Israel
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Not Applicable
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(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer Identification Number)
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Alberto Sessa
Chief Financial Officer Compugen Ltd. Azrieli Center
26 Harokmim Street Building D
Holon 5885849, Israel Phone: +972-3-765-8585 Fax: +972-3-765-8555 |
Daniel I. Goldberg, Esq.
Cooley LLP 55 Hudson Yards New York, New York 10001-2157 Tel: 212-479-6000 Fax: 212-479-6275 |
Shelly Blatt Zak
Ivor Krumholtz
Shibolet & Co., Law Firm
Tou Towers
Yitzhak Sadeh 4
Tel Aviv-Yafo 6777504, Israel Tel: +972-3-307-5000 Fax: +972-3-777-8444 |
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a base prospectus which covers the offering, issuance, and sale by us of up to $350,000,000 of our ordinary shares, debt securities, rights, warrants and units comprising any combination of these securities;
and
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a sales agreement prospectus covering the offering, issuance, and sale by us of up to a maximum aggregate offering price of $50,000,000 of our ordinary shares that may be issued and sold under a sales agreement
(the “sales agreement”) with SVB Securities LLC.
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i
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1
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2
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3
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4
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5
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6
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7
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14
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21
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23
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24
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25
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27
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27
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27
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28
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29
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29
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30
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8,157,749 ordinary shares issuable upon the exercise of outstanding options to purchase ordinary shares, having a weighted average exercise price of $5.43 per share;
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• |
an aggregate 1,918,297 ordinary shares issuable and reserved for future grants under our 2010 Share Incentive Plan;
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297,469 ordinary shares issuable upon the exercise of warrants issued to certain institutional investors in a registered direct offering completed in June 2018, with an exercise price of $4.74 per share; and
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an aggregate of 324,146 ordinary shares issuable under the Compugen 2021 Employee Share Purchase Plan.
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Share Options. Since January 1, 2020 and through December 31, 2022, we have issued a total of 3,321,103 ordinary shares upon the exercise of share options.
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Registered Direct Offering. In June 2018, we entered into a definitive securities purchase agreement with certain institutional investors and a placement agency
agreement with JMP Securities LLC, in connection with a registered direct offering which resulted in the issuance of 5,316,457 of our ordinary shares at a purchase price of $3.95 per share. In connection with the issuance of the ordinary
shares, we also issued warrants to purchase up to 4,253,165 additional ordinary shares. The warrants have an exercise price of $4.74 per share and have a term of five years from the date of issuance. Since January 1, 2020 and through
December 31, 2022, we have issued a total of 3,955,696 ordinary shares upon exercise of the said warrants.
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Public Offering. In March 2020, we entered into an underwriting agreement with SVB Leerink LLC and Stifel, Nicolaus & Company, Incorporated, as representatives of
several underwriters relating to the issuance and sale in a public offering of 8,333,334 of our ordinary shares at a price to the public of $9.00 per share (and a price of $8.46 per share to the underwriters). In addition, we granted the
underwriters a 30-day option to purchase additional ordinary shares at the price set forth above. On April 14, 2020, we issued and sold, pursuant to that underwriting agreement an additional 483,005 ordinary shares pursuant to the
underwriters’ option specified above. We sold a total of 8,816,339 ordinary shares in the offering with gross proceeds of approximately $79.3 million.
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Bristol Myers Squibb Securities Purchase Agreement. In November 2021, we and Bristol Myers Squibb entered into a securities
purchase agreement pursuant to which Bristol Myers Squibb purchased 2,332,815 ordinary shares of Compugen at a purchase price of $8.57333 per share, which represented a 33% premium over the closing price of our ordinary shares on the last
trading day immediately prior to the execution of this agreement. Gross proceeds from this private placement were approximately $20 million.
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title or designation;
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the aggregate principal amount and any limit on the amount that may be issued;
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the currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or units in which principal or interest or both will or may be payable;
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the form of the debt securities of the series;
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the applicability of any guarantees;
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the maturity date and the date or dates on which principal will be payable;
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the interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the date or dates interest will be payable and the record dates for interest
payment dates or the method for determining such dates;
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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the terms of the subordination of any series of subordinated debt;
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if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is a price other than the principal amount thereof, the portion of the principal
amount thereof payable upon declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another security or the method by which any such portion
shall be determined;
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the place or places where payments will be payable;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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the date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional redemption provisions;
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the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund provisions or otherwise, to redeem, or at the holder’s option to purchase, any series of debt
securities;
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whether the indenture will restrict our ability to pay dividends, or will require us to maintain any asset ratios or reserves;
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whether we will be restricted from incurring any additional indebtedness;
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a discussion of any material or special Israeli or U.S. federal income tax considerations applicable to a series of debt securities;
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the denominations in which we will issue the series of notes, if other than denominations of $1,000 and any integral multiple thereof;
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any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security for our obligations with respect to such debt securities and any other terms which
may be advisable in connection with the marketing of debt securities of that series;
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if applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions upon which such debt securities will be so convertible or exchangeable,
including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion or exchange features, the applicable conversion or
exchange period and the manner of settlement for any conversion or exchange;
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additions to or changes in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation, merger or sale covenant;
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additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to declare the principal, premium, if any, and interest, if any, with
respect to such securities to be due and payable;
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additions to or changes in the provisions relating to satisfaction and discharge of the indenture;
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additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued under the indenture;
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whether interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and conditions upon which the election may be made;
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any restrictions on transfer, sale or assignment of the debt securities of the series; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes in the provisions of the indenture, and any terms that may be required by
us or advisable under applicable laws or regulations.
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if we fail to pay any installment of interest when due and our failure continues for 90 days and the time for payment has not been extended or deferred;
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if we fail to pay the principal, or premium, if any, when due and the time for payment has not been extended or delayed;
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if we fail to observe or perform any other covenant set forth in the debt securities of such series or the indenture, other than a covenant specifically relating to and for the benefit of holders of another
series of debt securities, and our failure continues for 90 days after we receive written notice of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the debenture trustee or
holders of not less than a majority in aggregate principal amount of the outstanding debt securities of the applicable series; and
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if we experience specified events of bankruptcy, insolvency or reorganization.
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the direction so given by the holder is not in conflict with any law or the indenture; and
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subject to its duties under the Trust Indenture Act, the debenture trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the
proceeding.
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the holder previously has given written notice to the debenture trustee of a continuing event of default with respect to that series;
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the holders of at least a majority in aggregate principal amount of the outstanding debt securities of that series have made written request, and such holders have offered reasonable indemnity to the debenture
trustee to institute the proceeding as trustee; and
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the debenture trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series (or at a meeting of
holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at such meeting) other conflicting directions within 60 days after the notice, request and
offer.
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to cure any ambiguity, defect or inconsistency in the indenture;
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to change anything that does not materially adversely affect the interests of any holder of debt securities of any series issued pursuant to such indenture;
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
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to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for the benefit of the holders of all or any series of debt securities, to make the
occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred upon us in the indenture;
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to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication and delivery of debt securities, as set forth in the
indenture;
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to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above under “Description of Debt Securities—General” to establish the form of any
certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities;
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to evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or
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to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act.
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extending the fixed maturity of the series of debt securities;
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reducing the principal amount, reducing the rate of or extending the time of payment of interest, or any premium payable upon the redemption of any debt securities;
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reducing the principal amount of discount securities payable upon acceleration of maturity;
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making the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security; or
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver.
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provide for payment;
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register the transfer or exchange of debt securities of the series;
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replace stolen, lost or mutilated debt securities of the series;
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pay principal of and premium and interest on any debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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recover excess money held by the trustee;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
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issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt
securities that may be selected for redemption and ending at the close of business on the day of the mailing; or
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register the transfer of or exchange of any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.
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the title of such rights;
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the securities for which such rights are exercisable;
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the exercise price for such rights;
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the number of such rights issued with respect to each ordinary share;
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the extent to which such rights are transferable;
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if applicable, a discussion of the material Israeli and U.S. income tax considerations applicable to the issuance or exercise of such rights;
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the date on which the right to exercise such rights shall commence, and the date on which such rights shall expire (subject to any extension);
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the extent to which such rights include an over-subscription privilege with respect to unsubscribed securities;
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if applicable, the material terms of any standby underwriting or other purchase arrangement, or any agency agreement, that we may enter into in connection with the rights offering; and
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any other terms of such rights, including terms, procedures and limitations relating to the exchange and exercise of such rights.
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the title of the warrants;
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the aggregate number of the warrants offered;
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the currency or currencies for which the warrants may be purchased;
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the number of ordinary shares purchasable upon exercise of the warrants;
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the designation and terms of the securities, if any, with which the warrants are issued, and the number of the warrants issued with each such offered security;
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the date, if any, on and after which the warrants and the related securities will be separately transferable;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
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the terms of any rights to redeem or call the warrants;
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the terms of any rights to force the exercise of the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the price at which, and form of consideration for which, each security purchasable upon exercise of the warrants may be purchased;
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the date on which the right to exercise the warrants will commence and the date on which the right will expire;
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the manner in which the warrant agreements and warrants may be modified;
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information with respect to book-entry procedures, if any;
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if applicable, a discussion of the material Israeli and U.S. income tax considerations applicable to the issuance or exercise of such warrants;
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the minimum or maximum amount of the warrants which may be exercised at any one time;
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any circumstances that will cause the warrants to be deemed to be automatically exercised; and
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any other material terms of the warrants.
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the terms of the units and of the ordinary shares, debt securities, rights and/or warrants comprising the units, including whether and under what circumstances the securities comprising the units may be traded
separately;
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the terms of any unit agreement governing the units or any arrangement with an agent that may act on our behalf in connection with the unit offering;
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the provisions for the payment, settlement, transfer or exchange of the units; and
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any material provisions of the governing unit agreement that differ from those described above.
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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at negotiated prices.
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the name or names of any underwriters, dealers or agents, if any;
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the purchase price of the securities and the proceeds we will receive from the sale;
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any over-allotment options under which underwriters may purchase additional securities from us
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any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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any public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchange or market on which the securities may be listed.
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SEC registration fee
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$
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0
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FINRA filing fee
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$
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1,032.61
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Printing expenses
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(1
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)
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Legal fees and expenses
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(1
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)
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Accounting fees and expenses
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(1
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)
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Miscellaneous
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(1
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)
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Total
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$
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(1
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)
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(1) These fees and expenses depend on the securities offered and the number of issuances, and accordingly cannot be estimated at this time and will be reflected in the applicable prospectus supplement.
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our Annual Report on Form 20-F for the year ended December 31, 2022, filed on February 28, 2023
(File No. 000-30902);
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our Reports on Form 6-K filed on January 31, 2023, February 14, 2023, February
27, 2023, March 6, 2023 and March
10, 2023 (File Nos. 000-30902); and
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the description of our ordinary shares contained in our Registration Statement on Form 8-A, filed with the SEC on August 2, 2000, including any amendments or reports filed for the purpose of updating the
description.
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the judgments are obtained after due process before a court of competent jurisdiction, according to the laws of the state in which the judgment is given and the rules of private international law currently
prevailing in Israel;
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the prevailing law of the foreign state in which the judgments were rendered allows for the enforcement of judgments of Israeli courts;
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adequate service of process has been effected and the defendant has had a reasonable opportunity to be heard and to present his or her evidence;
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the judgments are not contrary to public policy of Israel, and the enforcement of the civil liabilities set forth in the judgment is not likely to impair the security or sovereignty of Israel;
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the judgments were not obtained by fraud and do not conflict with any other valid judgments in the same matter between the same parties;
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an action between the same parties in the same matter is not pending in any Israeli court at the time the lawsuit is instituted in the foreign court;
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the judgment is not subject to any further appeal procedures; and
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the judgment is enforceable according to the laws of Israel and according to the law of the foreign state in which the relief was granted.
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PROSPECTUS SUPPLEMENT
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Page
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S-i
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S-ii
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S-1
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S-4
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S-10
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S-11
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S-19
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S-20
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S-20
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S-20
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S-21
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S-22
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It is based on the discovery of novel targets and biological pathways discovered by our predictive computational discovery capabilities
with the potential to address the unmet need of patients non-responsive to current cancer immunotherapies;
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We integrate our cutting-edge computational capabilities with our ground-breaking immuno-oncology research and drug development expertise
to inform our drug development process; and
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We use the same integrated capabilities to identify drug combinations and design biomarker strategy for future patient selection.
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COM701 is our lead immuno-oncology pipeline program. COM701 is a humanized antibody that binds
with high affinity to PVRIG, a novel immune checkpoint target candidate discovered by us that blocks the interaction with its ligand, PVRL2. Our data suggests that the PVRIG pathway is parallel and complementary to TIGIT, an immune
checkpoint discovered computationally by us in 2009. These two pathways intersect with DNAM-1, a costimulatory receptor on T cells and NK cells. The PD-1 pathway also intersects with DNAM-1. In certain tumors, the blockade of both
TIGIT and PVRIG may be required to stimulate an antitumor immune response, with or without additional PD-1 pathway blockade. Phase 1 trials for COM701 were initiated in September 2018.
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COM902 is a high affinity, fully human antibody developed by us, targeting TIGIT, an immune
checkpoint. COM902 blocks the interaction of TIGIT with PVR, its ligand. Our preclinical data suggests that in certain tumor indications the blockage of both TIGIT and PVRIG, two coinhibitory arms of the DNAM-1 axis, may be required
to stimulate an anti-tumor immune response with or without the blockade of the PD-1 pathway. Phase 1 trials for COM902 were initiated in March 2020.
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AZD2936 is a novel PD-1/TIGIT bispecific antibody with a TIGIT component that is derived from
COM902 and is being developed pursuant to an exclusive license agreement with AstraZeneca. AstraZeneca initiated its Phase 2 trial in patients with advanced or metastatic non-small cell lung cancer in September 2022.
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Bapotulimab (formerly known as BAY1905254) is a new immune checkpoint identified by us targeting
ILDR2, that is being developed by Bayer pursuant to a research and discovery collaboration and license agreement signed in 2013. The research and discovery collaboration and license agreement expired on February 27, 2023, and we are
pursuing our right to receive a license under Bayer’s intellectual property as required to allow us to continue the development and commercialization of bapotulimab, to the extent we choose to do so.
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Ordinary shares offered by us:
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Ordinary shares having an aggregate offering price of up to $50 million.
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Ordinary shares to be outstanding after this offering:
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Up to 156,069,087 ordinary shares, assuming sales of 69,444,444 ordinary shares in this offering at an offering price of $0.72 per share, which was the last reported sale price of our
ordinary shares on The Nasdaq Global Market on March 28, 2023. The actual number of ordinary shares issued will vary depending on the sales price under this offering.
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Plan of Distribution:
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“At the market offering” that may be made from time to time through our sales agent, SVB Securities. See “Plan of Distribution” on page S-19 of this prospectus supplement.
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Use of Proceeds:
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We currently intend to use the net proceeds from this offering for pipeline development, general corporate purposes and working capital. See “Use of Proceeds” on page S-10 of this
prospectus supplement.
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Risk Factors:
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Investing in our ordinary shares involves significant risks. See the information under the heading “Risk Factors” beginning on page S-4 of this prospectus supplement, on page 2 of the
accompanying prospectus and in the documents incorporated by reference into this prospectus supplement for a discussion of factors you should carefully consider before deciding to invest in our ordinary shares.
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Trading markets:
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Our ordinary shares are traded on The Nasdaq Global Market and on the TASE under the symbol “CGEN.”
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• |
8,157,749 ordinary shares issuable upon the exercise of outstanding options to purchase ordinary shares, having a weighted average exercise price of $5.43 per share;
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• |
an aggregate 1,918,297ordinary shares issuable and reserved for future grants under our 2010 Share Incentive Plan;
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• |
297,469 ordinary shares issuable upon the exercise of outstanding warrants to purchase ordinary shares, with an exercise price of $4.74 per share; and
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• |
an aggregate of 324,146 ordinary shares issuable under the Compugen 2021 Employee Share Purchase Plan.
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delayed access to deposits or other financial assets or the uninsured loss of deposits or other financial assets;
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inability to enter into credit facilities or other working capital resources;
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potential or actual breach of contractual obligations that require us to maintain letters of credit or other credit support arrangements; or
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termination of cash management arrangements and/or delays in accessing or actual loss of funds subject to cash management arrangements.
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at least 75% of its gross income is passive income, or
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at least 50% of the value (determined on the basis of a quarterly weighted average) of its total assets for the taxable year is attributable to assets that produce or are held for the
production of passive income.
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Printer fees and expenses
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$
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3,000
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||
Legal fees and expenses
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155,000
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Accounting fees and expenses
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50,000
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Miscellaneous
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4,000
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Total
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$
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212,000
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•
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our Annual Report on Form 20-F for the year ended December 31, 2022, filed on February 28, 2023
(File No. 000-30902);
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•
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our Reports on Form 6-K filed on January 31, 2023, February 14, 2023, February
27, 2023, March 6, 2023 and March
10, 2023 (File Nos. 000-30902); and
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•
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the description of our ordinary shares contained in our Registration Statement on Form 8-A, filed with the SEC on August 2, 2000, including any amendments or reports filed for the purpose of updating the
description.
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a breach of duty of care to us or to another person;
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a breach of duty of loyalty to us, provided that the Office Holder acted in good faith and had reasonable grounds to assume that such act would not prejudice our interests;
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monetary liabilities or obligations imposed upon him or her in favor of another person;
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a payment which the Office Holder is obligated to make to an injured party as set forth in Section 52(54)(a)(1)(a) of the Israel Securities Law, 5728-1968, or the Securities Law, and
expenses that the Office Holder incurred in connection with a proceeding under Chapters H’3, H’4 or I’1 of the Securities Law, including reasonable litigation expenses, including attorney’s fees, or in connection with Article D of Chapter
Four of Part Nine of the Companies Law; and
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Expenses incurred by the Office Holder in connection with a proceeding under Chapter G’1, of the Israel Restrictive Trade Practices Law, 5748-1988, or the Restrictive Trade Law, including
reasonable litigation expenses, including attorney’s fees.
|
|
•
|
For any monetary liabilities or obligations imposed on our Office Holder in favor of another person pursuant to a court judgment, including a compromise judgment or an arbitrator’s
decision approved by a court;
|
|
•
|
For any payments which our Office Holder is obligated to make to an injured party as set forth in Section 52(54)(a)(1)(a) of the Securities Law and expenses the Office Holder incurred in
connection with a proceeding under Chapters H’3, H’4 or I’1 of the Securities Law, including reasonable litigation expenses, including attorney’s fees, or in connection with Article D of Chapter Four of Part Nine of the Companies Law;
|
|
•
|
For reasonable litigation expenses, including attorney’s fees, incurred by the Office Holder in consequence of an investigation or proceeding instituted against the Office Holder by an
authority that is authorized to conduct such investigation or proceeding, and which was concluded without filing of an indictment against the Office Holder and without imposing on the Office Holder a financial obligation in lieu of
criminal proceedings, or which was concluded without filing of an indictment against the Office Holder but with imposing on such Office Holder a financial obligation in lieu of criminal proceedings in respect of an offense that does not
require proof of criminal intent or in connection with a financial sanction; For the purposes hereof: (i) “a proceeding that concluded without filing an indictment in a matter in respect of which an investigation was conducted”; and (ii)
“financial obligation in lieu of a criminal proceeding”, shall have the meanings specified in Section 260(a)(1A) of the Companies Law;
|
|
•
|
For reasonable litigation expenses, including attorney’s fees, incurred by the Office Holder or which the Office Holder is ordered to pay by a court, in a proceeding filed against the
Office Holder by the Company or on its behalf or by another person, or in a criminal action of which the Office Holder is acquitted, or in a criminal action in which the Office Holder is convicted of an offense that does not require proof
of criminal intent;
|
|
•
|
For expenses incurred by our Office Holder in connection with a proceeding under Chapter G’1, of the Restrictive Trade Law, including reasonable litigation expenses, including attorney’s
fees;
|
|
•
|
For any other liability, obligation or expense indemnifiable or which our Officer Holders may from time to time be indemnifiable by law.
|
|
•
|
a breach by the office holder of his or her duty of loyalty, except that the company may enter into an insurance contract or indemnify an office holder if the office holder acted in good
faith and had a reasonable basis to believe that the act would not prejudice the company;
|
|
•
|
a breach by the office holder of his or her duty of care if such breach was intentional or reckless, but unless such breach was solely negligent;
|
|
•
|
any act or omission done with the intent to derive an illegal personal benefit; or
|
|
•
|
any fine, civil fine, financial sanction or monetary settlement in lieu of criminal proceedings imposed on such office holder.
|
|
COMPUGEN LTD.
|
|
||
|
By:
|
/s/ Anat Cohen-Dayag
|
|
|
|
|
Name:
|
Anat Cohen-Dayag, Ph.D.
|
|
|
|
Title:
|
President and Chief Executive Officer
|
|
Signature
|
|
Title(s)
|
|
Date
|
|
|
|
|
|
/s/ Anat Cohen-Dayag
|
|
President, Chief Executive Officer and Director
(principal executive officer)
|
|
March 30, 2023
|
Anat Cohen-Dayag, Ph.D.
|
|
|
|
|
|
|
|
|
|
/s/ Alberto Sessa
|
|
Chief Financial Officer
(principal financial and accounting officer)
|
|
March 30, 2023
|
Alberto Sessa
|
|
|
|
|
|
|
|
|
|
/s/ Paul Sekhri
|
|
Chairman of the Board
|
|
March 30, 2023
|
Paul Sekhri
|
|
|
|
|
|
|
|
|
|
/s/ Mathias Hukkelhoven
|
|
Director
|
|
March 30, 2023
|
Mathias Hukkelhoven, Ph.D.
|
|
|
|
|
|
|
|
|
|
/s/ Gilead Halevy
|
|
Director
|
|
March 30, 2023
|
Gilead Halevy
|
|
|
|
|
|
|
|
|
|
/s/ Kinneret Livnat Savitzky
|
|
Director
|
|
March 30, 2023
|
Kinneret Livnat Savitzky, Ph.D.
|
|
|
|
|
/s/ Sanford Zweifach
|
Director
|
March 30, 2023
|
||
Sanford Zweifach
|
||||
/s/ Eran Perry
|
Director
|
March 30, 2023
|
||
Eran Perry
|
|
COMPUGEN USA, INC.
|
|
||
|
|
|
|
|
|
By:
|
/s/ Julia Decker
|
|
|
|
Name:
|
Julia Decker
|
|
|
|
Title:
|
Treasurer and Director of Finance of Compugen USA, Inc.
|
|
ARTICLE 1 DEFINITIONS
|
1
|
||
|
Section 1.01 |
Definitions of Terms
|
1
|
ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
|
5
|
||
|
Section 2.01 |
Designation and Terms of Securities
|
5
|
|
Section 2.02 |
Form of Securities and Trustee’s Certificate
|
8
|
|
Section 2.03 |
Denominations: Provisions for Payment
|
8
|
|
Section 2.04 |
Execution and Authentications
|
10
|
|
Section 2.05 |
Registration of Transfer and Exchange
|
10
|
|
Section 2.06 |
Temporary Securities
|
12
|
|
Section 2.07 |
Mutilated, Destroyed, Lost or Stolen Securities
|
12
|
|
Section 2.08 |
Cancellation
|
13
|
|
Section 2.09 |
Benefits of Indenture
|
13
|
|
Section 2.10 |
Authenticating Agent
|
13 |
|
Section 2.11 |
Global Securities
|
14 |
|
Section 2.12 |
CUSIP Numbers
|
15 |
ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
|
15 |
||
|
Section 3.01 |
Redemption
|
15 |
|
Section 3.02 |
Notice of Redemption
|
15 |
|
Section 3.03 |
Payment Upon Redemption
|
16 |
|
Section 3.04 |
Sinking Fund
|
17 |
|
Section 3.05 |
Satisfaction of Sinking Fund Payments with Securities
|
17 |
|
Section 3.06 |
Redemption of Securities for Sinking Fund
|
17 |
ARTICLE 4 COVENANTS
|
18 |
||
|
Section 4.01 |
Payment of Principal, Premium and Interest
|
18 |
|
Section 4.02 |
Maintenance of Office or Agency
|
18 |
|
Section 4.03 |
Paying Agents
|
19 |
|
Section 4.04 |
Appointment to Fill Vacancy in Office of Trustee
|
20 |
ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
|
20
|
||
|
Section 5.01 |
Company to Furnish Trustee Names and Addresses of Securityholders
|
20
|
|
Section 5.02 |
Preservation Of Information; Communications With Securityholders
|
20
|
|
Section 5.03 |
Reports by the Company
|
20
|
|
Section 5.04 |
Reports by the Trustee
|
21
|
ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
21
|
||
|
Section 6.01 |
Events of Default
|
21
|
|
Section 6.02 |
Collection of Indebtedness and Suits for Enforcement by Trustee
|
23
|
|
Section 6.03 |
Application of Moneys Collected
|
25
|
|
Section 6.04 |
Limitation on Suits
|
25
|
|
Section 6.05 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver
|
26
|
|
Section 6.06 |
Control by Securityholders
|
26
|
|
Section 6.07 |
Undertaking to Pay Costs
|
27
|
ARTICLE 7 CONCERNING THE TRUSTEE
|
27
|
||
|
Section 7.01 |
Certain Duties and Responsibilities of Trustee
|
27
|
|
Section 7.02 |
Certain Rights of Trustee
|
28
|
|
Section 7.03 |
Trustee Not Responsible for Recitals or Issuance or Securities
|
30
|
|
Section 7.04 |
May Hold Securities
|
31
|
|
Section 7.05 |
Moneys Held in Trust
|
31
|
|
Section 7.06 |
Compensation and Reimbursement
|
31
|
|
Section 7.07 |
Reliance on Officer’s Certificate
|
32
|
|
Section 7.08 |
Disqualification; Conflicting Interests
|
32
|
|
Section 7.09 |
Corporate Trustee Required; Eligibility
|
32
|
|
Section 7.10 |
Resignation and Removal; Appointment of Successor
|
32
|
|
Section 7.11 |
Acceptance of Appointment By Successor
|
34
|
|
Section 7.12 |
Merger, Conversion, Consolidation or Succession to Business
|
35
|
|
Section 7.13 |
Preferential Collection of Claims Against the Company
|
35
|
Section 7.14 |
Notice of Default.
|
35
|
ARTICLE 8 CONCERNING THE SECURITYHOLDERS
|
36
|
||
|
Section 8.01 |
Evidence of Action by Securityholders
|
36
|
|
Section 8.02 |
Proof of Execution by Securityholders
|
36
|
|
Section 8.03 |
Who May be Deemed Owners
|
37
|
Section 8.04 |
Certain Securities Owned by Company Disregarded
|
37 | |
Section 8.05 |
Actions Binding on Future Securityholders
|
37 | |
ARTICLE 9 SUPPLEMENTAL INDENTURES
|
38 | ||
Section 9.01 |
Supplemental Indentures Without the Consent of Securityholders
|
38 | |
Section 9.02 |
Supplemental Indentures With Consent of Securityholders
|
39 | |
Section 9.03 |
Effect of Supplemental Indentures
|
39 | |
Section 9.04 |
Securities Affected by Supplemental Indentures
|
39 | |
Section 9.05 |
Execution of Supplemental Indentures
|
40 | |
ARTICLE 10 SUCCESSOR ENTITY | 40 | ||
Section 10.01 |
Company May Consolidate, Etc.
|
40 | |
Section 10.02 |
Successor Entity Substituted
|
41 | |
ARTICLE 11 SATISFACTION AND DISCHARGE
|
41 | ||
Section 11.01 |
Satisfaction and Discharge of Indenture
|
41 | |
Section 11.02 |
Discharge of Obligations
|
42 | |
Section 11.03 |
Deposited Moneys to be Held in Trust
|
42 | |
Section 11.04 |
Payment of Moneys Held by Paying Agents
|
42 | |
Section 11.05 |
Repayment to Company
|
42 | |
ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
|
43
|
||
Section 12.01 |
No Recourse
|
43 | |
ARTICLE 13 MISCELLANEOUS PROVISIONS
|
43 | ||
Section 13.01 |
Effect on Successors and Assigns
|
43 | |
Section 13.02 |
Actions by Successor
|
43 | |
Section 13.03 |
Surrender of Company Powers
|
44 | |
Section 13.04 |
Notices
|
44 |
Section 13.05 |
Governing Law; Jury Trial Waiver
|
44 | |
Section 13.06 |
Treatment of Securities as Debt
|
44 | |
Section 13.07 |
Certificates and Opinions as to Conditions Precedent
|
44 | |
Section 13.08 |
Payments on Business Days
|
45 | |
Section 13.09 |
Conflict with Trust Indenture Act
|
45 | |
Section 13.10 |
Counterparts
|
45 |
|
Section 13.11 |
Separability
|
45 | |
Section 13.12 |
Compliance Certificates
|
45 | |
Section 13.13 |
U.S.A Patriot Act
|
46 |
|
Section 13.14 |
Force Majeure
|
46 |
|
Section 13.15 |
Table of Contents; Headings
|
46 |
|
Compugen Ltd.
|
|
By: ______________________________
|
|
Name:____________________________
|
|
Title: _____________________________
|
|
|
|
[Trustee], as Trustee
|
|
|
|
By: ______________________________
|
|
Name:____________________________
|
|
Title: _____________________________
|
Section of Trust Indenture Act of 1939, as Amended
|
Section of Indenture
|
|
310(a)
|
7.09
|
|
310(b)
|
7.08
|
|
7.10
|
||
310(c)
|
Inapplicable
|
|
311(a)
|
7.13
|
|
311(b)
|
7.13
|
|
311(c)
|
Inapplicable
|
|
312(a)
|
5.01
|
|
5.02(a)
|
||
312(b)
|
5.02(c)
|
|
312(c)
|
5.02(c)
|
|
313(a)
|
5.04(a)
|
|
313(b)
|
5.04(b)
|
|
313(c)
|
5.04(a)
|
|
5.04(b)
|
||
313(d)
|
5.04(c)
|
|
314(a)
|
5.03
|
|
13.12
|
||
314(b)
|
Inapplicable
|
|
314(c)
|
13.07(a)
|
|
314(d)
|
Inapplicable
|
|
314(e)
|
13.07(b)
|
|
314(f)
|
Inapplicable
|
|
315(a)
|
7.01(a)
|
|
7.01(b)
|
||
315(b)
|
7.14
|
|
315(c)
|
7.01
|
|
315(d)
|
7.01(b)
|
|
315(e)
|
6.07
|
|
316(a)
|
6.06
|
|
8.04
|
||
316(b)
|
6.04
|
|
316(c)
|
8.01
|
|
317(a)
|
6.02
|
|
317(b)
|
4.03
|
|
318(a)
|
13.09
|
(1) |
This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
|
|
|
Very truly yours,
|
|
|
|
|
|
|
|
/s/ Shibolet & Co., Law Firm
Shibolet & Co., Law Firm
|
|
Daniel I. Goldberg
T: +1 212 479 6722
dgoldberg@cooley.com
|
• |
ordinary shares, par value NIS0.01 per share, of the Company (the “Ordinary Shares”);
|
• |
debt securities, in one or more series (the “Debt Securities”), which may be issued pursuant to an
indenture to be dated on or about the date of the first issuance of Debt Securities thereunder, by and between a trustee to be selected by the Company (the “Trustee”) and the Company, in the
form filed as Exhibit 4.2 to the Registration Statement and one or more indentures supplemental thereto with respect to any particular series of Debt Securities (the “Indenture”);
|
• |
warrants for the purchase of Ordinary Shares, in one or more series (the “Warrants”);
|
• |
rights to purchase any other securities of the Company (“Rights”); and
|
• |
units comprised of one or more of the other securities of the Company (the “Units”).
|
Compugen Ltd.
March 30, 2023
Page Two
|
Compugen Ltd.
March 30, 2023
Page Three
|
Tel Aviv, Israel
|
/s/ Kost Forer Gabbay & Kasierer
KOST FORER GABBAY & KASIERER
|
|
March 30, 2023
|
A Member of Ernst & Young Global
|
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 |
Fee
Rate |
Amount of
Registration Fee |
|||||||||||||||||||||||
Fees to Be Paid
|
Equity
|
Ordinary Shares, par value NIS 0.01 per share
|
(1)
|
—
|
$
|
—
|
$
|
—
|
—
|
$
|
—
|
|||||||||||||||||||
Debt
|
Debt Securities
|
(1)
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||
Equity
|
Warrants
|
(1)
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||
Other
|
Rights
|
(1)
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||
Equity
|
Units
|
(1)
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||
Unallocated (Shelf)
|
(1)
|
(1)
|
(1)
|
(2)
|
$
|
350,000,000
|
0.0001102
|
$
|
38,570
|
|||||||||||||||||||||
Total Offering Amounts
|
$
|
350,000,000
|
$
|
38,570
|
||||||||||||||||||||||||||
Total Fees Previously Paid
|
—
|
|||||||||||||||||||||||||||||
Total Fee Offsets
|
$
|
38,570
|
(3)
|
|||||||||||||||||||||||||||
Net Fee Due
|
$
|
0
|
(3)
|
(1)
|
There are being registered hereunder such indeterminate number of the securities of each identified class being registered as may be sold by the registrant from time to time at
indeterminate prices, with the maximum aggregate public offering price not to exceed $350 million. Also includes such indeterminate number of securities of Compugen Ltd. (the “Registrant”) as may be issued upon exercise, conversion or
exchange of these securities. Separate consideration may or may not be received for securities that are issuable upon exercise, conversion or exchange of other securities.
|
(2)
|
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.C. of Form F-3 under the Securities Act of 1933, as amended (the “Securities Act”).
|
(3)
|
The Registrant previously filed a Registration Statement on Form F-3 with the Securities and Exchange Commission on July 30, 2020 (File No. 333-240183), which was declared effective on
August 7, 2020 (the “Prior Registration Statement”), that registered an aggregate of $350,000,000 of an indeterminate number of securities to be offered by the Registrant from time to time. Of the
$350,000,000 of securities registered on the Prior Registration Statement, for which the Registrant paid a filing fee of $45,430 in connection therewith, $346,449,247 of the securities remain unsold, leaving $44,969 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 $38,570 of the unused filing fees to
offset the filing fee payable in connection with this filing. Accordingly, no additional registration fee 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.
|
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
|
Compugen Ltd.
|
F-3
|
333-240183
|
July 30, 2020
|
$38, 570
|
Unallocated (Universal) Shelf
|
(1)
|
Unallocated (Universal) Shelf
|
$346,449,247
|
|||||||||||||||||||||||||||||||||||
Fee Offset Sources
|
Compugen Ltd.
|
F-3
|
333-240183
|
July 30, 2020
|
$
|
38,570
|