As filed with the Securities and Exchange Commission on June 21, 2018
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
Therapix Biosciences Ltd.
(Exact name of registrant as specified in charter)
State of Israel | Not Applicable | |
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer Identification No.) |
|
4 Ariel Sharon Street HaShahar Tower, 16th Floor Givatayim, Israel |
5320047 | |
(Address of principal executive offices) | (Zip Code) |
Therapix Biosciences Ltd. Israeli Share Option Plan (2005)
Therapix Biosciences Ltd. Israeli Share Option Plan (2015)
(Full Title of the Plan)
C T Corporation System
111 Eighth Avenue
13th Floor
New York, New York 10011
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies of communications to:
Jeffrey P. Schultz, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C.
Chrysler Center, 666 Third Avenue
New York, NY 10017
Tel: 212-935-3000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☐ | Accelerated filer | ☐ |
Accelerated filer | ☐ |
Smaller reporting company |
☐ |
Non-accelerated filer | ☒ |
Emerging growth company |
☒ |
(Do not check if a smaller reporting company) |
If an emerging growth company, 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 . o
CALCULATION OF REGISTRATION FEE
Title of securities to be registered |
Amount to be registered (2) |
Proposed maximum offering price per share |
Proposed maximum aggregate offering price |
Amount of registration fee |
||||||||||||
Ordinary Shares, par value NIS 0.10 per share (1) | 769,037 | $ | 0.14 | $ | 107,665.18 | (3) | $ | 13.40 | ||||||||
Ordinary Shares, par value NIS 0.10 per share (1) | 20,880,000 | $ | 0.16 | $ | 3,340,800 | (4) | $ | 415.93 | ||||||||
Ordinary Shares, par value NIS 0.10 per share (1) | 10,120,000 | $ | 0.11 | $ | 1,113,200 | (5) | $ | 138.59 | ||||||||
Total | 31,769,037 | $ | 4,561,665.18 | $ | 567.92 |
(1) |
American Depositary Shares (the “ ADSs ”), evidenced by American Depositary Receipts, issuable upon deposit of the Ordinary Shares registered hereby, par value NIS 0.10 per share (the “ Ordinary Shares ”), of Therapix Biosciences Ltd. (the “ Registrant ” or “ Company ” ) are registered on a separate registration statement on Form F-6 (File No. 333-197509). Each ADS represents forty (40) Ordinary Shares.
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(2) | This Registration Statement on Form S-8 covers the following Ordinary Shares of Therapix Biosciences Ltd. (the “ Registrant ”): |
(i) 769,037 Ordinary Shares issuable upon the exercise of options granted prior to the date hereof under the Registrant's Israeli Share Option Plan (2005) (the “ 2005 Plan ”), (ii) 20,880,000 Ordinary Shares issuable upon the exercise of options granted prior to the date hereof under the Registrant's Israeli Share Option Plan (2015), as amended (the “ 2015 Plan ”), (iii) 10,120,000 Ordinary Shares available for issuance pursuant to future grants under the 2015 Plan, and (iv) pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “ Securities Act ”), an indeterminate number of additional shares that may become issuable under the terms of the 2015 Plan by reason of any share split, share dividend, recapitalization or other similar transaction effected without the Registrant's receipt of consideration which results in an increase in the number of the outstanding shares of the Registrant's Ordinary Shares. |
(3) | Calculated solely for the purpose of determining the registration fee pursuant to Rule 457(h) under the Securities Act on the basis of US$0.14 per share, the weighted average exercise price of the 1,090,361 Ordinary Shares issuable upon exercise of outstanding options under the 2005 Plan as of the date of this Registration Statement. |
(4) | Calculated solely for the purpose of determining the registration fee pursuant to Rule 457(h) under the Securities Act on the basis of US$0.l6 per share, the weighted average exercise price of the 23,100,000 Ordinary Shares issuable upon exercise of outstanding options under the 2015 Plan as of the date of this Registration Statement. |
(5) | Calculated solely for the purpose of determining the registration fee pursuant to Rule 457(h) and (c) on the basis of the average of the high and low prices of the Registrant's ADSs as reported on the Nasdaq Capital Market on June 20, 2018 with respect to Ordinary Shares reserved for issuance pursuant to future grants under the 2015 Plan. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
* The documents containing the information specified in this Part I of Form S-8 (plan information and registration information and employee plan annual information) will be sent or given to employees as specified by the Securities and Exchange Commission (the “ Commission ”) pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the “ Securities Act ”). Such documents are not required to be and are not filed with the Commission either as part of this registration statement (this “ Registration Statement ”) or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. The Registrant will provide a written statement to participants advising them of the availability without charge, upon written or oral request, of the documents incorporated by reference in Item 3 of Part II hereof and including the statement in the preceding sentence. The written statement to all participants will indicate the availability without charge, upon written or oral request, of other documents required to be delivered pursuant to Rule 428(b), and will include the address and telephone number to which the request is to be directed.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Therapix Biosciences Ltd. (the “ Company ”) are incorporated herein by reference:
● | Annual Report on Form 20-F for the year ended December 31, 2017, filed on April 30, 2018 (File No. 001-38041); |
● | Our Reports on Form 6-K filed on January 16, 2018, March 20, 2018, April 9, 2018, April 20, 2018, April 27, 2018, May 4, 2018, May 9, 2018, May 17, 2018, June 6, 2018 and June 14, 2018; and |
● | the description of our ADSs and ordinary shares contained in our Form 8-A filed on March 21, 2017 (File No. 001-38041). |
In addition to the foregoing, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), prior to the filing of a post-effective amendment indicating that all securities offered hereby have been sold or deregistering all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Indemnification
The Israeli Companies Law (5759-1999) (the “ Companies Law ”) and our articles of association provide that the Registrant may indemnify an office holder against:
● | a financial liability imposed on him or her in favor of another person by any judgment concerning an act performed in his or her capacity as an office holder, including a settlement or arbitrator’s award approved by a court; However, if an undertaking to indemnify an office holder with respect to such liability is provided in advance, then such an undertaking must be limited to events which, in the opinion of the Board of Directors, can be foreseen based on the company’s activities when the undertaking to indemnify is given, and to an amount or according to criteria determined by the Board of Directors as reasonable under the circumstances, and such undertaking must detail the abovementioned foreseen events and amount or criteria; |
● | reasonable litigation expenses, including attorneys’ fees, incurred by the office holder: (i) as a result of an investigation or proceeding instituted against him or her by an authority authorized to conduct such investigation or proceeding, provided that (a) no indictment (as defined in the Companies Law) was filed against such office holder as a result of such investigation or proceeding; and (b) no financial liability as a substitute for the criminal proceeding (as defined in the Companies Law) was imposed upon him or her 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; and (ii) in connection with a monetary sanction; |
● | reasonable litigation expenses, including attorneys’ fees, expended by the office holder or charged to him or her by a court relating to an act performed in his or her capacity as an office holder, in connection with: (1) proceedings that the company institutes, or that another person institutes on the company’s behalf, against him or her; (2) a criminal charge of which he or she was acquitted; or (3) a criminal charge for which he or she was convicted for a criminal offense that does not require proof of criminal thought; |
● | expenses incurred by an office holder relating to an administrative enforcement proceeding conducted with regard to such office holder, including reasonable litigation expenses and including attorneys’ fees; |
● | payment to the party injured by the violation; and |
● | liability or expense otherwise permitted as an indemnification by the Companies Law. |
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Our articles of association allow us to indemnify our office holders up to a certain amount. The Companies Law also permits a company to undertake in advance to indemnify an office holder, provided that if such indemnification relates to financial liability imposed on him or her, as described above, then the undertaking should be limited:
● | to categories of events that the Board of Directors determines are likely to occur in light of the operations of the company at the time that the undertaking to indemnify is made; and |
● | in amount or criterion determined by the Board of Directors, at the time of the giving of such undertaking to indemnify, to be reasonable under the circumstances. |
We have entered into indemnification agreements, which were amended following the consummation of our U.S. initial public offering and listing on NASDAQ, with each of our directors and with certain members of our senior management. Each such indemnification agreement provides the office holder with indemnification to the fullest extent permitted under applicable law and up to a certain amount, and including with respect to liabilities resulting from our March 2017 initial public offering in the United States, and to the extent that the directors and officers insurance do not cover these liabilities.
Exculpation
Under the Companies Law, an Israeli company may not exculpate an office holder from liability for a breach of his or her duty of loyalty, but may exculpate in advance an office holder from his or her liability to the company, in whole or in part, and for damages caused to the company as a result of a breach of his or her duty of care (other than in relation to distributions), but only if a provision authorizing such exculpation is included in its articles of association. A company may not exculpate a director from liability arising out of a prohibited dividend or distribution to shareholders. Our articles of association provide that we may exculpate any office holder from liability to us to the fullest extent permitted by law.
We have entered into exculpation agreements with each of our current directors and executive officers undertaking to exculpate and release our office holders from any and all liability to us related to any breach by them of their duty of care to us to the fullest extent permitted by law and including with respect to liabilities resulting from our March 2017 initial public offering in the United States.
Limitations
The Companies Law provides that we may not exculpate or indemnify an office holder nor enter into an insurance contract that would provide coverage for any liability incurred as a result of any of the following: (1) a breach by the office holder of his or her duty of loyalty unless (in the case of indemnity or insurance only, but not exculpation) the office holder acted in good faith and had a reasonable basis to believe that the act would not prejudice us; (2) a breach by the office holder of his or her duty of care if the breach was carried out intentionally or recklessly (as opposed to merely negligently); (3) any action taken or omission committed with the intent to derive an illegal personal benefit; or (4) any fine or forfeit levied against the office holder.
We have obtained directors and officers liability insurance for the benefit of our office holders and intend to continue to maintain such coverage and pay all premiums thereunder to the fullest extent permitted by the Companies Law.
Insofar as the indemnification for liabilities arising under the Securities Act of 1933, as amended, or the Securities Act, may be permitted to directors, officers or persons controlling the registrant, we have been informed that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The exhibits listed on the exhibit index at the end of this Registration Statement are included in this Registration Statement.
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Item 9. Undertakings
The undersigned Registrant, Therapix Biosciences Ltd., 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 this 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 this Registration Statement; and |
(iii) | to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement. |
provided , however , that paragraphs (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(2) | that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and |
(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; and |
The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Sections 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.
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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 S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Givatayim, Israel, on June 21, 2018.
THERAPIX BIOSCIENCES LTD. | ||
By: | /s/ Ascher Shmulewitz | |
Name: Ascher Shmulewitz, M.D, Ph.D. | ||
Title: Chief Executive Officer |
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below hereby constitutes and appoints Dr. Ascher Shmulewitz and Oz Adler, and each of them, his true and lawful attorneys-in-fact and agents, with full power to act separately and full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or his or her 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, as amended, this registration statement has been signed by the following persons on June 21, 2018 in the capacities indicated:
Signature and Name | Title | Date | ||
/s/ Ascher Shmulewitz | Chairman of the Board of Directors and Chief | June 21, 2018 | ||
Ascher Shmulewitz, M.D, Ph.D. | Executive Officer (Principal Executive Officer) | |||
/s/ Oz Adler | Chief Financial Officer (Principal Financial and | June 21, 2018 | ||
Oz Adler | Accounting Officer) | |||
/s/ Amit Berger | Director | June 21, 2018 | ||
Amit Berger | ||||
/s/ Yafit Stark | Director | June 21, 2018 | ||
Dr. Yafit Stark | ||||
/s/ Eric So | Director | June 21, 2018 | ||
Eric So | ||||
/s/ Zohar Heiblum | Director | June 21, 2018 | ||
Zohar Heiblum | ||||
/s/ Stephen M. Simes | Director | June 21, 2018 | ||
Stephen M. Simes |
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SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant to the Securities Act of 1933, as amended, the undersigned, C T Corporation System, the duly authorized representative in the United States of Therapix Biosciences Ltd., has signed this registration statement on June 21, 2018.
C T Corporation System | ||
By: | /s/ Brian Mueller | |
Brian Mueller | ||
Assistant Secretary |
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EXHIBITS
8 |
Exhibit 5.1
Yuval
Horn, Keren Kanir*, Roy Ribon, Ohad Mamann, Orly Sternfeld, Paz Abercohen,
Danielle Wassner, Shimrit Roznek, Assaf Unger, Uri Dotan, Maya Weiss Donin,
Victoria Zilberman, Alon Shafrir
* Also admitted in New York
Tel-Aviv, June 21, 2018 |
Ref: 1513/21 |
To:
Therapix Biosciences Ltd.
4 Ariel Sharon Street
HaShahar Tower, 16th Floor
Givatayim 5320047, Israel
Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have acted as Israeli counsel to Therapix Biosciences Ltd., a company organized under the laws of the State of Israel (the “ Company ”), in connection with its registration statement on Form S-8 (the “ Registration Statement ”) filed with the Securities and Exchange Commission under the Securities Act of 1933 (the “ Securities Act ”) covering up to 31,769,037 ordinary shares of the Company, par value New Israeli Shekel 0.1 per share (“ Ordinary Shares ”), in the aggregate, as follows: (i) 769,037 Ordinary Shares issuable upon exercise of outstanding options under the Company's Israeli Share Option Plan (2005) (the “ 2005 Plan ”), and (ii) 31,000,000 Ordinary Shares issuable upon exercise of outstanding options under the Company's Israeli Share Option Plan (2015) (the “ 2015 Plan ”) and any additional Ordinary Shares that may become authorized for issuance under the 2015 Plan following the cancellation, termination or expiration of options issued under the 2005 Plan, without having been exercised for any reason, of which options for 20,880,000 Ordinary Shares were granted and the remainder is available and subject to the grant of future options or other awards under the 2015 Plan according to the terms of such Plan (together with the 2005 Plan, the “ Plans ”; and collectively, we refer to all Ordinary Shares issuable upon exercise of options under the Plans as the “ Shares ”).
In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the Plans, the Registration Statement, the Company’s Articles of Association (as amended), and such other corporate records, agreements, certificates, resolutions, minutes and other statements and comparable documents of public officials and of corporate officers and other representatives of the Company and others and other documents and instruments, provided to us by the Company as we have deemed necessary or appropriate as a basis for this opinion. As to matters of fact relevant to our opinion, we have relied exclusively, without independent investigation or verification, upon statements, certificates or comparable documents of officers and representatives of the Company.
In rendering an opinion on the matters hereinafter set forth, we have assumed the authenticity of all original documents submitted to us as certified, conformed or photographic copies thereof, the genuineness of all signatures and the due authenticity of all persons executing such documents. We have assumed the same to have been properly given and to be accurate. We have also assumed the truth of all facts communicated to us by the Company and that all consents, minutes and protocols of meetings of the Company’s committees, board of directors and shareholders which have been provided to us are true and accurate and have been properly prepared in accordance with the Company’s Articles of Association (as amended) and all applicable laws. In addition, we have assumed that the Company will duly approve any further future issuances of options and awards under the 2015 Plan, receive the full consideration for the Shares (which may consist, in part or in full, of services performed for the Company), and that the associated tax will be paid by or deducted at source.
Members of our firm are admitted to the Bar in the State of Israel, and we do not express any opinion as to the laws of any other 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 jurisdiction other than the laws of the State of Israel.The opinion expressed herein is 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 this opinion should such law be changed by legislative action, judicial decision or otherwise. In rendering our opinion, 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 jurisdiction, court or administrative agency other than those of the State of Israel. This opinion is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated herein.
Based upon and subject to the foregoing, we are of the opinion that the Shares have been duly authorized and reserved for issuance and, when issued and paid for, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement. In giving this opinion and such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act, the rules and regulations of the Securities and Exchange Commission promulgated thereunder or Item 509 of Regulation S-K promulgated under the Securities Act.
This opinion letter is rendered as of the date hereof and is subject to, and may be limited by, future changes in the factual matters set forth herein, and we disclaim any obligation and undertake no duty to to advise you of facts, circumstances, events or developments that may be brought to our attention after the effective date of the Registration Statement that may alter, affect or modify the opinions expressed herein.
Very truly yours, | |
/s/ Horn & Co. – Law Offices | |
Horn & Co. – Law Offices |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference, in this Registration Statement on Form S-8 pertaining to the Therapix Biosciences Ltd. Israeli Share Option Plan (2005) and Israeli Share Option Plan (2015) of our report dated April 30, 2018, with respect to the consolidated financial statements of Therapix Biosciences Ltd. and its subsidiaries (the "Company"), included in the Annual Report on Form 20-F of the Company for the year ended December 31, 2017, filed with the Securities and Exchange Commission.
Haifa, Israel | /s/ KOST FORER GABBAY & KASIERER |
June 21, 2018 | A Member of Ernst & Young Global |