance of this duty except to state that the remedies generally available upon a breach
of contract will also apply to a breach of the duty to act with fairness, and, to the best of our knowledge, there is no binding
case law that addresses this subject directly.
Under
the Israeli Companies Law, unless provided otherwise in a company’s articles of association, a resolution at a shareholders
meeting requires approval by a simple majority of the voting rights represented at the meeting, in person, by proxy or written
ballot, and voting on the resolution. A resolution for the voluntary winding up of the company requires the approval of holders
of 75% of the voting rights represented at the meeting, in person, by proxy or by written ballot and voting on the resolution.
In
the event of our liquidation, after satisfaction of liabilities to creditors, our assets will be distributed to the holders of
our ordinary shares in proportion to their shareholdings. This right, as well as the right to receive dividends, 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.
Access
to Corporate Records
Under
the Israeli Companies Law, all shareholders of a company generally have the right to review minutes of our general meetings, its
shareholders register and principal shareholders register, articles of association, financial statements and any document it is
required by law to file publicly with the Israeli Companies Registrar and the Israel Securities Authority. Any of our shareholders
may request access to review any document in our possession that relates to any action or transaction with a related party, interested
party or office holder that requires shareholder approval under the Israeli Companies Law. 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 secret or a patent or that
the document’s disclosure may otherwise prejudice our interests.
Acquisitions
under Israeli Law
Full
Tender Offer
A person wishing to acquire shares of a public Israeli company and
who would as a result hold over 90% of the target company’s issued and outstanding share capital or that of a certain class of shares
is required by the Israeli Companies Law to make a tender offer to all of our shareholders for the purchase of all of the issued and outstanding
shares of the company or of the same class, as applicable. If the shareholders who do not accept the offer hold less than 5% of the issued
and outstanding share capital of the company or of the applicable class, all of the shares that the acquirer offered to purchase will
be transferred to the acquirer by operation of law (provided that a majority of the offerees that do not have a personal interest in such
tender offer shall have approved the tender offer except that if the total votes to reject the tender offer represent less than 2% of
the company’s issued and outstanding share capital, in the aggregate, approval by a majority of the offerees that do not have a
personal interest in such tender offer is not required to complete the tender offer). However, a shareholder that had its shares so transferred
may petition the court within six months from the date of acceptance of the full tender offer, whether or not such shareholder agreed
to the tender or not, to determine whether the tender offer was for less than fair value and whether the fair value should be paid as
determined by the court unless the acquirer stipulated in the tender offer that a shareholder that accepts the offer may not seek appraisal
rights. If the shareholders who did not accept the tender offer hold 5% 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 our
issued and outstanding share capital or of the applicable class from shareholders who accepted the tender offer.
Special
Tender Offer
The
Israeli Companies Law provides that an acquisition of shares of a public Israeli 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,
unless one of the exemptions in the Israeli Companies Law is met. This rule does not apply if there is already another holder
of at least 25% of the voting rights in the company. Similarly, the Israeli Companies Law provides that an acquisition of shares
in a public company must be made by means of a tender offer if as a result of the acquisition the purchaser would become a holder
of 45% or more of the voting rights in the company, if there is no other shareholder of the company who holds 45% or more of the
voting rights in the company, unless one of the exemptions in the Israeli Companies Law is met.
A special tender offer must be
extended to all shareholders of a company but the offeror is not required to purchase shares representing more than 5% of the voting
power attached to our outstanding shares, regardless of how many shares are tendered by shareholders. A special tender offer may be consummated
only if (i) at least 5% of the voting power attached to our outstanding shares will be acquired by the offeror and (ii) the special tender
offer is accepted by a majority of the votes of those offerees who gave notice of their position in respect of the offer, excluding the
votes of a holder of control in the offeror, a person who has personal interest in acceptance of the special tender offer, holders of
25% or more of the voting rights in the company or anyone on their behalf, including their relatives and entities controlled by them..
In the event that a special
tender offer is made, a company’s board of directors is required to express its opinion on the advisability of the offer, or shall
abstain from expressing any opinion if it is unable to do so, provided that it gives the reasons for its abstention. In addition, the
board of directors must disclose any personal interest each member of the board of directors has in the offer or stems therefrom. An office
holder in a target company who, in his or her capacity as an office holder, performs an action the purpose of which is to cause the failure
of an existing or foreseeable special tender offer or is to impair the chances of its acceptance, is liable to the potential purchaser
and shareholders for damages resulting from his or her acts, unless such office holder acted in good faith and had reasonable grounds
to believe he or she was acting for the benefit of the company. However, office holders of the target company may negotiate with the potential
purchaser in order to improve the terms of the special tender offer, and may further negotiate with third parties in order to obtain a
competing offer.
If a special tender offer was accepted by a majority of the shareholders
who announced their stand on such offer, then shareholders who did not respond to the special tender offer or had objected to the offer
may accept the offer within four days of the last day set for the acceptance of the offer.
If
a special tender offer is accepted, then the purchaser or any person or entity controlling it or under common control with the
purchaser or such controlling person or entity may not make a subsequent tender offer for the purchase of shares of the target
company and may not enter into 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
Israeli Companies Law permits merger transactions if approved by each party’s board of directors and, unless certain requirements
described under the Israeli Companies Law are met, a majority of each party’s shares voted on the proposed merger at a shareholders’
meeting called with at least 35 days’ prior notice.
For purposes of the shareholder
vote, unless a court rules otherwise, the merger will not be deemed approved if a majority of the shares represented at the shareholders
meeting that are held by parties other than the other party to the merger, or by any person (or group of persons acting in concert) who
holds 25% or more of the outstanding shares or the right to appoint 25% or more of the directors of the other party, 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 or the exclusion of the
votes of certain shareholders as provided above, a court may still approve 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 value of the parties
to the merger and the consideration offered to the shareholders. Pursuant to the Companies Law, if a merger is with a company’s
controlling shareholder or if the controlling shareholder has a personal interest in the merger, then the merger is instead subject to
the same special majority approval that governs all extraordinary transactions with controlling shareholders.
Under the Companies Law, each merging company must send a copy of the
proposed merger plan to its secured creditors. Unsecured creditors are entitled to receive notice of the merger pursuant to regulations
promulgated under the Companies Law. Upon the request of a creditor of either party to the proposed merger, the court may delay or prevent
the merger if it concludes that there exists a reasonable concern that, as a result of the merger, the surviving company will be unable
to satisfy the obligations of any of the parties to the merger, and may further give instructions 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 by each party with the Israeli Registrar of Companies and 30 days have passed from the date the merger was approved
by the shareholders of each party.
Antitakeover
Measures
The
Israeli Companies Law allows us to create and issue shares having rights different from those attached to our ordinary shares,
including shares providing certain preferred rights, distributions or other matters and shares having preemptive rights. As of
the date of this prospectus, we do not have any authorized or issued shares other than our 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 Amended
and Restated Articles of Association which requires the prior approval of the holders of a majority of our shares at a general
meeting. In addition, the rules and regulations of the TASE also limit the terms permitted with respect to a new class of shares
and prohibit any such new class of shares from having voting rights. Shareholders voting in such meeting will be subject to the
restrictions provided in the Israeli Companies Law as described above.
Borrowing
Powers
Under
the Israeli Companies Law and our Amended and Restated Articles of Association, our board of directors may exercise all powers
and take all actions that are not required under law or under our amended and restated articles of association to be exercised
or taken by our shareholders or other corporate bodies, including the power to borrow money for company purposes.
Changes
in Capital
Our
Amended and Restated Articles of Association enable us to increase or reduce our share capital. Any such changes are subject to
the provisions of the Israeli Companies Law and must be approved by a resolution duly passed by our shareholders at a general
meeting by voting on such change in the capital. In addition, transactions that have the effect of reducing capital, such as the
declaration and payment of dividends in the absence of sufficient retained earnings or profits and, in certain circumstances,
an issuance of shares for less than their nominal value, require the approval of both our board of directors and an Israeli court.
DESCRIPTION
OF AMERICAN DEPOSITARY SHARES
The Bank of New York Mellon, as Depositary, will register and deliver
ADSs. Each ADS will represent three hundred (300) ordinary shares (or a right to receive three hundred (300) ordinary shares) deposited
with the principal Tel Aviv office of Bank Hapoalim, as custodian for the Depositary. Each ADS will also represent any other securities,
cash or other property which may be held by the Depositary. The Depositary’s corporate trust office at which the ADSs will be administered
is located at 101 Barclay Street, New York, New York 10286. The Bank of New York Mellon’s principal executive office is located
at One Wall Street, New York, New York 10286.
You
may hold ADSs either (i) directly (a) by having an American Depositary Receipt, or an ADR, which is a certificate evidencing a
specific number of ADSs, registered in your name, or (b) by having ADSs registered in your name in the Direct Registration System,
or DRS, or (ii) indirectly by holding a security entitlement in ADSs through your broker or other financial institution. If you
hold ADSs directly, you are a registered ADS holder, or an ADS holder. The description in this section assumes you are an ADS
holder. If you hold the ADSs indirectly, you must rely on the procedures of your broker or other financial institution to assert
the rights of ADS holders described in this section. You should consult with your broker or financial institution to find out
what those procedures are.
The
DRS is a system administered by The Depository Trust Company, or DTC, pursuant to which the Depositary may register the ownership
of uncertificated ADSs, which ownership is confirmed by periodic statements sent by the Depositary to the registered holders of
uncertificated ADSs.
As an ADS holder, we will not treat you as one of our shareholders
and you will not have shareholder rights. Israeli law governs shareholder rights. The Depositary will be the holder of the shares underlying
your ADSs. As a registered holder of ADSs, you will have ADS holder rights. The Deposit Agreement, or the Deposit Agreement, among us,
the Depositary and you, as an ADS holder, and all other persons indirectly holding ADSs sets out ADS holder rights as well as the rights
and obligations of the Depositary. New York law governs the Deposit Agreement and the ADSs.
The
following is a summary of the material provisions of the Deposit Agreement. For more complete information, you should read the
entire Deposit Agreement and the form of ADS. Directions on how to obtain copies of those documents are provided under “Where
You Can Find More Information”.
Dividends
and Other Distributions
How
will you receive dividends and other distributions on the shares?
The
Depositary has agreed to pay to ADS holders the cash dividends or other distributions it or the custodian receives on shares or
other deposited securities, after deducting its fees and expenses. You will receive these distributions in proportion to the number
of ordinary shares your ADSs represent.
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Cash.
The Depositary will convert any cash dividend or other cash distribution we pay on the shares into U.S. dollars, if it can
do so on a reasonable basis and can transfer the U.S. dollars to the United States. If that is not possible or if any government
approval is needed and cannot be obtained, the Deposit Agreement allows the Depositary to distribute the foreign currency
only to those ADS holders to whom it is possible to do so. It will hold the foreign currency it cannot convert for the account
of the ADS holders who have not been paid. It will not invest the foreign currency and it will not be liable for any interest. |
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Before
making a distribution, any withholding taxes, or other governmental charges that must be paid will be deducted. It will distribute
only whole U.S. dollars and cents and will round fractional cents to the nearest whole cent. If the exchange rates fluctuate
during a time when the Depositary cannot convert the foreign currency, you may lose some or all of the value of the distribution. |
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Shares.
The Depositary may distribute additional ADSs representing any shares we distribute as a dividend or free distribution.
The Depositary will only distribute whole ADSs. It will sell shares which would require it to deliver a fractional ADS and
distribute the net proceeds in the same way as it does with cash. If the Depositary does not distribute additional ADSs, the
outstanding ADSs will also represent the new shares. The Depositary may sell a portion of the distributed shares sufficient
to pay its fees and expenses in connection with that distribution. |
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Rights
to purchase additional shares. If we offer holders of our securities any rights to subscribe for additional shares or
any other rights, the Depositary may make these rights available to ADS holders. If the Depositary decides it is not legal
and practical to make the rights available but that it is practical to sell the rights, the Depositary will use reasonable
efforts to sell the rights and distribute the proceeds in the same way as it does with cash. The Depositary will allow rights
that are not distributed or sold to lapse. In that case, you will receive no value for them. |
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If the Depositary makes rights available to ADS holders, it will exercise the rights and purchase the shares on your behalf. The Depositary will then deposit the shares and deliver ADSs to the persons entitled to them. It will only exercise rights if you pay it the exercise price and any other charges the rights require you to pay. |
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U.S. securities laws may restrict transfers and cancellation of the ADSs represented by shares purchased upon exercise of rights. For example, you may not be able to trade these ADSs freely in the United States. In this case, the Depositary may deliver restricted Depositary shares that have the same terms as the ADSs described in this section except for changes needed to put the necessary restrictions in place. |
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Other
Distributions. The Depositary will send to ADS holders anything else we distribute on deposited securities by any means
it thinks is legal, fair and practicable. If it cannot make the distribution in that way, the Depositary has a choice. It
may decide to sell what we distributed and distribute the net proceeds, in the same way as it does with cash. Or, it may decide
to hold what we distributed, in which case ADSs will also represent the newly distributed property. However, the Depositary
is not required to distribute any securities (other than ADSs) to ADS holders unless it receives satisfactory evidence from
us that it is legal to make that distribution. The Depositary may sell a portion of the distributed securities or property
sufficient to pay its fees and expenses in connection with that distribution. |
The Depositary is not responsible
if it decides that it is unlawful or impracticable to make a distribution available to any ADS holders.
We have no obligation to register
ADSs, shares, rights or other securities under the Securities Act. We also have no obligation to take any other action to permit the
distribution of ADSs, shares, rights or anything else to ADS holders. This means that you may not receive the distributions we
make on our shares or any value for them if it is illegal or impracticable for us to make them available to you.
Deposit,
Withdrawal and Cancellation
How
are ADSs issued?
The
Depositary will deliver ADSs if you or your broker deposit shares or evidence of rights to receive shares with the custodian.
Upon payment of its fees and expenses and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees, the Depositary
will register the appropriate number of ADSs in the names you request and will deliver the ADSs to or upon the order of the person
or persons that made the deposit.
How
can ADS holders withdraw the deposited securities?
You
may surrender your ADSs at the Depositary’s corporate trust office. Upon payment of its fees and expenses and of any taxes
or charges, such as stamp taxes or stock transfer taxes or fees, the Depositary will deliver the shares and any other deposited
securities underlying the ADSs to the ADS holder or a person the ADS holder designates at the office of the custodian. Or, at
your request, risk and expense, the Depositary will deliver the deposited securities at its corporate trust office, if feasible.
How
do ADS holders interchange between certificated ADSs and uncertificated ADSs?
You
may surrender your ADR to the Depositary for the purpose of exchanging your ADR for uncertificated ADSs. The Depositary will cancel
that ADR and will send to the ADS holder a statement confirming that the ADS holder is the registered holder of uncertificated
ADSs. Alternatively, upon receipt by the Depositary of a proper instruction from a registered holder of uncertificated ADSs requesting
the exchange of uncertificated ADSs for certificated ADSs, the Depositary will execute and deliver to the ADS holder an ADR evidencing
those ADSs.
Voting
Rights
How
do you vote?
ADS
holders may instruct the Depositary to vote the number of deposited shares their ADSs represent. The Depositary will notify ADS
holders of shareholders’ meetings and arrange to deliver our voting materials to them if we ask it to. Those materials will
describe the matters to be voted on and explain how ADS holders may instruct the Depositary how to vote. For instructions to be
valid, they must reach the Depositary by a date set by the Depositary. Otherwise, you will not be able to exercise your
right to vote unless you withdraw the shares. To do so, however, you would need to know about the meeting sufficiently in advance
to withdraw the shares.
The
Depositary will try, as far as practical, subject to the laws of Israel and of our Amended and Restated Articles of Association
or similar documents, to vote or to have its agents vote the shares or other deposited securities as instructed by ADS holders.
The Depositary will only vote or attempt to vote as instructed.
We
cannot assure you that you will receive the voting materials in time to ensure that you can instruct the Depositary to vote your
shares. In addition, the Depositary and its agents are not responsible for failing to carry out voting instructions or for the
manner of carrying out voting instructions. This means that you may not be able to exercise your right to vote and there
may be nothing you can do if your shares are not voted as you requested.
In
order to give you a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to deposited
securities, if we request the Depositary to act, we agreed under the Deposit Agreement to give the Depositary notice of any such
meeting and details concerning the matters to be voted upon not less than 45 days in advance of the meeting date.
Fees
and Expenses
Persons depositing or withdrawing shares
or ADS holders must
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$5.00
(or less) per 100 ADSs (or portion of 100 ADSs) |
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Issuance
of ADSs, including issuances resulting from a distribution of shares or rights or other property |
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Cancellation
of ADSs for the purpose of withdrawal, including if the Deposit Agreement terminates |
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$.05 (or
less) per ADS |
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Any
cash distribution to ADS holders |
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A
fee equivalent to the fee that would be payable if securities distributed to you had been shares and the shares had been deposited
for issuance of ADSs |
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Distribution
of securities distributed to holders of deposited securities which are distributed by the Depositary to ADS holders |
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$.05
(or less) per ADSs per calendar year |
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● |
Depositary
services |
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Registration
or transfer fees |
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Transfer
and registration of shares on our share register to or from the name of the Depositary or its agent when you deposit or withdraw
shares |
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Expenses
of the Depositary |
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Cable,
telex and facsimile transmissions (when expressly provided in the Deposit Agreement) |
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Converting
foreign currency to U.S. dollars |
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Taxes
and other governmental charges the Depositary or the custodian have to pay on any ADS or share underlying an ADS, for example,
stock transfer taxes, stamp duty or withholding taxes |
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As necessary |
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Any
charges incurred by the Depositary or its agents for servicing the deposited securities |
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As necessary |
The
Depositary collects its fees for delivery and surrender of ADSs directly from investors depositing shares or surrendering ADSs
for the purpose of withdrawal or from intermediaries acting for them. The Depositary collects fees for making distributions to
investors by deducting those fees from the amounts distributed or by selling a portion of distributable property to pay the fees.
The Depositary may collect its annual fee for depositary services by deduction from cash distributions, by directly billing investors
or by charging the book-entry system accounts of participants acting for them. The Depositary may generally refuse to provide
fee-attracting services until its fees for those services are paid.
From
time to time, the Depositary may make payments to us to reimburse us for expenses and/or share revenue with us from the fees collected
from ADS holders, or waive fees and expenses for services provided, generally relating to costs and expenses arising out of the
establishment and maintenance of the ADS program. In performing its duties under the Deposit Agreement, the Depositary may use
brokers, dealers or other service providers that are affiliates of the Depositary and that may earn or share fees or commissions.
Payment
of Taxes
You
will be responsible for any taxes or other governmental charges payable on your ADSs or on the deposited securities represented
by any of your ADSs. The Depositary may refuse to register any transfer of your ADSs or allow you to withdraw the deposited securities
represented by your ADSs until such taxes or other charges are paid. It may apply payments owed to you or sell deposited securities
represented by your ADSs to pay any taxes owed and you will remain liable for any deficiency. If the Depositary sells deposited
securities, it will, if appropriate, reduce the number of ADSs to reflect the sale and pay to ADS holders any proceeds, or send
to ADS holders any property, remaining after it has paid the taxes.
Reclassifications,
Recapitalizations and Mergers
If we: |
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Then: |
● |
Change the nominal or par value of our ordinary shares |
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The cash, shares or other securities received by the Depositary will become deposited securities. Each ADS will automatically represent its equal share of the new deposited securities. |
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Reclassify, split up or consolidate any of the deposited securities |
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Distribute securities on the shares that are not distributed to you |
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The Depositary may, and will if we ask it to, distribute some or all of the cash, shares or other securities it received. It may also deliver new ADRs or ask you to surrender your outstanding ADRs in exchange for new ADRs identifying the new deposited securities. |
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Recapitalize, reorganize, merge, liquidate, sell all or substantially all of our assets, or take any similar action |
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Amendment
and Termination
How
may the Deposit Agreement be amended?
We
may agree with the Depositary to amend the Deposit Agreement and the ADRs without your consent for any reason. If an amendment
adds or increases fees or charges, except for taxes and other governmental charges or expenses of the Depositary for registration
fees, facsimile costs, delivery charges or similar items, or prejudices a substantial right of ADS holders, it will not become
effective for outstanding ADSs until 30 days after the Depositary notifies ADS holders of the amendment. At the time an
amendment becomes effective, you are considered, by continuing to hold your ADSs, to agree to the amendment and to be bound by
the ADRs and the Deposit Agreement, as amended.
How
may the Deposit Agreement be terminated?
The
Depositary will terminate the Deposit Agreement at our direction by mailing notice of termination to the ADS holders then outstanding
at least 30 days prior to the date fixed in such notice for such termination. The Depositary may also terminate the Deposit Agreement
by mailing notice of termination to us and the ADS holders if 60 days have passed since the Depositary told us it wants to resign
but a successor depositary has not been appointed and accepted its appointment.
After
termination, the Depositary and its agents will do the following under the Deposit Agreement, but nothing else: collect distributions
on the deposited securities, sell rights and other property, and deliver shares and other deposited securities upon cancellation of ADSs.
Four months after termination, the Depositary may sell any remaining deposited securities by public or private sale. After that, the
Depositary will hold the money it received on the sale, as well as any other cash it is holding under the Deposit Agreement for the pro
rata benefit of the ADS holders that have not surrendered their ADSs. It will not invest the money and has no liability for interest.
The Depositary’s only obligations will be to account for the money and other cash. After termination, our only obligations will
be to indemnify the Depositary and to pay fees and expenses of the Depositary that we agreed to pay.
Limitations
on Obligations and Liability
Limits
on our Obligations and the Obligations of the Depositary; Limits on Liability to ADS Holders
The
Deposit Agreement expressly limits our obligations and the obligations of the Depositary. It also limits our liability and the
liability of the Depositary. We and the Depositary:
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● |
are
only obligated to take the actions specifically set forth in the Deposit Agreement without negligence or bad faith; |
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are
not liable if we are or it is prevented or delayed by law or circumstances beyond our control from performing our or its obligations
under the Deposit Agreement; |
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are
not liable if we or it exercises discretion permitted under the Deposit Agreement; |
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are
not liable for the inability of any holder of ADSs to benefit from any distribution on deposited securities that is not made
available to holders of ADSs under the terms of the Deposit Agreement, or for any special, consequential or punitive damages
for any breach of the terms of the Deposit Agreement; |
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have
no obligation to become involved in a lawsuit or other proceeding related to the ADSs or the Deposit Agreement on your behalf
or on behalf of any other person; and |
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may
rely upon any documents we believe or it believes in good faith to be genuine and to have been signed or presented by the
proper person. |
In
the Deposit Agreement, we and the Depositary agree to indemnify each other under certain circumstances.
Requirements
for Depositary Actions
Before
the Depositary will deliver or register a transfer of an ADS, make a distribution on an ADS, or permit withdrawal of shares, the
Depositary may require:
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● |
payment
of stock transfer or other taxes or other governmental charges and transfer or registration fees charged by third parties
for the transfer of any shares or other deposited securities; |
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satisfactory
proof of the identity and genuineness of any signature or other information it deems necessary; and |
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compliance
with regulations it may establish, from time to time, consistent with the Deposit Agreement, including presentation of transfer
documents. |
The
Depositary may refuse to deliver ADSs or register transfers of ADSs generally when the transfer books of the Depositary or our
transfer books are closed or at any time if the Depositary or we think it advisable to do so.
Your
Right to Receive the Shares Underlying your ADSs
ADS
holders have the right to cancel their ADSs and withdraw the underlying shares at any time except:
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when
temporary delays arise because: (i) the Depositary has closed its transfer books or we have closed our transfer books; (ii)
the transfer of shares is blocked to permit voting at a shareholders’ meeting; or (iii) we are paying a dividend on
our ordinary shares; |
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when
you owe money to pay fees, taxes and similar charges; or |
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when
it is necessary to prohibit withdrawals in order to comply with any laws or governmental regulations that apply to ADSs or
to the withdrawal of shares or other deposited securities. |
This
right of withdrawal may not be limited by any other provision of the Deposit Agreement.
Pre-release
of ADSs
Subject
to the provisions of the Deposit Agreement, the Depositary may issue ADSs before deposit of the underlying shares. This is called
a pre-release of ADSs. The Depositary may also deliver shares prior to the receipt and cancellation of pre-released ADSs even
if the ADSs are cancelled before the pre-release transaction has been closed out. A pre-release is closed out as soon as the underlying
shares are delivered to the Depositary. The Depositary may receive ADSs instead of shares to close out a pre-release. The Depositary
may pre-release ADSs only under the following conditions:
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● |
before
or at the time of the pre-release, the person to whom the pre-release is being made must represent to the Depositary in writing
that it or its customer, as the case may be, (i) owns the shares or ADSs to be remitted, (ii) will assign all beneficial rights,
title and interest in the ADSs or shares to the Depositary and for the benefit of the ADS holders, and (iii) will not take
any action with respect to the ADSs or shares that is inconsistent with the assignment of beneficial ownership (including,
without the consent of the Depositary, disposing of the ADSs or shares) other than in satisfaction of the pre-release; |
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the
pre-release must be fully collateralized with cash or collateral that the Depositary considers appropriate; and |
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the
Depositary must be able to close out the pre-release on not more than five business days’ notice. |
The
pre-release will be subject to whatever indemnities and credit regulations that the Depositary considers appropriate. In addition,
the Depositary will limit the number of ADSs that may be outstanding at any time as a result of pre-release, although the Depositary
may disregard the limit from time to time, if it thinks it is appropriate to do so. At our instruction, a pre-release may be discontinued
entirely.
Direct
Registration System
In
the Deposit Agreement, all parties to the Deposit Agreement acknowledge that the DRS and Profile Modification System, or Profile,
will apply to uncertificated ADSs upon acceptance thereof to DRS by DTC. DRS is the system administered by DTC under which the
Depositary may register the ownership of uncertificated ADSs, which ownership will be evidenced by periodic statements sent by
the Depositary to the registered holders of uncertificated ADSs. Profile is a required feature of DRS that allows a DTC participant,
claiming to act on behalf of a registered holder of ADSs, to direct the Depositary to register a transfer of those ADSs to DTC
or its nominee and to deliver those ADSs to the DTC account of that DTC participant without receipt by the Depositary of prior
authorization from the ADS holder to register that transfer.
In
connection with and in accordance with the arrangements and procedures relating to DRS/Profile, the parties to the Deposit Agreement
understand that the Depositary will not determine whether the DTC participant that is claiming to be acting on behalf of an ADS
holder in requesting registration of transfer and delivery described in the paragraph above has the actual authority to act on
behalf of the ADS holder (notwithstanding any requirements under the Uniform Commercial Code). In the Deposit Agreement, the parties
agree that the Depositary’s reliance on and compliance with instructions received by the Depositary through the DRS/Profile
and in accordance with the Deposit Agreement will not constitute negligence or bad faith on the part of the Depositary.
Shareholder
Communications; Inspection of Register ADS Holders
The
Depositary will make available for your inspection at its office all communications that it receives from us as a holder of deposited
securities that we make generally available to holders of deposited securities. The Depositary will send you copies of those communications
if we ask it to. You have a right to inspect the register of holders of ADSs, but not for the purpose of contacting those holders
about a matter unrelated to our business or the ADSs.
Disclosure
of Beneficial Ownership
We
may from time to time request that ADS holders provide information as to the capacity in which they hold ADSs or a beneficial
interest in such ADSs and regarding the identity of any other persons then or previously having a beneficial interest in ADSs,
and the nature of such interest and various other matters. ADS holders agree to provide such information reasonably requested
by us pursuant to the Deposit Agreement. The Depositary agrees to comply with reasonable written instructions received from time
to time from us requesting that the Depositary forward any such written requests to the Owners and to forward to us any such responses
to such requests received by the Depositary.
Each
ADS holder agrees to comply with any applicable provision of Israeli law with regard to the notification to us of the holding
or proposed holding of certain interests in the underlying ordinary shares and the obtaining of certain consents, to the same
extent as if such ADS holder were a registered holder or beneficial owner of the underlying ordinary shares. The Depositary is
not required to take any action with respect to such compliance on behalf of any ADS holder, including the provision of the notifications
described below.
As
of the date of the Deposit Agreement, under Israeli law, persons who hold a direct or indirect interest in 5% or more of the voting
securities of us (including persons who hold such an interest through the holding of ADSs) are required to give written notice
of their interest and any subsequent changes in their interest to us within the timeframes set forth in Israeli law. The foregoing
is a summary of the relevant provision of Israeli law and does not purport to be a complete review of this or other provisions
that may be applicable to ADS holders. We undertake no obligation to update this summary in the future.
DESCRIPTION
OF WARRANTS
We
may issue and offer warrants under the material terms and conditions described in this prospectus and any accompanying prospectus
supplement. The accompanying prospectus supplement may add, update or change the terms and conditions of the warrants as described
in this prospectus.
We
may issue warrants to purchase our ordinary shares, including shares represented by ADSs. Warrants may be issued independently
or together with any securities and may be attached to or separate from those securities. The warrants may be issued under warrant
or subscription agreements to be entered into between us and a bank or trust company, as warrant agent, all of which will be described
in the prospectus supplement relating to the warrants we are offering. The warrant agent will act solely as our agent in connection
with the warrants and will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners
of warrants.
The
particular terms of the warrants, the warrant or subscription agreements relating to the warrants and the warrant certificates
representing the warrants will be described in the applicable prospectus supplement, including, as applicable:
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the
title of such warrants; |
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the
aggregate number of such warrants; |
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the
price or prices at which such warrants will be issued and exercised; |
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the
currency or currencies in which the price of such warrants will be payable; |
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the
securities purchasable upon exercise of such warrants; |
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the
date on which the right to exercise such warrants shall commence and the date on which such right shall expire; |
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if
applicable, the minimum or maximum amount of such warrants which may be exercised at any one time; |
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if
applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants
issued with each such security; |
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if
applicable, the date on and after which such warrants and the related securities will be separately transferable; |
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if
applicable, any provisions for cashless exercise of the warrants; |
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if
applicable; any exercise limitations with respect to the ownership limitations by the holder exercising the warrant; |
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information
with respect to book-entry procedures, if any; |
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any
material Israeli and United States federal income tax consequences; |
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the
anti-dilution provisions of the warrants, if any; and |
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any
other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants. |
Holders
of warrants will not be entitled, solely by virtue of being holders, to vote, to consent, to receive dividends, to receive notice
as shareholders with respect to any meeting of shareholders for the election of directors or any other matters, or to exercise
any rights whatsoever as a holder of the equity securities purchasable upon exercise of the warrants.
The
description in the applicable prospectus supplement of any warrants we offer will not necessarily be complete and will be qualified
in its entirety by reference to the applicable warrant agreement and form of warrant certificate, which will be filed with the
SEC. For more information on how you can obtain copies of the applicable warrant agreement if we offer warrants, see “Where
You Can Find More Information” beginning on page 26 and “Incorporation of Information by Reference” beginning
on page 27. We urge you to read any applicable prospectus supplement and the applicable warrant agreement and form of warrant
certificate in their entirety.
DESCRIPTION
OF SUBSCRIPTION RIGHTS
We
may issue subscription rights to purchase our ordinary shares and/or our ADSs. These subscription rights may be issued independently
or together with any other security offered hereby and may or may not be transferable by the shareholder receiving the subscription
rights in such offering. In connection with any offering of subscription rights, we may enter into a standby arrangement with
one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase
any securities remaining unsubscribed for after such offering.
The
prospectus supplement relating to any subscription rights we offer, if any, will, to the extent applicable, include specific terms
relating to the offering, including some or all of the following:
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the
price, if any, for the subscription rights; |
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the
exercise price payable for each ordinary share and/or ADS upon the exercise of the subscription rights; |
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the
number of subscription rights to be issued to each shareholder; |
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the
number and terms of the ordinary shares and/or ADSs which may be purchased per each subscription right; |
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the
extent to which the subscription rights are transferable; |
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any
other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise
of the subscription rights; |
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the
date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights
shall expire; |
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the
extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities;
and |
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if
applicable, the material terms of any standby underwriting or purchase arrangement which may be entered into by us in connection
with the offering of subscription rights. |
The
description in the applicable prospectus supplement of any subscription rights we offer will not necessarily be complete and will
be qualified in its entirety by reference to the applicable subscription right agreement, which will be filed with the SEC if
we offer subscription rights. For more information on how you can obtain copies of the applicable subscription right agreement
if we offer subscription rights, see “Where You Can Find More Information” beginning on page 26 and “Incorporation
of Information by Reference” beginning on page 27. We urge you to read the applicable subscription right agreement and any
applicable prospectus supplement in their entirety.
DESCRIPTION
OF UNITS
We
may issue units comprised of one or more of the other securities described in this prospectus in any combination. Each unit will
be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit
will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may
provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before
a specified date.
The
applicable prospectus supplement will describe:
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the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately; |
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any
unit agreement under which the units will be issued; |
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units;
and |
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whether
the units will be issued in fully registered or global form. |
The
applicable prospectus supplement will describe the terms of any units. The preceding description and any description of units
in the applicable prospectus supplement does not purport to be complete and is subject to and is qualified in its entirety by
reference to the unit agreement and, if applicable, collateral arrangements and depositary arrangements relating to such units.
For more information on how you can obtain copies of the applicable unit agreement if we offer units, see “Where You Can
Find More Information” beginning on page 26 and “Incorporation of Information by Reference” beginning on page
27. We urge you to read the applicable unit agreement and any applicable prospectus supplement in their entirety.
TAXATION
The
material Israeli and U.S. federal income tax consequences relating to the purchase, ownership and disposition of any of the securities
offered by this prospectus will be set forth in the prospectus supplement offering those securities.
PLAN
OF DISTRIBUTION
The
securities being offered by this prospectus may be sold:
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through
agents; |
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to
or through one or more underwriters on a firm commitment or agency basis; |
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through
put or call option transactions relating to the securities; |
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to
or through dealers, who may act as agents or principals, including a block trade (which may involve crosses) in which a broker
or dealer so engaged will attempt to sell as agent but may position and resell a portion of the block as principal to facilitate
the transaction; |
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through
privately negotiated transactions; |
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purchases
by a broker or dealer as principal and resale by such broker or dealer for its own account pursuant to this prospectus; |
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directly
to purchasers, including our affiliates, through a specific bidding or auction process, on a negotiated basis or otherwise;
to or through one or more underwriters on a firm commitment or best efforts basis; |
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exchange
distributions and/or secondary distributions; |
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ordinary
brokerage transactions and transactions in which the broker solicits purchasers; |
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in
“at-the-market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act to or through a market maker
or into an existing trading market, on an exchange or otherwise; |
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transactions
not involving market makers or established trading markets, including direct sales or privately negotiated transactions; |
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transactions
in options, swaps or other derivatives that may or may not be listed on an exchange; |
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through
any other method permitted pursuant to applicable law; or |
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through
a combination of any such methods of sale. |
At
any time a particular offer of the securities covered by this prospectus is made, a revised prospectus or prospectus supplement,
if required, will be distributed which will set forth the aggregate amount of securities covered by this prospectus being offered
and the terms of the offering, including the name or names of any underwriters, dealers, brokers or agents, any discounts, commissions,
concessions and other items constituting compensation from us and any discounts, commissions or concessions allowed or re-allowed
or paid to dealers. Such prospectus supplement, and, if necessary, a post-effective amendment to the registration statement of
which this prospectus is a part, will be filed with the SEC to reflect the disclosure of additional information with respect to
the distribution of the securities covered by this prospectus. In order to comply with the securities laws of certain states,
if applicable, the securities sold under this prospectus may only be sold through registered or licensed broker-dealers. In addition,
in some states the securities may not be sold unless they have been registered or qualified for sale in the applicable state or
an exemption from registration or qualification requirements is available and is complied with.
The
distribution of securities may be effected from time to time in one or more transactions, including block transactions and transactions
on the NYSE American or any other organized market where the securities may be traded. The securities may be sold at a fixed price
or prices, which may be changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing market
prices or at negotiated prices. The consideration may be cash or another form negotiated by the parties. Agents, underwriters
or broker-dealers may be paid compensation for offering and selling the securities. That compensation may be in the form of discounts,
concessions or commissions to be received from us or from the purchasers of the securities. Any dealers and agents participating
in the distribution of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities
may be deemed to be underwriting discounts. If any such dealers or agents were deemed to be underwriters, they may be subject
to statutory liabilities under the Securities Act.
Agents
may from time to time solicit offers to purchase the securities. If required, we will name in the applicable prospectus supplement
any agent involved in the offer or sale of the securities and set forth any compensation payable to the agent. Unless otherwise
indicated in the prospectus supplement, any agent will be acting on a best efforts basis for the period of its appointment. Any
agent selling the securities covered by this prospectus may be deemed to be an underwriter, as that term is defined in the Securities
Act, of the securities.
To
the extent that we make sales to or through one or more underwriters or agents in at-the-market offerings, we will do so pursuant
to the terms of a distribution agreement between us and the underwriters or agents. If we engage in at-the-market sales pursuant
to a distribution agreement, we will sell any of our listed securities to or through one or more underwriters or agents, which
may act on an agency basis or on a principal basis. During the term of any such agreement, we may sell any of our listed securities
on a daily basis in exchange transactions or otherwise as we agree with the underwriters or agents. The distribution agreement
will provide that any of our listed securities which are sold will be sold at prices related to the then prevailing market prices
for our listed securities. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be
determined at this time and will be described in a prospectus supplement. Pursuant to the terms of the distribution agreement,
we also may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase, blocks of our listed
securities. The terms of each such distribution agreement will be set forth in more detail in a prospectus supplement to this
prospectus.
If
underwriters are used in a sale, securities will be acquired by the underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale, or under delayed delivery contracts or other contractual commitments. Securities may be offered
to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. If an underwriter or underwriters are used in the sale of securities, an underwriting agreement
will be executed with the underwriter or underwriters, as well as any other underwriter or underwriters, with respect to a particular
underwritten offering of securities, and will set forth the terms of the transactions, including compensation of the underwriters
and dealers and the public offering price, if applicable. The prospectus and prospectus supplement will be used by the underwriters
to resell the securities.
If
a dealer is used in the sale of the securities, we or an underwriter will sell the securities to the dealer, as principal. The
dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. To
the extent required, we will set forth in the prospectus supplement the name of the dealer and the terms of the transactions.
We
may directly solicit offers to purchase the securities and may make sales of securities directly to institutional investors or
others. These persons may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of
the securities. To the extent required, the prospectus supplement will describe the terms of any such sales, including the terms
of any bidding or auction process, if used.
Agents,
underwriters and dealers may be entitled under agreements which may be entered into with us to indemnification by us against specified
liabilities, including liabilities incurred under the Securities Act, or to contribution by us to payments they may be required
to make in respect of such liabilities. If required, the prospectus supplement will describe the terms and conditions of the indemnification
or contribution. Some of the agents, underwriters or dealers, or their affiliates may be customers of, engage in transactions
with or perform services for us or our subsidiaries.
Any
person participating in the distribution of securities registered under the registration statement that includes this prospectus
will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and the applicable
SEC rules and regulations, including, among others, Regulation M, which may limit the timing of purchases and sales of any of
our securities by that person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of
our securities to engage in market-making activities with respect to our securities. These restrictions may affect the marketability
of our securities and the ability of any person or entity to engage in market-making activities with respect to our securities.
Certain
persons participating in an offering may engage in over-allotment, stabilizing transactions, short-covering transactions, penalty
bids and other transactions that stabilize, maintain or otherwise affect the price of the offered securities. These activities
may maintain the price of the offered securities at levels above those that might otherwise prevail in the open market, including
by entering stabilizing bids, effecting syndicate covering transactions or imposing penalty bids, each of which is described below:
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a
stabilizing bid means the placing of any bid, or the effecting of any purchase, for the purpose of pegging, fixing or maintaining
the price of a security. |
|
● |
a
syndicate covering transaction means the placing of any bid on behalf of the underwriting syndicate or the effecting of any
purchase to reduce a short position created in connection with the offering. |
|
● |
a
penalty bid means an arrangement that permits the managing underwriter to reclaim a selling concession from a syndicate member
in connection with the offering when offered securities originally sold by the syndicate member are purchased in syndicate
covering transactions. |
These
transactions may be effected on an exchange or automated quotation system, if the securities are listed on that exchange or admitted
for trading on that automated quotation system, or in the over-the-counter market or otherwise.
If
so indicated in the applicable prospectus supplement, we will authorize agents, underwriters or dealers to solicit offers from
certain types of institutions to purchase offered securities from us at the public offering price set forth in such prospectus
supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. Such contracts
will be subject only to those conditions set forth in the prospectus supplement and the prospectus supplement will set forth the
commission payable for solicitation of such contracts.
In
addition, ordinary shares, ADSs or warrants may be issued upon conversion of or in exchange for debt securities or other securities.
Any
underwriters to whom offered securities are sold for public offering and sale may make a market in such offered securities, but
such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The offered
securities may or may not be listed on a national securities exchange. No assurance can be given that there will be a market for
the offered securities.
Any
securities that qualify for sale pursuant to Rule 144 or Regulation S under the Securities Act, may be sold under Rule 144 or
Regulation S rather than pursuant to this prospectus.
In
connection with offerings made through underwriters or agents, we may enter into agreements with such underwriters or agents pursuant
to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection
with these arrangements, the underwriters or agents may also sell securities covered by this prospectus to hedge their positions
in these outstanding securities, including in short sale transactions. If so, the underwriters or agents may use the securities
received from us under these arrangements to close out any related open borrowings of securities.
We
may enter into derivative transactions with third parties or sell securities not covered by this prospectus to third parties in
privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, such
third parties (or affiliates of such third parties) may sell securities covered by this prospectus and the applicable prospectus
supplement, including in short sale transactions. If so, such third parties (or affiliates of such third parties) may use securities
pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of shares, and may
use securities received from us in settlement of those derivatives to close out any related open borrowings of shares. The third
parties (or affiliates of such third parties) in such sale transactions will be underwriters and will be identified in the applicable
prospectus supplement (or a post-effective amendment).
We
may loan or pledge securities to a financial institution or other third party that in turn may sell the securities using this
prospectus. Such financial institution or third party may transfer its short position to investors in our securities or in connection
with a simultaneous offering of other securities offered by this prospectus or in connection with a simultaneous offering of other
securities offered by this prospectus.
EXPERTS
The consolidated financial statements of Can-Fite Biopharma Ltd. appearing in the Can-Fite Biopharma Ltd. Annual Report (Form 20-F) for
the year ended December 31, 2022, have been audited by Kost Forer Gabbay & Kasierer, a Member of Ernst & Young Global, independent
registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm
as experts in accounting and auditing.
LEGAL
MATTERS
Greenberg Traurig, P.A., Tel
Aviv, Israel, has passed upon certain legal matters regarding the securities offered hereby under U.S. law, and Doron, Tikotzky, Kantor,
Gutman, Ness, Amit Gross and Co., Bnei Brak, Israel, has passed upon certain legal matters regarding the securities offered hereby under
Israeli law. If the securities are distributed in an underwritten offering, certain legal matters will be passed upon for the underwriters
by counsel identified in the applicable prospectus supplement.
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed with the SEC a registration statement on Form F-3 under the Securities Act, with respect to the securities offered
by this prospectus. This prospectus, which constitutes a part of the registration statement, summarizes material provisions of
contracts and other documents that we refer to in the prospectus. Since this prospectus does not contain all of the information
contained in the registration statement, you should read the registration statement and its exhibits and schedules for further
information with respect to us and our ordinary shares and the ADSs. Our SEC filings, including the registration statement, are
also available to you on the SEC’s Web site at http://www.sec.gov.
In
addition, since our ordinary shares are traded on the TASE, in the past we filed Hebrew language periodic and immediate reports
with, and furnished information to, the TASE and the Israel Securities Authority, or the ISA, as required under Chapter Six of
the Israel Securities Law, 1968. On March 31, 2014, we transitioned solely to U.S. reporting standards in accordance
with an applicable exemption under the Israel Securities Law. Copies of our SEC filings and submissions are submitted
to the Israeli Securities Authority and TASE. Such copies can be retrieved electronically through the MAGNA distribution
site of the Israeli Securities Authority (www.magna.isa.gov.il) and the TASE website (maya.tase.co.il).
We
are subject to the information reporting requirements of the Exchange Act that are applicable to foreign private issuers, and
under those requirements we file reports with the SEC. Those other reports or other information may be inspected without charge
at the locations described above. As a foreign private issuer, we are exempt from the rules under the Exchange Act related to
the furnishing and content of proxy statements, and our officers, directors and principal shareholders are exempt from the reporting
and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we are not required
under the Exchange Act to file annual, quarterly and current reports and financial statements with the SEC as frequently or as
promptly as United States companies whose securities are registered under the Exchange Act. However, we file with the SEC, within
four months after the end of each fiscal year, or such applicable time as required by the SEC, an annual report on Form 20-F
containing financial statements audited by an independent registered public accounting firm, and submit to the SEC, on Form 6-K,
unaudited quarterly financial information for the first three quarters of each fiscal year within 60 days after the end of
each such quarter, or such applicable time as required by the SEC.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We
file annual and special reports and other information with the SEC (File Number 001-36203). These filings contain important information
that does not appear in this prospectus. The SEC allows us to “incorporate by reference” information into this prospectus,
which means that we can disclose important information to you by referring you to other documents which we have filed or will
file with the SEC. We are incorporating by reference in this prospectus the documents listed below and all amendments or supplements
we may file to such documents, as well as any future filings we may make with the SEC on Form 20-F under the Exchange Act before
the time that all of the securities offered by this prospectus have been sold or de-registered:
|
● |
our annual report on Form 20-F for the year ended December 31, 2022 filed with the SEC on March 30, 2023; |
|
● |
our Form 6-Ks furnished with the SEC on March 30, 2023, April 10, 2023, April 24, 2023, May 2, 2023, May 9, 2023, May 30, 2023, June 1, 2023, June 13, 2023, June 23, 2023, June 29, 2023, July 17, 2023, July 31, 2023, August 7, 2023, August 18, 2023 and August 31, 2023 (in each case, to the extent expressly incorporated by reference into our effective registration statements on Form F-3); and |
|
● |
The description of our ordinary shares contained in Exhibit 2.1 to our Annual Report on Form 20-F for the year ended December 31, 2022, filed with the SEC on March 30, 2023, including any amendment or report filed with the SEC for the purpose of updating such description. |
In
addition, any reports on Form 6-K submitted to the SEC by us pursuant to the Exchange Act after the date of the initial registration
statement and prior to effectiveness of the registration statement that we specifically identify in such forms as being incorporated
by reference into the registration statement of which this prospectus forms a part and all subsequent annual reports on Form 20-F
filed after the effective date of this registration statement and prior to the termination of this offering and any reports on
Form 6-K subsequently submitted to the SEC or portions thereof that we specifically identify in such forms as being incorporated
by reference into the registration statement of which this prospectus forms a part, shall be considered to be incorporated into
this prospectus by reference and shall be considered a part of this prospectus from the date of filing or submission of such documents.
As
you read the above documents, you may find inconsistencies in information from one document to another. If you find inconsistencies
between the documents and this prospectus, you should rely on the statements made in the most recent document. All information
appearing in this prospectus is qualified in its entirety by the information and financial statements, including the notes thereto,
contained in the documents incorporated by reference herein.
We
will provide to each person, including any beneficial owner, to whom this prospectus is delivered, a copy of these filings, at
no cost, upon written or oral request to us at the following address:
Can-Fite
BioPharma Ltd.
10
Bareket Street, Kiryat Matalon
PO
Box 7537
Petach
Tikva, Israel
Tel:
+ 972 3 924-1114
Email:
info@canfite.com
Attention:
Investor Relations
INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been informed that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
ENFORCEABILITY
OF CIVIL LIABILITIES
We
are incorporated under the laws of the State of Israel. Service of process upon us, our Israeli subsidiary, our directors and
officers and the Israeli experts, if any, named in this prospectus, substantially all of whom reside outside the United States,
may be difficult to obtain within the United States. Furthermore, because the majority of our assets and investments, and substantially
all of our directors, officers and such Israeli experts, if any, are located outside the United States, any judgment obtained
in the United States against us or any of them may be difficult to collect within the United States.
We
have been informed by our legal counsel in Israel that it may also be difficult 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
reasoning that Israel is not the most appropriate forum to bring such a claim. In addition, even if an Israeli court agrees to
hear a claim, it may determine that Israeli law and not U.S. law is applicable to the claim. There is little binding case law
in Israel addressing these matters. If U.S. law is found to be applicable, the content of applicable U.S. law must be proved as
a fact, which can be a time-consuming and costly process. Certain matters of procedure will also be governed by Israeli law.
Subject
to specified time limitations and legal procedures, under the rules of private international law currently prevailing in Israel,
Israeli courts may enforce a U.S. judgment in a civil matter, including a judgment based upon the civil liability provisions of
the U.S. securities laws, as well as a monetary or compensatory judgment in a non-civil matter, provided that the following conditions
are met:
|
● |
subject
to limited exceptions, the judgment is final and non-appealable; |
|
● |
the
judgment was given by a court competent under the laws of the state of the court and is otherwise enforceable in such state; |
|
● |
the
judgment was rendered by a court competent under the rules of private international law applicable in Israel; |
|
● |
the
laws of the state in which the judgment was given provide for the enforcement of judgments of Israeli courts; |
|
● |
adequate
service of process has been effected and the defendant has had a reasonable opportunity to present his arguments and evidence; |
|
● |
the
judgment and its enforcement are not contrary to the law, public policy, security or sovereignty of the State of Israel; |
|
● |
the
judgment was not obtained by fraud and does not conflict with any other valid judgment in the same matter between the same
parties; and |
|
● |
an
action between the same parties in the same matter was not pending in any Israeli court at the time the lawsuit was instituted
in the U.S. court. |
We
have appointed Puglisi & Associates as our agent to receive service of process in any action against us in any United States
federal or state court arising out of this offering or any purchase or sale of securities in connection with this offering.
If
a foreign judgment is enforced by an Israeli court, it generally will be payable in Israeli currency, which can then be converted
into non-Israeli currency and transferred out of Israel. The usual practice in an action before an Israeli court to recover an
amount in a non-Israeli currency is for the Israeli court to issue a judgment for the equivalent amount in Israeli currency at
the rate of exchange in force on the date of the judgment, but the judgment debtor may make payment in foreign currency. Pending
collection, the amount of the judgment of an Israeli court stated in Israeli currency ordinarily will be linked to the Israeli
consumer price index plus interest at the annual statutory rate set by Israeli regulations prevailing at the time. Judgment creditors
must bear the risk of unfavorable exchange rates.
EXPENSES
We
are paying all of the expenses of the registration of our securities under the Securities Act, including, to the extent applicable,
registration and filing fees, printing and duplication expenses, administrative expenses, accounting fees and the legal fees of
our counsel. The following is a statement of estimated expenses at the present time in connection with the distribution of the
securities registered hereby. All amounts shown are estimates except the SEC registration fee. The estimates do not include expenses
related to offerings of particular securities. Each prospectus supplement describing an offering of securities will reflect the
estimated expenses related to the offering of securities under that prospectus supplement.
SEC registration fees | |
$ | 51.40 | |
FINRA filing fee | |
$ | 8,000 | |
Legal fees and expenses | |
$ | * | |
Accountants fees and expenses | |
$ | * | |
Printing Fees | |
$ | * | |
Miscellaneous | |
$ | * | |
Total | |
$ | * | |
* |
These fees and expenses depend on the securities offered and the number of issuances and accordingly cannot be estimated at this time. |
$100,000,000
Ordinary
Shares
American
Depositary Shares representing Ordinary Shares
Warrants
Subscription
Rights
Units
PROSPECTUS
September
, 2023
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
8. Indemnification of Directors, Officers and Employees
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 indemnify an office holder
in respect of certain liabilities, as result of a breach of the duty of care, either in advance of an event or following an event provided
that a provision authorizing such indemnification is inserted in its articles of association. Our Amended and Restated Articles of Association
contain such a provision. The Company may not exculpate in advance a director from liability arising out of a prohibited dividend or
distribution to shareholders. An undertaking provided in advance by an Israeli company to indemnify an office holder with respect to
a financial liability imposed on him or her in favor of another person pursuant to a judgment, settlement or arbitrator’s award
approved by a court 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 a criteria determined by the board of directors as reasonable
under the circumstances, and such undertaking must detail the abovementioned events and amount or criteria.
Under the Companies Law and the Israel Securities Law, a company may
indemnify, or undertake in advance to indemnify, an office holder for the following liabilities and expenses, imposed on office holder
or incurred by office holder due to acts performed by him or her as an office holder, provided its articles of association include a provision
authorizing such indemnification:
|
● |
reasonable litigation expenses, including attorneys’ fees, incurred by the office holder as (1) 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, such as a criminal penalty, was imposed upon him or her as a substitute for the criminal proceeding as a result of such investigation or proceeding or, if such financial liability was imposed, it was imposed with respect to an offense that does not require proof of criminal intent or (2) in connection with a monetary sanction; |
|
● |
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 a crime that does not require proof of criminal intent; |
|
● |
a financial liability imposed on the office holder
in favor of another person pursuant to a judgment, including a compromise judgment or arbitrator judgment 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 certain events which, in the opinion of the board of directors, can be foreseen based on the company’s activities when
the undertaking to indemnify is given, and to an amount or according to criteria determined by the board of directors as reasonable under
the circumstances, and such undertaking shall detail the foreseen events and amount or criteria;
|
|
● |
a monetary liability imposed on him or her in
favor of an injured party at an Administrative Procedure (as defined below) pursuant to Section 52(54)(a)(1)(a) of the Israel Securities
Law; and
|
|
● |
expenses incurred by an office holder in connection with an Administrative Procedure under the Israel Securities Law, including reasonable litigation expenses and reasonable attorneys’ fees. |
An “Administrative Procedure” is defined as a procedure
pursuant to chapters H3 (Monetary Sanction by the Israeli Securities Authority), H4 (Administrative Enforcement Procedures of the Administrative
Enforcement Committee) or I1 (Arrangement to prevent Procedures or Interruption of procedures subject to conditions) to the Israel Securities
Law.
Under the Companies Law and the Israel Securities Law, an Israeli company
may insure a director or officer against the following liabilities incurred for acts performed as a director or officer:
|
● |
a breach of duty of care to the company or to a third party, to the extent such breach arises out of the negligent conduct of an office holder; |
|
● |
a breach of duty of loyalty to the company, provided the director or officer or office holder acted in good faith and had a reasonable basis to believe that the act would not prejudice the interests of the company; |
|
● |
financial liabilities imposed on the office holder
for the benefit of a third party;
|
|
● |
a monetary liability imposed on the office holder
in favor of an injured party at an Administrative Procedure pursuant to Section 52(54)(a)(1)(a) of the Israel Securities Law; and
|
|
● |
expenses incurred by an office holder in connection with an Administrative Procedure, including reasonable litigation expenses and reasonable attorneys’ fees. |
Under the Companies Law, an Israeli company may not indemnify or insure
an office holder against any of the following:
|
● |
a
breach of duty of loyalty, except to the extent that the office holder acted in good faith and had a reasonable basis to believe
that the act would not prejudice the company; |
|
● |
a
breach of 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, civil fine, monetary sanction or random levied against the office holder. |
Under
the Israeli Companies Law, indemnification and insurance of office holders must be approved by our audit committee and our board
of directors and, in respect of our directors, by our shareholders. Our directors and officers are currently covered by a directors
and officers’ liability insurance policy with respect to specified claims. To date, no claims for liability have been filed
under this policy. In addition, we have entered into indemnification agreements with each of our directors and officers and the
directors and officers of our subsidiary providing them with indemnification for liabilities or expenses incurred as a result
of acts performed by them in their capacity as our, or our subsidiary’s directors and officers. This indemnification is
limited both in terms of amount and coverage. In the opinion of the SEC, however, indemnification of directors and office holders
for liabilities arising under the Securities Act is against public policy and therefore unenforceable.
Item
9. Exhibits and Financial Statement Schedules
The
index to exhibits appears below on the page immediately following the signature pages of this Registration Statement.
Item
10. Undertakings
|
(a) |
The
undersigned Registrant hereby undertakes: |
|
(1) |
To file,
during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
|
i. |
To
include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
|
ii. |
To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low
or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
|
iii. |
To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement; |
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and a(l)(iii) do not apply if the registration statement is on Form S-3 or Form
F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule
424(b) that is part of the registration statement.
|
(2) |
That
for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains
a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and this
offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
|
(3) |
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering. |
|
(4) |
To
file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of
Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in the prospectus, by
means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information
necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements.
Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section 10(a)(3) of the Act or Rule 3-19 of this chapter
if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by
the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the Form F-3. |
|
(5) |
That,
for the purpose of determining liability under the Securities Act to any purchaser: |
|
i |
If
the Registrant is relying on Rule 430B: |
|
(A) |
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and |
|
(B) |
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date. |
|
ii. |
If
the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance
on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such date of first use. |
|
(6) |
That,
for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities: |
The
undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
|
i. |
Any
preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant
to Rule 424; |
|
ii. |
Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned Registrant; |
|
iii. |
The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned Registrant; and |
|
iv. |
Any
other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
|
(b) |
The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. |
|
(c) |
The
undersigned registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period, to
set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the
amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof.
If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the
prospectus, a post-effective amendment will be filed to set forth the terms of such offering. |
|
(d) |
The
undersigned Registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus
and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934;
and, where interim financial information required to be presented by Article 3 of Regulation S-X are not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly
report that is specifically incorporated by reference in the prospectus to provide such interim financial information. |
|
(e) |
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6 hereof, or otherwise, the Registrant has been advised
that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue. |
|
(f) |
The
undersigned Registrant hereby undertakes that: |
|
i. |
For
purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this
Registration Statement as of the time it was declared effective. |
|
ii. |
For
the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Petach Tikva, State of
Israel on this 1st day of September 2023.
|
CAN-FITE BIOPHARMA LTD. |
|
|
|
|
By: |
/s/ Motti Farbstein |
|
|
Motti Farbstein |
|
|
Chief Executive Officer and Chief Financial Offcier |
POWER
OF ATTORNEY
KNOW ALL MEN AND WOMEN BY THESE PRESENTED, that each director and officer
of CAN-FITE BIOPHARMA LTD. whose signature appears below hereby appoints Motti Farbstein his/her true and lawful attorney-in-fact with
full power of substitution or re-substitution, for such person and in such person’s name, place and stead, in any and all capacities,
to sign on such person’s behalf, individually and in each capacity stated below, any and all amendments, including post-effective
-amendments to this Registration Statement, and to sign any and all additional registration statements relating to the same offering of
securities of the Registration Statement that are filed pursuant to Rule 462(b) of the Securities Act of 1933, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about
the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons
in the capacities and on the dates indicated:
Name |
|
Title |
|
Date |
|
|
|
|
|
/s/ Motti Farbstein |
|
Chief Executive Officer, |
|
|
Motti Farbstein |
|
Chief Financial Officer and Chief Operating Officer
(principal executive officer,
principal financial officer and principal accounting officer) |
|
September 1, 2023 |
|
|
|
|
|
/s/ Pnina Fishman |
|
Chairman of the Board |
|
|
Pnina Fishman, Ph.D. |
|
|
|
September 1, 2023 |
|
|
|
|
|
/s/ Ilan Cohen, Ph.D. |
|
Durector |
|
|
Ilan Cohen, Ph.D. |
|
|
|
September 1, 2023 |
|
|
|
|
|
/s/ Guy Regev |
|
Director |
|
|
Guy Regev |
|
|
|
September 1, 2023 |
|
|
|
|
|
/s/ Abraham Sartani |
|
Director |
|
|
Abraham Sartani |
|
|
|
September 1, 2023 |
|
|
|
|
|
/s/ Yoseph Bornstein |
|
Director |
|
|
Yoseph Bornstein |
|
|
|
September 1, 2023 |
|
|
|
|
|
/s/ Yaacov Goldman |
|
Director |
|
|
Yaacov Goldman |
|
|
|
September 1, 2023 |
AUTHORIZED
REPRESENTATIVE
Pursuant to the Securities Act of 1933, as amended, the undersigned,
the duly authorized representative in the United States of Can-Fite BioPharma Ltd. has signed this registration statement on this 1st
day of September 2023.
|
Puglisi
& Associates |
|
|
|
|
By: |
/s/
Donald J. Puglisi |
|
|
Name: Donald
J. Puglisi |
|
|
Title: Authorized
Representative |
EXHIBIT
INDEX
Exhibit
No. |
|
Exhibit
Description |
1.1* |
|
Form
of Underwriting Agreement |
|
|
|
4.1 |
|
Form of Amended and Restated Deposit Agreement, by and among Can-Fite BioPharma Ltd., The Bank of New York Mellon and the Owners and Holders of American Depositary Shares, dated September 11, 2013 (incorporated by reference to the Registration Statement on Form 8-A filed with the SEC on November 15, 2013) |
|
|
|
4.2 |
|
Form of American Depositary Receipt evidencing American Depositary Shares (annexed as Exhibit A to Exhibit 4.1) |
|
|
|
4.3* |
|
Form
of Warrant Agreement (including Warrant Certificate) |
|
|
|
4.4* |
|
Form
of Subscription Right Agreement (including form of Right Certificate) |
|
|
|
4.5* |
|
Form
of Unit Agreement (including form of Unit Certificate) |
|
|
|
5.1** |
|
Opinion of Doron Tikotzky Kantor, Gutman, Ness, Amit Gross and Co., Israeli counsel to Registrant (including consent). |
|
|
|
5.2** |
|
Opinion of Greenberg Traurig, P.A., US counsel to Registrant |
|
|
|
23.1** |
|
Consent of Kost Forer Gabbay & Kasierer |
|
|
|
23.2** |
|
Consent of Doron Tikotzky Kantor, Gutman, Ness, Amit Gross and Co. (included in Exhibit 5.1) |
|
|
|
23.2** |
|
Consent of Greenberg Traurig, P.A. (included in Exhibit 5.2) |
|
|
|
24.1** |
|
Power of Attorney (included in signature page) |
|
|
|
107** |
|
Filing Fee Table. |
* |
To
be filed, if applicable, by amendment, or as an exhibit to a report on Form 6-K and incorporated herein by reference. |
II-7
Exhibit 5.1
Yaron Tikotzky, Adv. (CPA)*
Eli Doron, Adv. & Notary
Ronen Kantor, Adv.
Amit Gross, Adv. & Notary
Dr. Shlomo Nass, Adv. (CPA)
Giora Gutman, Adv.
Rami Arie, Adv. (CPA)
Rachel (Goren) Cavallero,
Adv.
Gil Mor, Adv. & Notary**
Sharon Fishman, Adv. &
Notary
Efrat Hamami, Adv.
Tamir Kalderon, Adv.
Asaf Gershgoren, Adv. &
economist
Efi Ohana, Adv. & economist
Asaf Hofman, Adv. &
economist
Moti Philip, Adv.
Shai Glikman, Adv.
Rotem Nissim, Adv.
Hadas Garoosi, Adv.
Shmulik Cohen, Adv.
Izhak Lax, Adv.
Amit Moshe Cohen, Adv.
Shimon Gros, Adv. &
Notary
Shahar Noah, Adv. (Tax advisor)
Amichai Nitzan Tzidkiyahu,
Adv. (CPA)
Igal Rosenberg, Adv.
Ori Perel, Adv.
Shai Pnini, Adv.
Tsvia Shif, Adv.
Tali Pery, Adv.
Rachel Don Yehia, Adv.
Sandrine Dray, Adv. Mediator
& Notary***
Nahi Hamud, Adv.
Yair Messalem, Adv.
Maayan Peled, Adv.
Liav Menachem, Adv. Notary
& Mediator
Lilach Cohen-Shamir, Adv.
Israel Asraf, Adv. &
Notary
Gali Ganoni, Adv.
Odelia Cohen-Schondorf,
Adv.
Yana Shapiro Orbach, Adv.
Oren Geni, Adv.
Inbal Rachamim Avital, Adv.
Moran Ovadia, Adv.
Sonny Knaz, Adv.
Racheli Levi, Adv.
Bat-El Ovadia, Adv.
Aharon Eitan, Adv.
Rania Elime, Adv.
Haim Pesenzon, Adv.
Shaike Rakovsky, Adv.
Ronit Rabinovich, Adv.
Iris Borcom, Adv.
Omri Alter, Adv.
Shira Ben dov levi, Adv.
Inbal Naim, Adv.
Yonatan Gamarnik, Adv.
Ben Mugraby, Adv.
Liran Aharoni, Adv.
Shirli Shlezinger, Adv.
Michael Misul , Adv.
Jacob Bayarsky, Adv. &
economist
Matan Hemo, Adv.
Tamir Shenhav, Adv.
Adi Ben yair- Yosef, Adv
Moshe Zoaretz, Adv.
Or Nass, Adv.
Nina Aharonov, Adv.
Rozit kabudi Doron, Adv.
Doron Pesso, Adv.
Adi Barnes-Ovdat, Adv.
Omri Yacov, Adv.
Noy Keren, Adv.
Liat Ingber, Adv.
Felix Naftaliev, Adv.
Lipaz Elimelch-Karni, Adv.
Eli Hirsch, Adv.
Maayan Gadalov,Adv.
Dov Alter, Adv.
Monica kevorkian karawani,
Adv.
Dudi Braitman, Adv.
Faris Falah, Adv.
Shahaf Zuker, Adv.
Alexey Kvaktoun, Adv.
Lior Valzman Haimovich,
Adv.
Elinor Yaakobi, Adv.
Dor Elkrif; Adv.
Netanel Rozenberg, Adv.
Hadar Raz, Adv.
Ilia Parkhomyuk, Adv.
Dana Hofman, Adv.
Omer Levi, Adv.
Yamit Halperin, Adv.
Moran Alezra, Adv.
Elinor Palma, Adv.
Lidor Amar, Adv.
Tali Kadosh, Adv.
Rami Zoabi, Adv.
Michelle Zohar-Peer, Adv.
Amin Ramadan, Adv.
Barak Harari, Adv.
Coral Opal, Adv.
|
|
Can-Fite
BioPharma Ltd. September
1, 2023
10 Bareket
St.
Petach
Tikva 4951778
Israel
Re:
Form F-3 Registration Statement
Ladies
and Gentlemen:
We
have acted as Israeli counsel for Can-Fite BioPharma Ltd., an Israeli company organized under the laws of the State of Israel (the
“Company”), in connection with the registration statement on Form F-3 (the “Registration Statement”) to be
filed with the Securities and Exchange Commission (the “Commission”) on or about September 01, 2023 under the Securities
Act of 1933, as amended (the “Act”). The Registration Statement relates to the proposed offer and sale by the Company
from time to time, as set forth in the prospectus contained in the Registration Statement (the “Prospectus”) and as
shall be set forth in one or more supplements to the Prospectus (each, a “Prospectus Supplement”), of up to a
$100,000,000 aggregate amount of any of all the following securities (the “Securities”): (i) American Depositary Shares
(“ADSs”) representing ordinary shares, no par value per share, of the Company (“Ordinary Shares”), (ii)
Ordinary Shares, (iii) warrants to purchase ADSs and/or Ordinary Shares, (“Warrants”), (iv) subscription rights
(“Subscription Rights”) to purchase ADSs and/or Ordinary Shares, and (v) units comprised of one or more of the
securities that are offered under the Prospectus (“Units”).
The
Warrants will be issued under a warrant agreement (the “Warrant Agreement”) between the Company and a warrant agent (the
“Warrant Agent”) and/or the Warrant holder. The Subscription Rights will be issued under a subscription rights agreement
(the “Subscription Rights Agreement”) between the Company and a rights agent (the “Rights Agent”). The Units
will be issued under a unit agreement (the “Unit Agreement”) between the Company and a unit agent (the “Unit Agent”).
We
also have assumed that: (1) at the time of execution, issuance and delivery of any Warrants, the related Warrant Agreement will be the
valid and legally binding obligation of the Warrant Agent and/or the Warrant holder, as the case may be, enforceable against such party
in accordance with its terms; (2) at the time of execution, issuance and delivery of any Subscription Rights, the related Subscription
Rights Agreement will be the valid and legally binding obligation of the Rights Agent, enforceable against such party in accordance with
its terms; (3) at the time of the execution, issuance and delivery of the Units, the related Unit Agreement will be the valid and legally
binding obligation of the Unit Agent, enforceable against such party in accordance with its terms.
|
Eli
Kulas. Adv. Notary & Mediator – Of Counsel
Eli
Chenchinski, Adv. - Of Counsel
Yaacov
Wagner, Senior judge (retired), Adv.- L.L.M, Mediator & Arbitrator- Of Counsel
Jan
Robinsohn, M.Jur. Adv. & Notary - Of Counsel
****
Giora
Amir (1928-2020)
*
Member of the New York State Bar
**
Member of the Law Society in
England
& Wales
***
Accredited by the consulate of France
****
Honorary Consul Of The Republic
Of
Poland (ret.)
|
|
mail@dtkgg.com
www.dtkgg.com
|
|
Haifa
& Northern: 7 Palyam Blvd. Haifa,
(Phoenix
House) 7th Floor, 3309510
Tel.
+972-4-8147500 | Fax 972-4-8555976
Banking
& Collection, 6th Floor
Tel.
972-4-8353700 | Fax 972-4-8702477
Romania:
7 Franklin, 1st District, Bucharest
Cyprus:
9 Zenonos Kitieos St., 2406 Engomi, Nicosia
Austria:
Wildpretmarkt 2-4 | Mezzanin , A-1010 , Vienna
|
|
Central:
B.S.R. Tower 4, 33th Floor,
7
metsada St. Bnei Brak, 5126112
Tel.
972-3-6109100 | Fax +972-3-6127449
Tel.
972-3-6133371 | Fax +972-3-6133372
Tel.
972-3-7940700 | Fax +972-3-7467470
Tel.
972-3-6114455 | Fax +972-3-6131170
SRF
New York: 1185 Avenue of the Americas ,37th Floor | New York, NY 10036
|
We have assumed further that: (1) at the time
of execution, issuance and delivery of any Warrants, the related Warrant Agreement will have been duly authorized, executed and delivered
by the Company and the Warrant Agent and/or the Warrant holder, as the case may be; (2) at the time of execution, issuance and delivery
of any Subscription Rights, the related Subscription Rights Agreement will have been duly authorized, executed and delivered by the Company
and the Rights Agent; (3) at the time of execution, issuance and delivery of the Units, the Unit Agreement will have been duly authorized,
executed and delivered by the Company and the Unit Agent; and (4) at the time of the issuance and sale of any of the Securities, the terms
of the Securities, and their issuance and sale, will have been established so as not to violate any applicable law or regulation or result
in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company.
For the purpose of the opinions expressed below,
we have assumed further that after the issuance of the ADSs or the Ordinary Shares pursuant to the Registration Statement, the total number
of issued Ordinary Shares, together with the total number of Ordinary Shares reserved for issuance upon the exercise, exchange or conversion,
as the case may be, of any exercisable, exchangeable or convertible security then outstanding, will not exceed the total number of authorized
share capital under the Company’s Amended and Restated Articles of Association.
Based upon the foregoing, in reliance thereon
and subject to the assumptions, comments, qualifications, limitations and exceptions stated herein and the effectiveness of the Registration
Statement under the Act, we are of the opinion that:
| 1. | With respect to the Ordinary Shares underlying ADSs and the Ordinary Shares, assuming the taking of all
necessary corporate action to authorize and approve the issuance of any ADSs and/or Ordinary Shares, as the case may be, the terms of
the offering thereof and related matters, upon payment of the consideration therefor provided for in the applicable definitive purchase,
underwriting or similar agreement approved by the board of directors and otherwise in accordance with the provisions of the applicable
convertible Securities, if any, such Ordinary Shares will be validly issued, fully paid and non-assessable. |
| 2. | With respect to the Warrants, assuming the (a) taking of all necessary corporate action to authorize and
approve the issuance of the underlying ADS’s and/or Ordinary Shares, and the issuance and terms of any Warrants, the related Warrant Agreement,
the terms of the offering thereof and related matters and (b) due execution, authentication, issuance and delivery of such Warrants upon
payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or similar agreement approved by
the board of directors and otherwise in accordance with the provisions of the applicable Warrant Agreement, such Warrants will constitute
valid and legally binding obligations of the Company to the extent governed by Israeli law. |
| 3. | With respect to the Subscription Rights, assuming the (a) taking of all necessary corporate action to
authorize and approve the issuance and terms of any Subscription Rights, the related Subscription Rights Agreement and the ADSs and/or
Ordinary Shares, the terms of the offering thereof and related matters and (b) due execution, countersignature (where applicable), authentication,
issuance and delivery of such Subscription Rights upon payment of the consideration therefor provided for in the applicable definitive
purchase, underwriting or similar agreement approved by the board of directors and otherwise in accordance with the provisions of the
applicable Subscription Rights Agreement, such Subscription Rights will constitute valid and legally binding obligations of the Company
to the extent governed by Israeli law. |
| 4. | With respect to the Units, assuming the (a) taking of all necessary corporate action to authorize and
approve the issuance and the terms of the Units, the related Unit Agreement and any Securities which are components of the Units, the
terms of the offering thereof and related matters and (b) due execution, countersignature (where applicable), authentication, issuance
and delivery of the Units and the Securities that are components of such Units in each case upon the payment of the consideration therefor
provided for in the applicable definitive purchase, underwriting or similar agreement approved by the board of directors, and otherwise
in accordance with the provisions of the applicable (i) Warrant Agreement, in the case of Warrants and (ii) Subscription Rights Agreement,
in case of Subscription Rights, such Units will be validly issued and will entitle the holders thereof to the rights specified in the
Unit Agreements to the extent governed by Israeli law. |
In addition to the assumptions, comments, qualifications,
limitations and exceptions set forth above, the opinions set forth herein are further limited by, subject to and based upon the following
assumptions, comments, qualifications, limitations and exceptions:
| 1. | We are members of the Israel Bar, and we express no opinion as to any matter relating to the laws of any
jurisdiction other than the laws of the State of Israel and have not, for the purpose of giving this opinion, made any investigation of
the laws of any other jurisdiction than the State of Israel. The opinions set forth herein are made as of the date hereof and are subject
to, and may be limited by, future changes in the factual matters set forth herein, and we undertake no duty to advise you of the same.
The opinions expressed herein are based upon the law in effect (and published or otherwise generally available) on the date hereof, and
we assume no obligation to revise or supplement these opinions should such law be changed by legislative action, judicial decision or
otherwise. In rendering our opinions, we have not considered, and hereby disclaim any opinion as to, the application or impact of any
laws, cases, decisions, rules or regulations of any other jurisdiction, court or administrative agency. This opinion is expressly limited
to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters. |
| 2. | Our opinions herein are subject to and may be limited by (i) applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting or relating to the rights and remedies of creditors generally including, without
limitation, laws relative to fraudulent conveyances, preference and equitable subordination, (ii) general principles or equity (regardless
of whether considered in a proceeding in equity or at law), (iii) an implied covenant of good faith and fair dealing, (iv) requirements
that a claim with respect to any Securities denominated other than in United States dollars (or a judgment denominated other than in United
States dollars with respect to such a claim) be converted into United States dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law, and (v) governmental authority to limit, delay or prohibit the making of payments outside the United States
or in foreign currency or composite currency. |
| 3. | Our opinions are further subject to the effect of generally applicable rules of law arising from statutes,
judicial and administrative decisions, and the rules and regulations of governmental authorities that: (i) limit or affect the enforcement
of provisions of a contract that purport to require waiver of the obligations of good faith, fair dealing, diligence and reasonableness;
(ii) limit the availability of a remedy under certain circumstances where another remedy has been elected; (iii) limit the enforceability
of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action
or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct or unlawful conduct; (iv) may,
where less than all of the contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in
which the unenforceable portion is not an essential part of the agreed exchange and (v) govern and afford judicial discretion regarding
the determination of damages and entitlement to attorneys’ fees. |
| 4. | We express no opinion as to the enforceability of any provision in any Warrant Agreement, Subscription
Rights Agreement, Unit Agreement, or other agreement purporting or attempting to (A) confer exclusive jurisdiction and/or venue upon certain
courts or otherwise waive the defenses of forum non conveniens or improper venue, (B) confer subject matter jurisdiction on a court not
having independent grounds therefor, (C) modify or waive the requirements for effective service of process for any action that may be
brought, (D) waive the right of the Company or any other person to a trial by jury, (E) provide that remedies are cumulative or that decisions
by a party are conclusive, or (F) modify or waive the rights to notice, legal defenses, statutes of limitations or other benefits that
cannot be waived under applicable law. |
| 5. | We express no opinion as to the enforceability of any rights to indemnification or contribution provided
for in any Warrant Agreement, Subscription Rights Agreement, Unit Agreement or other agreement which are violative of public policy underlying
any law, rule or regulation (including any federal or state securities law, rule or regulation) or the legality of such rights. |
| 6. | You have informed us that you intend to issue the Securities from time to time on a delayed or continuous
basis, and this opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof. We understand that
prior to issuing any Securities you will afford us an opportunity to review the operative documents pursuant to which such Securities
are to be issued (including the applicable Prospectus Supplement) and will file such supplement or amendment to this opinion (if any)
as we may reasonably consider necessary or appropriate by reason of the terms of such Securities. |
We hereby consent to the filing of this opinion
as Exhibit 5.1 to the Registration Statement and to the use of our name under the caption “Legal Matters” in the Prospectus.
We also consent to your filing copies of this opinion as an exhibit to the Registration Statement with agencies of such states as you
deem necessary in the course of complying with the laws of such states regarding the offering and sale of the Securities. In giving such
consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Act or
the Rules and Regulations of the Commission thereunder.
|
Very truly yours, |
|
|
|
/s/ Doron, Tikotzky, Kantor, Gutman,
Nass Amit Gross & Co. |
|
Advocates & Notaries |
- 4 -
Exhibit 5.2
September 1, 2023
Can-Fite BioPharma Ltd.
10 Bareket Street
Kiryat Matalon, P.O. Box 7537
Petach-Tikva 4951778, Israel
Re: | Can-Fite BioPharma Ltd. Registration Statement on Form
F-3 Exhibit 5.2 |
Ladies and Gentlemen:
We have acted as U.S. special
counsel to Can-Fite BioPharma Ltd., a company incorporated under the laws of Israel (the “Company”), in connection with the
filing of a registration statement on Form F-3 (the “Registration Statement”) under the Securities Act of 1933, as amended
(the “Securities Act”), with the U.S. Securities and Exchange Commission (the “Commission”). The Registration
Statement is being filed for the registration of the following securities which may subsequently be allotted and issued by the Company
up to an aggregate initial offer price of $100,000,000 of (i) ordinary shares, no par value (the “Ordinary Shares”), (ii)
American Depositary Shares (“ADSs”) representing Ordinary Shares, (iii) rights to purchase Ordinary Shares and/or ADSs (“Subscription
Rights”), (iv) warrants to purchase Ordinary Shares and/or ADSs (the “Warrants”), and (v) units consisting of Ordinary
Shares, Warrants or Subscription Rights, in any combination (“Units”) (together, the “Securities”). We have reviewed
such documents and made such examination of matters of fact and questions of law as we have considered appropriate for purposes of this
letter.
We are opining herein only
as to the internal laws of the State of New York, and we express no opinion with respect to the applicability thereto, or the effect thereon,
of the laws of any other jurisdiction, or as to any matters of municipal law or the laws of any local agency within any jurisdiction.
With respect to Israeli law, we understand that you are relying upon the opinion, dated the date hereof, of Doron, Tikotzky, Kantor, Gutman,
Ness, Amit Gross and Co., Israeli counsel to the Company, and our opinion is subject to the same assumptions, qualifications and limitations
with respect to such law as contained in such opinion of Doron, Tikotzky, Kantor, Gutman, Ness, Amit Gross and Co. We express no opinion
herein regarding the validity or issuance of the Ordinary Shares, ADSs, Warrants or Subscription Rights, which matters are being addressed
in such opinion of Doron, Tikotzky, Kantor, Gutman, Ness, Amit Gross and Co.
We have examined signed copies
of the Registration Statement and have also examined and relied upon minutes of meetings of the Board of Directors of the Company as provided
to us by the Company, the articles of association of the Company, as restated and/or amended to date (the “Articles”), and
such other documents as we have deemed necessary or appropriate for purposes of rendering the opinion hereinafter set forth. In addition,
we have examined and relied, to the extent we deemed proper, on certificates of officers of the Company as to factual matters, and on
originals or copies certified or otherwise identified to our satisfaction, of all such corporate records of the Company and such other
instruments and certificates of public officials and other persons as we have deemed appropriate. In our examination, we have assumed
the authenticity of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to
us as copies, the genuineness of all signatures on documents reviewed by us and the legal capacity of natural persons. Other than our
examination of the documents indicated above, we have made no other examination in connection with this opinion.
Greenberg
Traurig, P.A. | Attorneys at Law Azrieli Center, Round Tower | 132 Menachem Begin Road, 30th Floor |
Tel Aviv, Israel 6701101 | T +1 +972 (0) 3 636 6000 | F +1 +972 (0) 3 636 6010 |
www.gtlaw.com |
Page 2
We have assumed (a) that each
of the Securities and each applicable agreement pursuant to which such Securities will be issued will be duly authorized, executed and
delivered by the parties thereto in accordance with applicable law, consistent with the procedures and terms described in the Registration
Statement and the applicable Prospectus Supplement and in accordance with the Company’s Articles, (b) that each of the Securities
will be validly issued, fully paid and nonassessable (to the extent applicable), (c) that the Warrants, the Subscription Rights and the
Units will constitute legally valid and binding obligations of the parties thereto (other than the Company), enforceable against each
of them in accordance with their respective terms, and (d) that the status of each of the Warrants, the Subscription Rights and the Units
as legally valid and binding obligations of the parties will not be affected by any (i) breaches of, or defaults under, agreements or
instruments, (ii) violations of statutes, rules, regulations or court or governmental orders, or (iii) failures to obtain required consents,
approvals or authorizations from, or to make required registrations, declarations or filings with, governmental authorities.
Subject to the foregoing and the
other matters set forth herein, it is our opinion that as of the date hereof, when (i) the Registration Statement, as finally amended,
is declared or has otherwise become effective under the Securities Act, and (ii) the Securities have been duly authorized, executed and
delivered by all necessary corporate action of the Company, (1) the Warrants will be valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms to the extent governed by New York law, (2) the Subscription Rights will be valid and
binding obligations of the Company, enforceable against the Company in accordance with their terms to the extent governed by New York
law, and (3) the Units will be valid and binding obligations of the Company, enforceable against the Company in accordance with their
terms to the extent governed by New York law.
Our opinion set forth above
is subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or
at law), (iii) an implied covenant of good faith and fair dealing and (iv) the effects of the possible application of foreign laws or
foreign governmental or judicial action affecting creditors’ rights.
The opinion set forth herein
is rendered as of the date hereof, and we assume no obligation to update such opinion to reflect any facts or circumstances which may
hereafter come to our attention or any changes in the law which may hereafter occur (which may have retroactive effect). This opinion
is rendered to you in connection with the filing of the Registration Statement referenced above. This opinion may not be relied upon for
any other purpose, or furnished to, quoted or relied upon by any other person, firm or corporation for any purpose, without our prior
written consent.
We hereby consent to the reference
to our firm under the caption “Legal Opinions” in the Registration Statement and to the use of this opinion as an exhibit
to the Registration Statement. In giving this consent, we do not hereby admit that we come within the category of persons whose consent
is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
|
Very truly yours, |
|
|
|
/s/ Greenberg Traurig, P.A. |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We consent to the reference
to our firm under the caption “Experts” in this Registration Statement (Form F-3) and related Prospectus of Can-Fite Biopharma
Ltd. for the registration of ordinary shares and to the incorporation by reference therein of our report dated March 30, 2023, with respect
to the consolidated financial statements of Can-Fite Biopharma Ltd. included in its Annual Report (Form 20-F) for the year ended December
31, 2022, filed with the Securities and Exchange Commission.
/s/ Kost Forer Gabbay & Kasierer |
|
A Member of Ernst & Young Global |
|
|
|
Tel-Aviv, Israel |
|
September 1, 2023 |
|
Exhibit 107
Calculation of Filing Fee Tables
Form F-3
(Form Type)
Can-Fite BioPharma Ltd.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities and Carry
Forward Securities
| |
Security Type | |
Security Class Title | |
Fee Calculation or Carry Forward Rule | | |
Amount Registered (1) | | |
Proposed Maximum Offering Price Per Unit (2) | | |
Maximum Aggregate Offering Price (3) | | |
Fee Rate | | |
Amount of Registration Fee | |
Fees to Be Paid | |
Equity | |
Ordinary shares, no par value (5) | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Fees to Be Paid | |
Other | |
Warrants | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Fees to Be Paid | |
Other | |
Subscription Rights | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Fees to Be Paid | |
Other | |
Units | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Fees to Be Paid | |
Unallocated (Universal) Shelf | |
Unallocated (Universal) Shelf | |
| 457(o) | | |
| | (2) | |
| | (3) | |
$ | 100,000,000 | | |
| 0.0001102 | | |
$ | 11,020.00 | (4) |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Total Offering Amounts | | |
| | | |
| | | |
| | | |
$ | 11,020.00 | |
| |
Total Fees Previously Paid | | |
| | | |
| | | |
| | | |
| — | |
| |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
$ | 10,119,34 | |
| |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 900.66 | (6) |
| (1) | There are being registered under
this registration statement such indeterminate number of ordinary shares, warrants, subscription rights, and units, as may be sold by
the registrant from time to time, which collectively shall have an aggregate initial offering price not to exceed $100,000,000 or, if
any securities are issued for consideration denominated in a foreign currency, such amount as shall result in an aggregate initial offering
price equivalent to a maximum of $100,000,000. The securities registered hereunder also include such indeterminate number of ordinary
shares as may be issued upon conversion, exercise or exchange of warrants that provide for such conversion into, exercise for or exchange
into ordinary shares. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, or the Securities Act, the ordinary
shares being registered hereunder include such indeterminate number of ordinary shares as may be issuable with respect to the shares
being registered hereunder as a result of stock splits, stock dividends, or similar transactions. |
| (2) | Not specified as to each class
of securities to be registered pursuant to General Instruction II.C. of Form F-3. |
| (3) | The proposed maximum offering
price per unit of each class of securities will be determined from time to time by the Registrant in connection with the issuance by
the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction
II.D. of Form F-3 under the Securities Act of 1933, as amended (the “Securities Act”). |
| (4) | The registration fee has been
calculated pursuant to Rule 457(o) under the Securities Act on the basis of the maximum aggregate offering price of the securities listed. |
| (5) | Ordinary shares may be in the
form of American Depositary Shares. American Depositary Shares issuable on deposit of the ordinary shares registered hereby have been
registered under a separate registration statement on Form F-6 (File No. 333-212698). Each American Depositary Share represents the right
to receive 300 ordinary shares. |
| (6) | The Registrant previously filed a Registration Statement on Form F-3 with
the Securities and Exchange Commission on September 25, 2020 (File No. 333-249063), which was declared effective on October 9, 2020 (the
“Prior Registration Statement”), that registered an aggregate of $100,000,000 of an indeterminate number of securities to
be offered by the Registrant from time to time. Of the $100,000,000 of securities registered on the Prior Registration Statement, for
which the Registrant paid a filing fee of $10,119.34 after giving effect to a fee offset. In connection therewith, $84,500,000 of the
securities remain unsold, leaving $10,968.10 in previously paid fees available for future offset (calculated at the fee rate in effect
on the filing date of the Prior Registration Statement). In accordance with Rule 457(p) under the Securities Act, the Registrant is using
$10,119.34 of the unused filing fees to offset the filing fee payable in connection with this filing. Accordingly, a registration fee
of $900.66 is due to be paid at this time. Concurrently with the effectiveness of this registration statement, any offering of unsold
securities pursuant to the Prior Registration Statement is hereby terminated. |
Table 2: Fee Offset Claims and Sources
| |
Registrant or Filer Name | |
Form or Filing Type | |
File Number | |
Initial Filing Date | |
Filing Date | | |
Fee Offset Claimed | | |
Security Type Associated
with Fee Offset
Claimed | |
Security Title
Associated with Fee
Offset Claimed | | |
Unsold Securities Associated
with Fee Offset
Claimed | |
Unsold Aggregate
Offering Amount
Associated with Fee Offset Claimed | | |
Fee Paid with Fee
Offset Source | |
Rule 457(p) |
Fee
Offset Claims | |
Can-Fite BioPharma Ltd. | |
F-3 | |
333-249063 | |
September 25, 2020 | |
| | | |
$ | 10,119,34 | | |
Unallocated (Universal) Shelf | |
| | (1) | |
Unallocated (Universal) Shelf | |
$ | 85,000,000 | | |
| | |
Fee
Offset Sources | |
Can-Fite BioPharma Ltd. | |
F-3 | |
333-249063 | |
| |
| September 25,
2020 | | |
| | | |
| |
| | | |
| |
| | | |
$ | 10.119.34 | |
| (1) | Pursuant to Rule 457(p) under the Securities Act, the Registrant is offsetting
the registration fee due under this registration statement by $10,119.34, which represents the portion of the registration fee previously
paid (after offset) with respect to $84,503,800 of unsold securities (the “Unsold Offset Securities”) previously registered
on the Prior Registration Statement. The offering of the Unsold Offset Securities pursuant to the Prior Registration Statement associated
with the claimed fee offset pursuant to Rule 457(p) have been completed or terminated. |
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