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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 16, 2023
NOTABLE LABS, LTD.
(Exact name of registrant as specified in charter)
| Israel | 001-36581 | Not Applicable | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| 320 Hatch Drive | ||||
| Foster City, California | 94404 | |||
| (Address of principal executive offices) | (Zip Code) |
| Registrant’s telephone number, including area code: (415) 851-2410 |
|
Vascular Biogenics Ltd. 8 HaSatat St. Modi’in, Israel 7178106 |
(Former name or former address, if changed since last report)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Ordinary Shares, par value NIS 0.35 each | NTBL | The Nasdaq Capital Market |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth 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 13(a) of the Exchange Act. ☐
Item 2.01 Completion of Acquisition or Disposition of Assets.
The Merger
On October 16, 2023, Notable Labs, Ltd., formerly known as “Vascular Biogenics Ltd.” (the “Company” or “VBL”), completed its business combination with Notable Labs, Inc. (“Notable”) and Vibrant Merger Sub, Inc., a wholly-owned subsidiary of the Company (“Merger Sub”) in accordance with the terms of the Agreement and Plan of Merger, dated as of February 22, 2023 (the “Merger Agreement”), by and among the Company, Notable and Merger Sub. Pursuant to the Merger Agreement, Merger Sub merged with and into Notable, with Notable surviving as a wholly owned subsidiary of the Company (the “Merger”). Also on October 16, 2023, in connection with, and prior to completion of, the Merger, the Company effected a 1-for-35 reverse share split (the “Reverse Share Split”) of its ordinary shares, of a nominal value of NIS 0.35 each (“Ordinary Shares”). The Company also changed its name to “Notable Labs, Ltd.” (the “Name Change”). Following the completion of the Merger, the business of Notable became the business conducted by the Company, which is a clinical-stage platform therapeutics company developing predictive precision medicines for patients with cancer. Unless otherwise noted, all references to share amounts in this Current Report on Form 8-K reflect the Reverse Share Split.
Under the terms of the Merger Agreement, at the effective time of the Merger (the “Effective Time”) each share of Notable’s common stock, par value $0.001 per share, (“Notable Common Stock”), outstanding immediately prior to the Effective Time was converted into the right to receive approximately 0.0629 Ordinary Shares, reflecting adjustment to account for the effect of the Reverse Share Split, and also reflecting adjustment based on the Company Net Cash (as defined in the Merger Agreement) relative to Target Net Cash immediately prior to the closing of the Merger, and other adjustments.
Prior to the Closing, certain existing stockholders of Notable purchased an aggregate of approximately $10.3 million of Notable’s Series D-1 preferred shares and Series D-2 preferred shares. Prior to the Closing the Series D-1 preferred shares and Series D-2 preferred shares converted into Notable Common Stock, which were then converted into a right to receive Ordinary Shares at the Effective Time.
Immediately following the Reverse Share Split, at the Effective Time there were approximately 8,936,448 Ordinary Shares outstanding, of which the existing VBL shareholders owned approximately 2,218,299 outstanding Ordinary Shares and the former Notable shareholders owned approximately 6,718,149 outstanding Ordinary Shares. On a fully-diluted basis, the former Notable shareholders beneficially own approximately 75.2% of the VBL Ordinary Shares. The officers and directors of Notable prior to the Closing and certain Notable stockholders are subject to lock-up agreements. Pursuant to the lock-up agreements, the parties have agreed, except in limited circumstances, not to offer, pledge, sell or otherwise transfer or dispose of, directly or indirectly, or engage in swap or similar transactions with respect to the Ordinary Shares, or securities exchangeable for Ordinary Shares, for a period of 60 days following the Closing.
In addition, effective upon the Closing, the holders of unexercised Notable stock options and warrants immediately prior to the Closing were issued replacement stock options and warrants to purchase an aggregate of 255,646 Ordinary Shares.
The Ordinary Shares, which are listed on The NASDAQ Capital Market, traded through the close of business on October 16, 2023 under the ticker symbol “VBLT,” and will continue trading on The NASDAQ Capital Market, on a post-Reverse Share Split adjusted basis, under the ticker symbol “NTBL” beginning on October 17, 2023. The Ordinary Shares are represented by a new CUSIP number, M7517R107.
The foregoing description of the Merger Agreement contained herein does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which is attached hereto as Exhibit 2.1, and incorporated herein by reference.
The information set forth in Item 5.02 regarding the indemnification agreements is incorporated by reference into this Item 2.01.
On October 16, 2023, the Company issued a press release announcing the completion of the Merger. The press release is attached hereto as Exhibit 99.1.
The VB-601 Asset Sale
On October 16, 2023, the Company completed the sale of VB-601 and MOSPD2 related assets (the “VB-601 Asset”) to Immunewalk Therapeutics Inc. (“Immunewalk”), pursuant to the terms of an Asset Purchase Agreement dated as of October 1, 2023, between the Company and Immunewalk (the “Asset Purchase Agreement”). Under the Asset Purchase Agreement, Immunewalk agreed to pay an upfront cash payment of $250,000 to the Company at the closing and additional payments of up to $4.75 million upon the achievement of clinical and commercial milestones by Immunewalk, its Affiliates or Licensees. Immunewalk also agreed to pay a low to mid-single digit percentage tiered royalty on aggregate annual Net Sales by Immunewalk or any of its Affiliates above $50 million, for the sale of Covered Products. The Asset Purchase Agreement also clarified that in cases where Immunewalk licenses any of the VB-601 Assets, the Company is entitled to receive a low-teen digit percentage of the License Fees actually received by Immunewalk from a Licensee with respect to Net Sales of such Licensee and adjusted the definition of Net Sales in the Asset Purchase Agreement. In addition, the parties further agreed that in the event of an asset sale by Immunewalk, the royalty rates shall be adjusted as set forth in the Asset Purchase Agreement.
Capitalized terms used and not otherwise defined herein shall bear the respective meanings ascribed to them in the Asset Purchase Agreement.
The foregoing description of the Asset Purchase Agreement is not complete and is subject to and qualified in its entirety by reference to the Asset Purchase Agreement, which is attached hereto as Exhibit 10.5, and incorporated herein by reference.
Item 3.03. Material Modification to Rights of Security Holders.
As previously disclosed, at the annual and special meeting of the Company’s shareholders held on October 12, 2023, the Company’s shareholders approved amendments to the Company’s Amended and Restated Articles of Association (the “Articles”), to effect the Reverse Share Split, to increase the Company’s registered share capital by up to NIS 10,000,000 and the creation of up to additional 1,000,000,000 Ordinary Shares, subject to any adjustments required pursuant to the Merger and the Reverse Share Split, as determined by the Company’s board of directors (the “Share Capital Increase”), approve change of the Company’s name to “Notable Labs, Ltd.” or a similar name approved by the Israeli Registrar of Companies, effective as of the Effective Time, and a modification to the legal quorum required for the Company’s general meeting of shareholders, which shall consist of at least one (1) shareholder who holds or represents at least 33 1/3% of the voting rights in the Company (the “Quorum Modification”), effective as of the Effective Time.
On October 16, 2023, immediately prior to the closing of the Merger, the Company filed an amendment to the Articles with the Israeli Registrar of Companies reflecting the Reverse Share Split (including an increase in par value to NIS 0.35 per Ordinary Share), the Share Capital Increase (such that the Company has 34,285,714 authorized Ordinary Shares and NIS 12,000,000 of registered share capital) and the Name Change. As a result of the Reverse Share Split, the number of issued and outstanding Ordinary Shares immediately prior to the Reverse Share Split was reduced into a smaller number of Ordinary Shares, such that every 35 Ordinary Shares held by a shareholder immediately prior to the Reverse Share Split were combined and reclassified into one Ordinary Share. Immediately following the Reverse Share Split and the closing of the Merger, there were approximately 8,936,448 Ordinary Shares outstanding.
No fractional shares were issued in connection with the Reverse Share Split. Any fractional shares resulting from the Reverse Stock Split were rounded up to the nearest whole number, and each shareholder who would otherwise be entitled to a fraction of an Ordinary Share upon the Reverse Stock Split (after aggregating all fractions of a share to which such shareholder would otherwise be entitled) is, in lieu thereof, entitled to receive a whole Ordinary Share.
The foregoing description of the amendments to the Articles is not complete and is subject to and qualified in its entirety by reference to the amendment to the Articles, a copy of which is attached hereto as Exhibit 3.1 and incorporated herein by reference.
Item 5.01 Changes in Control of Registrant.
The information set forth in Item 2.01 regarding the Merger and the information set forth in Item 5.02 regarding the Company’s board of directors and executive officers following the Merger are incorporated by reference into this Item 5.01.
Item. 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Directors
In accordance with the Merger Agreement, on October 16, 2023, effective immediately prior to the Closing, each of Dror Harats, M.D., Ruth Alon, Shmuel Ben Zvi, David Hastings and Marc Kozin resigned from the Company’s board of directors and committees of the board of directors on which they respectively served, which resignations were not the result of any disagreements with the Company relating to the Company’s operations, policies or practices.
The Merger Agreement provides that, immediately following the Effective Time, the board of directors of the combined company will consist of up to seven directors, with one director designated by the Company, who is Michael Rice, and up to six members designated by Notable. In accordance with the Merger Agreement, at the Closing on October 16, 2023, the board of directors and its committees were reconstituted, with Dr. Thomas Bock, Peter Feinberg, Michele Galen, Tuomo Pätsi, Michael Rice, Thomas I. H. Dubin and Thomas Graney as the members of the board of directors. In addition, Mr. Graney, Mr. Feinberg and Mr. Rice were appointed to the Company’s Audit Committee (Mr. Graney was appointed to serve as chair of the committee); Mr. Dubin and Ms. Galen were appointed to the Company’s Compensation Committee (Mr. Dubin was appointed to serve as chair of the committee and Mr. Rice continuing to serve as a member of the committee); and Mr. Pätsi, Mr. Feinberg and Dr. Bock were appointed to the Nominating and Governance Committee (with Mr. Pätsi appointed to serve as chair of the committee).
For a discussion of “related person” transactions (as such term is defined in Item 404(a) of Regulation S-K) with respect to the Company’s directors, please refer to “Related Party Transactions of Directors and Executive Officers of the Combined Organization” on pages 252-255 of the definitive proxy statement for the special and 2023 annual meeting of the Company’s shareholders filed on September 6, 2023 (the “Proxy Statement”), which information is incorporated herein by reference.
Executive Officers
In accordance with the Merger Agreement, effective immediately after the Closing, on October 16, 2023, the Company’s board of directors appointed: Dr. Thomas Bock as President and Chief Executive Officer; Scott A. McPherson as Chief Financial Officer; and Joseph Wagner as Chief Scientific Officer.
These executive officers received the following Company securities in connection with the Closing:
| ● | Dr. Bock exchanged his existing options to purchase up to 1,715,247 shares of Notable Common Stock for options to purchase up to approximately 107,891 Ordinary Shares; and |
| ● | Mr. Wagner exchanged his existing options to purchase up to 370,727 shares of Notable Common Stock for options to purchase up to approximately 23,319 Ordinary Shares. |
Thomas Bock, M.D.
Dr. Thomas A. Bock, Chief Executive Officer and Director. Dr. Thomas Bock, age 59, joined Notable as a Director in October 2020, was appointed as its interim Chief Executive Officer in February 2021 and was appointed as Chief Executive Officer on a permanent basis in April 2021. Dr. Bock has more than 20 years of biotechnology industry experience plus 10 years of experience in academic medicine and research. From December 2020 to March 2021 he served as a senior advisor to Ordaos, an AI drug design and development company. From July 2020 to January 2021 he served as a founder and CEO of Tirili LLC, an early-stage health technology company. Triggered by his spouse’s inherited BRCA cancer diagnosis, Dr. Bock founded HeritX, and between March 2015 and February 2019, served as CEO and Director of HeritX Inc., a pioneer in cancer prevention through pre-cancer vaccines, immunoprevention, and gene repair. Previously, he served as Senior Vice President Medical Affairs on the executive management team of Alexion Pharmaceuticals, building a start-up into a global leader in ultra-rare disorders. Before joining Alexion, Dr. Bock built and led the worldwide Medical Affairs Departments of Novartis Oncology and Celgene as their Vice President and Global Head of Medical Affairs. Prior to Celgene, Dr. Bock served as the Medical Director of Amgen Europe for hematology and oncology. Prior to joining the biopharmaceutical industry, Dr. Bock worked in medical practice and research in the fields of cancer, stem cell biology, and gene therapy at European medical centers and the US National Human Genome Research Institute. Dr. Bock earned his M.D. at RWTH Aachen University and his M.B.A. at Columbia Business School. Dr Bock has also served as the Board Chair of Columbia Business School’s Healthcare Advisory Board.
Pursuant to his amended and restated employment agreement, dated April 30, 2021 (the “Bock Agreement”), Dr. Bock is entitled to an annualized base salary of $380,000 (which was most recently increased to $391,400 by Notable’s board of directors on July 28, 2022), payable in substantially equal periodic installments in accordance with Notable’s payroll practices. In addition, Dr. Bock is entitled to receive, subject to employment by Notable on the applicable date of bonus payout, an annual target discretionary bonus equal to 30% of his annual base salary, payable at the discretion of the board of directors, based upon metrics to be mutually agreed upon by Dr. Bock and the board of directors. Under the terms of the Bock Agreement, Dr. Bock is eligible to receive a cash bonus of $37,500 upon the closing of a transaction with either or both of OnKure, Inc. (“OnKure”) or CicloMed and a cash bonus in the amount of $100,000 upon the closing by Notable of a strategic M&A transaction or a single “in-licensing” transaction (other than with OnKure or CicloMed) approved by the board of directors during the term of the Bock Agreement., both of which have been earned by Dr. Bock and paid out to him. Pursuant to the Bock Agreement, Dr. Bock is also eligible to receive healthcare benefits as may be provided from time to time by Notable to its employees generally, and to receive paid time off annually in accordance with Notable’s policies in effect from time to time. Additionally, the Bock Agreement provides Dr. Bock with a monthly travel expense allowance of $1,000 and reimbursement for ordinary and reasonable out-of-pocket business expenses incurred by him in furtherance of Notable’s business.
Under the terms of the Bock Agreement, in the event that Dr. Bock’s employment is terminated other than for Cause, or Dr. Bock terminates his employment for Good Reason (each as defined in the Bock Agreement), then, in addition to the accrued obligations and the bonus (if deemed earned), Dr. Bock shall receive the following, subject to his execution of a release:
| (1) | Payment of a lump sum amount equal to six months of Dr. Bock’s then-current base salary, less all customary and required taxes and employment-related deductions, paid on the first payroll date following the date on which the release becomes effective and non-revocable, but not after 70 days following the effective date of termination from employment. | |
| (2) | Notable shall continue to provide Dr. Bock medical insurance coverage to the same extent that such insurance continues to be provided to Dr. Bock at the time of his termination with the cost of the premium for such benefits paid by Notable, until the earlier to occur of: (i) six months following Dr. Bock’s termination date, or (ii) the date Dr. Bock becomes eligible for medical benefits with another employer. |
The foregoing description of Dr. Bock’s employment agreement is not complete and is subject to and qualified in its entirety by reference to his employment agreement, which is attached hereto as Exhibit 10.1, and incorporated herein by reference.
Joseph Wagner, Ph.D.
Joseph Wagner, Chief Scientific Officer. Dr. Joseph Wagner, age 56, joined Notable in June 2020 and has more than 20 years of experience developing therapeutics and diagnostics. Dr. Wagner previously served as the Executive Director of University of California Drug Discovery Consortium from September 2017 to February 2020 and was an independent consultant from March 2020 to May 2020, prior to joining Notable. A pharmacologist by training, Dr. Wagner has spent the majority of his biotechnology industry career focused on building teams and organizations primarily focused on developing small molecule and biologic therapeutics from bench studies through to Phase 2 clinical trials at companies including BriaCell Therapeutics, OncoCyte and Cell Targeting, where he served in CEO/CTO roles. Dr. Wagner has led programs in a variety of indications, including oncology, neurology and cardiovascular disease, and has led bioinformatic efforts to develop novel targets, biomarkers and companion diagnostics. Dr. Wagner received his bachelor’s in neuroscience from the University of Rochester and his Ph.D. in pharmacology from Duke University.
Pursuant to his employment agreement, dated June 15, 2020 (the “Wagner Agreement”), Dr. Wagner is entitled to an annual base salary of $300,000 (which was most recently increased to $339,900 by Notable’s board of directors on July 28, 2022), payable in substantially equal periodic installments in accordance with Notable’s payroll practices. In addition, Dr. Wagner is entitled to receive, subject to employment by Notable on the applicable date of bonus payout, an annual target discretionary bonus equal to 25% of his annual base salary, payable at the discretion of the board of directors, based upon metrics to be mutually agreed upon by Dr. Wagner and Notable’s Chief Executive Officer. Pursuant to the Wagner Agreement, Dr. Wagner is also eligible to receive healthcare benefits as may be provided from time to time by Notable to its employees generally, and to receive paid time off annually in accordance with Notable’s policies in effect from time to time. Additionally, the Wagner Agreement provides that Dr. Wagner is eligible to receive reimbursement for ordinary and reasonable out-of-pocket business expenses incurred by him in furtherance of Notable’s business.
Under the terms of the Wagner Agreement, in the event that Dr. Wagner’s employment is terminated other than for Cause, or Dr. Wagner terminates his employment for Good Reason (each as defined in the Wagner Agreement), then, in addition to the accrued obligations and the bonus (if deemed earned), Dr. Wagner shall receive the following, subject to his execution of a release:
| (1) | Payment of a lump sum amount equal to three months of Dr. Wagner’s then-current base salary, less all customary and required taxes and employment-related deductions, paid on the first payroll date following the date on which the release becomes effective and non-revocable, but not after 70 days following the effective date of termination from employment. | |
| (2) | Notable shall continue to provide Dr. Wagner medical insurance coverage to the same extent that such insurance continues to be provided to Dr. Wagner at the time of his termination with the cost of the premium for such benefits paid by Notable, until the earlier to occur of: (i) three months following Dr. Wagner’s termination date, or (ii) the date Dr. Wagner becomes eligible for medical benefits with another employer. | |
| (3) | Dr. Wagner’s equity interests (if any) shall accelerate in an amount equal to the amount that would have vested for a period of 12 months following the date of Dr. Wagner’s termination and such amounts shall be deemed fully vested as of such date. In addition, Dr. Wagner’s time to exercise any time-based equity interests shall be extended for 12 months following his date of termination. |
The Wagner Agreement further provides that, in the event that his employment is terminated by Notable without Cause or by him for Good Reason, and such termination occurs within the 12-month period following a Change of Control (as defined in the Wagner Agreement), or 90 days preceding the earlier to occur of a Change of Control or the execution of a definitive agreement the consummation of which would result in a Change of Control, then in lieu of the payments and benefits described above, Dr. Wagner shall be entitled to receive, subject to his execution and non-revocation of a release in favor of Notable, (i) a lump sum cash payment equal to three months of his then current base salary, (ii) full acceleration of all time-based stock options and other time-based stock-based awards held by Dr. Wagner, and the time Dr. Wagner has to exercise any time-based equity interests shall be extended for 12 months following his date of termination, and (iii) Notable shall continue to provide Executive medical insurance coverage to the same extent that such insurance continues to be provided to Dr. Wagner at the time of Dr Wagner’s termination with the cost of the premium for such benefits paid by Notable, until the earlier to occur of: (i) three months following Dr. Wagner’s termination date, or (ii) the date Dr. Wagner becomes eligible for medical benefits with another employer.
The foregoing description of Dr. Wagner’s employment agreement is not complete and is subject to and qualified in its entirety by reference to his employment agreement, which is attached hereto as Exhibit 10.2, and incorporated herein by reference.
Scott A. McPherson
Scott A. McPherson, Chief Financial Officer. Mr. McPherson, age 61, has served as Notable’s Chief Financial Officer since March 2023. Mr. McPherson previously served as Chief Financial Officer of Rego Payment Architectures, Inc., an OTC-listed provider of financial services software, from July 2015 until August 2022. Mr. McPherson was hired as a part-time controller for US Environmental, Inc. in September 2019 and upon the death of the owner has served as interim Chief Executive Officer since March 2022. US Environmental, Inc. is an environmental services company primarily involved in the transportation and disposal of environmental waste. Mr. McPherson also served as the Chief Financial Officer of VerifyMe, Inc. from December 1, 2014 through July 15, 2017 and from December 2012 to October 2013. VerifyMe, Inc. is a public company that provides high-tech solutions in the field of authenticating people and products. Mr. McPherson from April 2015 to July 2015 was the Chief Executive Officer and was the Chief Financial Officer of CannLabs, Inc. from June 2014 to July 2015. Prior to that, Mr. McPherson served as the Chief Financial Officer of Rego Payment Architectures, Inc., from August 2010 through November 2012. Mr. McPherson formed McPherson, CPA, PLLC in January 2005, which he continues to manage today. The firm performs accounting, tax and litigation support services for numerous clients in various industries. The firm has successfully assisted small public companies by developing procedures for them to implement, in order to initially comply and maintain compliance with the Sarbanes-Oxley Act. All of these services are conducted under the direction of Mr. McPherson.
Scott A. McPherson is acting as Notable’s Chief Financial Officer, pursuant to the engagement letter, dated March 1, 2023 (the “McPherson Agreement”), with McPherson CPA, PLLC pursuant to which it is entitled to an initial retainer of $5,000 and a monthly fee (based on time spent at a rate of $300 per hour, plus out-of-pocket costs), which will be payable by Notable to McPherson CPA, PLLC on presentment of such billed fees in accordance with Notable’s practices. Mr. McPherson is individual responsible for supervising and conducting the engagement in connection with the McPherson Agreement.
The foregoing description of Mr. McPherson’s engagement letter is not complete and is subject to and qualified in its entirety by reference to the McPherson Agreement, which is attached hereto as Exhibit 10.3, and incorporated herein by reference.
Indemnification Agreements
On October 16, 2023, the Company entered into indemnification agreements with each of its directors and executive officers, Thomas Bock, M.D., Scott McPherson, Joseph Wagner, Ph.D., Thomas Dubin, Thomas Graney, Peter Feinberg, Michele Galen, Michael Rice and Tuomo Pätsi. Pursuant to the indemnification agreements, the Company has agreed to indemnify and hold harmless these directors and officers to the fullest extent permitted by the Israeli Companies Law, 5759 - 1999, as amended. The agreements generally cover expenses that a director or officer incurs or amounts that a director or officer becomes obligated to pay in connection with any proceeding in any way connected with, resulting from or relating to his or her service as a current or former director, officer, employee or agent of the Company or any direct or indirect subsidiary of the Company. The agreements also provide for the advancement of expenses to the directors and officers subject to specified conditions. There are certain exceptions to the Company’s obligation to indemnify the directors and officers, including with respect a breach of the duty of fidelity, except to the extent permitted by law, a violation of the indemnitee’s duty of care towards the Company, which was committed intentionally or recklessly, an act committed with the intention to realize a personal unlawful profit, a fine or monetary penalty imposed on the indemnitee, provided that such fine or monetary penalty have not been imposed pursuant to the conviction for a crime which does not require proof of criminal intent, a counterclaim made by the Company or in its name in connection with a claim against the Company filed by the indemnitee, other than by way of defense or by way of third party notice in connection with claim brought against the indemnitee, or in specific cases in which the Company’s board of directors has approved the initiation or bringing of such suit by the indemnitee, which approval shall not be unreasonably withheld, or any act, event or circumstance with respect to which it is prohibited to do so under applicable law.
The foregoing description of the indemnification agreements is not complete and is subject to and qualified in its entirety by reference to the form of indemnification agreement, which is attached hereto as Exhibit 10.4, and incorporated herein by reference.
Board Committees
Immediately following the consummation of the Merger, the Company has three standing committees to assist in fulfilling its responsibilities to the Company and its shareholders: the Audit Committee, the Compensation Committee, and the Nominating and Governance Committee. The committees of the board of directors will operate pursuant to and apply the Company’s written charters and corporate governance policies currently in place. Thereafter, the Company’s board of directors intends to review the written charters and corporation governance policies of the Company and, in the discretion of the board of directors, adopt or amend such charters and policies, as may be necessary.
The Company’s board of directors has an Audit Committee which will supervise the audit and financial procedures of the Company and will be responsible for the selection of the Company’s independent registered public accounting firm, subject to the approval of the Company’s board of directors and shareholders. Upon closing of the Merger, the members of the Audit Committee are Thomas Graney (Chair), Peter Feinberg and Michael Rice. The Company’s board of directors has determined that each member of the Audit Committee is an “independent director” within the meaning of the applicable Nasdaq Listing Rules and applicable SEC rules under the Exchange Act.
The Company’s board of directors also has a Compensation Committee, which will be responsible for, among other things, assisting the Company’s board of directors in overseeing the Company’s executive compensation strategy and reviewing and approving the compensation of its executive officers and for the administration of the Company’s employee benefit plans. The Compensation Committee will also be responsible for reviewing and approving the compensation of the Company’s directors. Except as otherwise specified, the executive officers do not determine executive or director compensation but provide information and recommendations to the Compensation Committee upon its request. Upon closing of the Merger, the members of the Compensation Committee are Thomas Dubin (Chair), Michele Galen and Michael Rice. The Company’s board of directors has determined that each member of the Compensation Committee is an “independent director” within the meaning of the applicable Nasdaq Listing Rules and applicable SEC rules under the Exchange Act.
The Company’s board of directors also has a Nominating and Governance Committee. Upon closing of the Merger, the members of the Nominating and Governance Committee are Tuomo Pätsi (Chair), Peter Feinberg and Thomas Bock. The Nominating and Governance Committee will be responsible for recommending to the independent directors the nominees for election to the Company’s board of directors at the annual meeting of the shareholders. The Company’s board of directors has determined that each of Mr. Pätsi and Mr. Feinberg are an “independent director” within the meaning of the applicable Nasdaq Listing Rules. Mr. Bock is not an independent director within the meaning of the applicable NASDAQ Listing Rules. In accordance with applicable Nasdaq Listing Rules, the nominees for director will be selected as nominees by vote of a majority of the independent directors serving on the Nominating and Governance Committee.
Termination of Named Executive Officers
Immediately prior to the Closing, each of Dror Harats and Sam Backenroth were terminated without cause by the Company and are entitled to certain severance payments and benefits and certain of their outstanding options will automatically vest in full as described in Prof. Harats’s and Mr. Backenroth’s respective employment agreements. For additional information regarding these payments, please refer to “The Merger — Interests of the VBL Directors and Executive Officers in the Merger” on pages 125-127 of the Proxy Statement.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The information set forth in Item 3.03 of this Current Report on Form 8-K is hereby incorporated by reference.
Item 9.01. Financial Statements and Exhibits.
(a) Financial Statements of Businesses or Funds Acquired
Notable’s audited financial statements as of and for the years ended December 31, 2022 and 2021 and its unaudited financial statements as of September 30, 2023 and for the three and nine months ended September 30, 2023 and 2022 will be provided by amendment to this Form 8-K in accordance with the instructions to Form 8-K.
(b) Pro Forma Financial Information
Unaudited pro forma condensed combined financial statements of Notable for the year ended December 31, 2022 and as of and for the nine months ended September 30, 2023 will be provided by amendment to this Form 8-K in accordance with the instructions to Form 8-K.
(d) Exhibits
| * | Management contract or compensatory plan or arrangement. |
| + | Certain schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished to the SEC upon request, provided, however, that the Company may request confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any schedule so furnished. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| NOTABLE LABS, LTD. | |||
| Date: | October 16, 2023 | By: | /s/ Dr. Thomas A. Bock |
| Name: | Dr. Thomas A. Bock |
||
| Title: | Chief Executive Officer |
Exhibit 3.1
Changes to the Articles of Association (the “Articles”), approved by the shareholders on October 12, 2023
| 1. | The definition of the “Company” as defined in Article 1.1 of the Articles shall be changed such that the Company name in the Articles shall be “Notable Labs, Ltd.” or “נוטבל לאבס, בע”מ”. |
| 2. | Article 6 of the Articles shall be amended and restated in its entirety with the following: |
| The share capital of the Company shall consist of NIS 12,000,000 divided into 34,285,714 Ordinary Shares, of a nominal value of NIS 0.35 each (the “Ordinary Shares”). | |
| 3. | Article 58 of the Articles shall be amended and restated in its entirety with the following: |
| No business shall be conducted at a General Meeting unless a quorum is present, and no resolution shall be passed unless a quorum is present at the time the resolution is voted on. Except in cases where it is otherwise stipulated, a quorum shall be constituted when there are personally present, or represented by proxy, at least one (1) Shareholder who hold or represents at least 1/3 (33.33%) of the voting rights of the Company. |
Exhibit 10.4
Release and Indemnification Agreement
This Release and Indemnification Agreement (this “Agreement”) is made as of October 16, 2023 by and between Notable Labs, Ltd. (the “Company”) and ____________ (“Indemnitee”).
The Company desires to attract and retain qualified Office Holders (as such term is defined in the Israeli Companies Law, 5759 - 1999, as amended from time to time (the “Companies Law”), and in order to do so, it is necessary to provide them with adequate protection against risks of claims and actions against them arising out of their service to, and activities on behalf of, the Company. The Articles of Association of the Company authorize the Company to indemnify and advance expenses to its Office Holders and provide for insurance and exculpation to its Office Holders, in each case, to the fullest extent permitted by applicable law. The Company has therefor determined that it is in the best interest of the Company that, in order to induce and retain such qualified persons, it is reasonable, prudent and necessary for the Company to contractually obligate itself to indemnify Indemnitee upon certain occurrences and to the fullest extent permitted by applicable law, and to provide for insurance and exempt Indemnitee from liability, all under the terms of this Agreement.
Now, Therefore, the parties agree as follows:
| 1. | Contractual Indemnity. The company hereby undertakes, subject to the limitations set forth in this Agreement: |
To indemnify Indemnitee to the greatest extent possible under applicable law against any liability or expense in respect of the following acts or omissions of Indemnitee, either prior to or after the date hereof, in his capacity as an Office Holder, including, without limitation, as a director, officer, employee, agent or fiduciary of the Company: (i) a financial liability imposed on Indemnitee in favor of another person (as such term is defined below) pursuant to a judgment, including a settlement judgment or an arbitrator’s award approved by a court; (ii) reasonable Expenses (as defined below) expended or incurred by Indemnitee as a result of (a) an investigation or any proceeding instituted against the Indemnitee by an authority that is authorized to conduct an investigation or proceeding, and that was concluded without the filing of an indictment against the Indemnitee and without imposing on the Indemnitee a financial liability in lieu of a criminal proceeding, or that was concluded without the filing of an indictment against the Indemnitee but imposing a financial liability in lieu of a criminal proceeding in an offence that does not require proof of criminal intent (mens rea), or (b) in connection with a financial sanction. In this section “conclusion of a proceeding without the filing of an indictment in a matter in which a criminal investigation has been instigated” and “financial liability in lieu of a criminal proceeding” shall have the meaning assigned to such terms under the Companies Law, and the term “financial sanction” shall mean such term as referred to in Section 260(a)(1a) of the Companies Law; (iii) reasonable litigation Expenses (as defined below) expended or incurred by Indemnitee or charged to Indemnitee by a court, in a proceeding instituted against Indemnitee by the Company or on its behalf or by another person, or in a criminal charge from which Indemnitee was acquitted or in which Indemnitee was convicted of an offense which does not require proof of criminal intent (mens rea); and (iv) any other event, occurrence or circumstances in respect of which the Company may lawfully indemnify an Office Holder of the Company (including, without limitation, indemnification with respect to the matters referred to under Section 56h(b)(1) of the Israeli Securities Law 5728-1968, as amended (the “Securities Law”)) (collectively referred to hereinafter as a “Claim”).
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For the purposes of this Section 1, the term “person” shall mean and include, without limitation, a natural person, firm, partnership, joint venture, trust, company, corporation, limited liability entity, unincorporated organization, estate, government, municipality, or any political, governmental, regulatory or similar agency or body.
For the purpose of this Agreement, “Expenses” shall include, without limitation, attorneys’ fees and all other costs, expenses and obligations paid or incurred by Indemnitee in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in any claim relating to any matter for which indemnification hereunder may be provided. Expenses shall be considered paid or incurred by Indemnitee at such time as Indemnitee is required to pay or incur such cost or expenses, including upon receipt of an invoice or payment demand. The Company shall pay the Expenses in accordance with the provisions of Section 3 below.
The above indemnification will also apply to any liability or expense imposed on Indemnitee due to or in connection with an action performed by the Indemnitee, either prior to or after the date hereof, in his capacity as an Office Holder, including, without limitation, as a director, officer, employee, agent or fiduciary of any other company, corporation, collaboration, partnership, joint venture, trust or other enterprise, controlled, directly or indirectly, by the Company (a “Subsidiary”) or not controlled by the Company but where Indemnitee’s appointment results from the Company’s holdings or in which Indemnitee serves at any time at the request of the Company (“Affiliate”). Notwithstanding the above, in the event that the Office Holder is the beneficiary of an indemnification undertaking provided by a Subsidiary or Affiliate, then the indemnification obligations of the Company hereunder with respect to such capacities shall only apply to the extent that the indemnification by such subsidiary or Affiliate does not actually fully cover the indemnifiable liabilities and expenses relating thereto.
| 2. | Limitations on Indemnity. |
| 2.1. | Subject to Sections 2.2 - 2.3 below, the Company undertakes to indemnify Indemnitee in accordance with the terms of this Agreement up to a total amount of US$25,000,000 (Twenty-Five Million United States Dollars), under the circumstances of indemnification of Indemnitee as set forth in this Agreement. |
| 2.2. | Notwithstanding anything herein to the contrary, the indemnification pursuant to Section 1(i) above shall be limited to matters that result from or are connected or otherwise related to events or circumstances set forth in Schedule A hereto, which are deemed by the Board of Directors of the Company (the “Board”), based on the current activities of the Company, to be categories of events foreseeable as of the date hereof. |
| 2.3. | The maximum amount of indemnification payable by the Company under Section 1 above with respect to all persons with respect to whom the Company undertook to indemnify under agreements substantially similar to this Agreement (the “Indemnifiable Persons”), for the events set forth in Section 1 and under the categories set forth in Schedule A shall be as set forth in Schedule A hereto (the “Limit Amount”). If the applicable Limit Amount is insufficient to cover all the indemnity amounts payable with respect to all Indemnifiable Persons, then such amount shall be allocated to such Indemnifiable Persons with respect to each indemnifiable event pro rata according to the percentage of their culpability in such indemnifiable event, as finally determined by a court in the relevant claim, or, absent such determination or in the event such persons are parties to different claims, based on an equal pro rata allocation among the Indemnifiable Persons who are indemnified with respect to such indemnifiable event. The Limit Amount payable by the Company as set forth in Schedule A is deemed by the Company to be reasonable in light of the circumstances. |
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| 2.4. | The indemnification provided under Section 1 above shall not be subject to the limitations imposed by Sections 2.2 - 2.3 above and/or Schedule A if and to the extent such limits are no longer required by the Companies Law. |
| 2.5. | Notwithstanding anything to the contrary in this Agreement, the Company shall not indemnify or advance Expenses to Indemnitee with respect to, and Indemnitee shall not be entitled to indemnification under Section 1, for any amount imposed on Indemnitee consequent to any of the following: (i) a breach of the duty of fidelity by Indemnitee, except to the extent permitted by law; or (ii) a violation of the Indemnitee’s duty of care towards the Company, which was committed intentionally or recklessly; or (iii) an act committed with the intention to realize a personal unlawful profit; or (iv) a fine or monetary penalty imposed on Indemnitee, provided that such fine or monetary penalty have not been imposed pursuant to the conviction for a crime which does not require proof of criminal intent (mens rea); or (v) a counterclaim made by the Company or in its name in connection with a claim against the Company filed by Indemnitee, other than by way of defense or by way of third party notice in connection with claim brought against the Indemnitee, or in specific cases in which the Board has approved the initiation or bringing of such suit by Indemnitee, which approval shall not be unreasonably withheld; or (vi) any act, event or circumstance with respect to which it is prohibited to do so under applicable law. |
| 3. | Expenses; Indemnification Procedure. The Company shall pay Indemnitee all Expenses incurred by Indemnitee in connection with a Claim with respect to which Indemnitee is entitled to be indemnified under Sections 1-2 above, on the date on which such amounts are first payable (“Time of Indebtedness”), and with respect to items mentioned in Section 1(ii) above, even prior to a court decision, provided, however, that such payments shall be made by the Company directly to the Indemnitee’s legal or other applicable advisors, as soon as practicable but in any event no later than fifteen (15) days after following delivery of a written request therefor by Indemnitee to the Company. Any such payment shall be deemed to constitute indemnification hereunder. Advances given to cover legal expenses in criminal proceedings will be repaid by Indemnitee to the Company, if Indemnitee is found guilty of a crime that requires proof of criminal intent (mens rea). Other advances will be promptly repaid by Indemnitee to the Company if it is determined by the Company, based on advice from its legal counsel, that Indemnitee is not entitled to such payments. In the event that Indemnitee disputes the Company’s determination, Indemnitee’s obligation to repay the Company shall be postponed until such dispute is resolved in a manner that is final and unappealable. Indemnitee’s obligation to repay to the Company for any Expenses or other sums paid hereunder shall be deemed a loan given to Indemnitee by the Company subject to the minimum interest rate prescribed by Section 3(9) of the Income Tax Ordinance [New Version], 1961, or any other legislation replacing it, which is not considered a taxable benefit. As part of the aforementioned undertaking, the Company will make available to Indemnitee any security or guarantee that Indemnitee may be required to post in accordance with an interim decision given by a court or an arbitrator, including for the purpose of substituting liens imposed on Indemnitee’s assets. |
| 4. | Notification and Defense of Claim. Indemnitee shall notify the Company of the commencement of any action, suit or proceeding, and of the receipt of any notice or threat that any such legal proceeding has been or shall or may be initiated against Indemnitee (including any proceedings by or against the Company and any subsidiary thereof), promptly upon Indemnitee first becoming so aware. The omission so to notify the Company will not relieve the Company from its obligations under this Agreement unless and to the extent that such failure or delay to provide notice materially and adversely prejudices the Company or the Company’s ability to defend such action. With respect to any Claim brought against Indemnitee in respect of which indemnity is sought under this Agreement: |
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| 4.1. | The Company will be entitled to participate therein at its own expense or to assume the defense thereof and to employ counsel which is reasonably reputable with experience in the relevant field. Indemnitee shall have the right to employ his or her own counsel in connection with any such Claim and to participate in the defense thereof, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Indemnitee unless: (i) the employment of counsel by Indemnitee has been authorized in writing by the Company; or (ii) the Company shall not have assumed the defense of the Claim; or (ii) the named parties to any such action (including any impleaded parties) include both Indemnitee and the Company, and Indemnitee shall have reasonably concluded that joint representation is inappropriate under applicable standards of professional conduct due to a conflict of interest between Indemnitee and the Company, in either of which events set forth in clauses (i)- and (ii) above reasonable fees and expenses of such counsel to Indemnitee shall be borne by the Company. The Company shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Company or as to which the Indemnitee reasonably makes the claim specified in (ii) above. The counsel appointed by the Company shall act and shall owe its duty of loyalty to the Indemnitee and to the Company. |
| 4.2. | The Company shall have the right to conduct the defense (whether before a court or as a part of a compromise arrangement), as it deems fit in its sole discretion (provided that the Company shall conduct the defense in good faith and in a diligent manner), including the right to settle or compromise any claim or to consent to the entry of any judgment against Indemnitee without the consent of the Indemnitee, provided that, the amount of such settlement, compromise or judgment does not exceed the Limit Amount (if applicable) and is indemnifiable pursuant to this Agreement and/or applicable law, and any such settlement, compromise or judgment does not impose any penalty or limitation on Indemnitee without the Indemnitee’s prior written consent. The Indemnitee’s consent shall not be required if the settlement includes a complete release of Indemnitee, does not contain any admission of wrong-doing by Indemnitee, and includes monetary sanctions only as provided above. In the case of criminal proceedings, the Company will not have the right to plead guilty or agree to a plea-bargain in the Indemnitee’s name without the Indemnitee’s prior written consent. |
| 4.3. | The Company shall not be liable to indemnify Indemnitee for any amounts or expenses paid in connection with a settlement of any action, claim or otherwise effected without the Company’s written consent. |
| 4.4. | Neither the Company nor Indemnitee will unreasonably withhold or delay their consent to any proposed settlement. |
| 4.5. | Indemnitee shall fully cooperate with the Company and shall give the Company all information and cooperation, as well as access to documents, files and to his or her advisors and representatives as shall be within Indemnitee’s power, as may be required by the Company. |
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| 5. | Insurance. Without derogating from the Company’s obligations to indemnify Indemnitee as provided in this Agreement, the Company undertakes that, subject to the mandatory limitations under applicable law, as long as it may be obligated to provide indemnification and advance Expenses under this Agreement, the Company will purchase and maintain in effect directors and officers liability insurance, which will include coverage for the benefit of the Indemnitee, providing coverage in amounts as reasonably determined by the Board; provided that, the Company shall have no obligation to obtain or maintain directors and officers insurance policy if the Company determines in good faith that such insurance is not reasonably available, the premium costs for such insurance are disproportionate to the amount of coverage provided, or the coverage provided by such insurance is so limited by exclusions that it provides an insufficient benefit. The Company hereby undertakes to notify the Indemnitee thirty (30) days prior to the expiration or termination of the directors and officers’ liability insurance. |
| 6. | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the expenses actually or reasonably incurred by Indemnitee in connection with a Claim or Claims, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such expenses to which Indemnitee is entitled. |
| 7. | Other Indemnification. The Company hereby acknowledges that Indemnitee have now or may have in the future certain rights to indemnification, advancement of expenses and/or insurance provided by third parties, including without limitation any investor in the Company’s shares on behalf of which Indemnitee serves as a director in the Company (the “Third Party Indemnitors”), and the Company hereby agrees (a) that the Company is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Third Party Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary), and (b) that it irrevocably waives, relinquishes and releases the Third Party Indemnitors from any and all claims against the Third Party Indemnitors for contribution, subrogation or any other recovery of any kind of respect of the subject matters of this Agreement. Without altering or expanding any of the Company’s indemnification obligations hereunder, the Company further agrees that no advancement or payment by the Third Party Indemnitors on Indemnitee’s behalf with respect to any claim for which Indemnitee has sought indemnification from the Company shall affect the foregoing and the Third Party Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of Indemnitee’s rights of recovery against the Company. The Company and Indemnitee agree that the Third Party Indemnitors are express third party beneficiaries of the terms of this Section 7. |
| 8. | Reimbursement. Without derogating from the generality of the above, the Company shall not be liable under this Agreement to make any payment in connection with any indemnifiable event to the extent Indemnitee has otherwise actually received payment under any insurance policy or otherwise (without any obligation of Indemnitee to repay any such amount) of the amounts otherwise indemnifiable hereunder. |
Any amounts paid to Indemnitee under any insurance policy or otherwise after the Company has indemnified Indemnitee for such liability or Expense shall be repaid to the Company promptly upon receipt by Indemnitee.
| 9. | Exemption. The Company hereby exempts the Office Holder, and hereby releases the Office Holder in advance, to the fullest extent permitted by law, from any liability to the Company for any damage caused as a result of a breach of his or her duty of care to the Company (within the meaning of such terms under Sections 252 and 253 of the Companies Law), provided that in no event shall he or her be exempt with respect to any actions listed in Section 2.5 above or in a case of breach of the duty of care towards the Company in a distribution (as such term is defined in the Companies Law). |
| 10. | Post Factum Indemnification. Nothing in this Agreement shall limit the Company’s right, upon its sole discretion, subject to applicable law and the Articles of Association of the Company, to indemnify the Indemnitee, post factum, for any and all amounts or events. |
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| 11. | Severability. Each of the provisions of this Agreement is a separate and distinct agreement and independent of the others, so that if any provision hereof shall be held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof. |
| 12. | Termination of Services. For the avoidance of doubt, the Company will indemnify Indemnitee even if at the relevant Time of Indebtedness Indemnitee is no longer an Office Holder of the Company or of a Subsidiary or an Affiliate, as applicable, provided, that the obligations are in respect of actions taken by the Indemnitee while serving as an Office Holder as aforesaid, and in such capacity. |
| 13. | Further Assurances. The parties will do, execute and deliver, or will cause to be done, executed and delivered, all such further acts, documents and things as may be reasonably required for the purpose of giving effect to this Agreement and the transactions contemplated hereby. Notwithstanding anything to the contrary, if for the validation of any of the undertakings in this Agreement any act, resolution, approval or other procedure is required, the Company undertakes to cause them to be done or adopted in a manner which will enable the Company to fulfill all its undertakings as aforesaid. |
| 14. | Entire Agreements; Amendments. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes and cancels all prior agreements, proposals, representations and communications between the parties regarding the subject matter hereof. No amendment, modification, termination or cancellation of this Agreement shall be effective unless it is in writing and signed by the parties hereto. |
| 15. | Binding Effect; No Assignment; No Third-Party Rights. This Agreement shall be binding upon Indemnitee and the Company, their successors and assigns, and shall inure to the benefit of Indemnitee, his or her heirs, personal representatives and assigns and to the benefit of the Company, its successors and assigns. Indemnitee shall not assign or otherwise transfer his or her rights or obligations under this Agreement and any attempt to assign or transfer such rights or obligations shall be deemed null and void. In the event of a merger or consolidation of the Company or a transfer or disposition of all or substantially all of the business or assets of the Company, the Indemnitee shall be entitled to the same indemnification and insurance provisions as the most favorable indemnification and insurance provisions afforded to the then-serving Office Holders of the Company. In the event that in connection with such transaction the Company purchases a directors and officers’ “tail” or “run-off” policy for the benefit of its then serving Office Holders, then such policy shall cover Indemnitee and such coverage shall be deemed to be in satisfaction of the insurance requirements under this Agreement. Nothing herein shall be deemed to create or imply an obligation for the benefit of a third party. Without limitation of the foregoing, nothing herein shall be deemed to create any right of any insurer that provides directors and officers’ liability insurance, to claim, on behalf of Indemnitee, any rights hereunder. |
| 16. | Governing Law; Jurisdiction. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Israel, without regard to their rules of conflict of laws, and any dispute arising from or in connection with this Agreement is hereby submitted to the sole and exclusive jurisdiction of the competent courts in Tel Aviv, Israel. |
[Signature Page to Notable Labs, Ltd. Release and Indemnification Agreement]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
| NOTABLE LABS, LTD. | ||||
| By: |
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Signature: |
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| Name: | Dr. Thomas Bock | |||
| Title: |
Chief Executive Officer |
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Schedule A
All references in this schedule to the “Company” shall be deemed to refer to a Subsidiary or Affiliate (such terms shall have herein the meaning assigned to it in the Companies Law – 1999 (the “Companies Law”) as well, to the extent that the Office Holder’s service as an officer, director, employee or board observer of the Subsidiary or Affiliate is at the request of the Company in the circumstances described in Section 1 to the Agreement to which this Schedule is attached (the “Agreement”). Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Agreement.
The maximum amount of indemnification payable by the Company under Section 1(i) of the Agreement to which this Schedule is attached, with respect to all Indemnifiable Persons thereunder, for each specific event listed in the categories below in this Schedule A, shall be equal to the amount specified opposite each category below.
| CATEGORY OF INDEMNIFIABLE EVENT | LIMIT
AMOUNT PER EACH SPECIFIC EVENT WITHIN THIS CATEGORY OF EVENTS |
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| 1. | The offering of securities by the Company and/or by a shareholder to the public and/or to private investors or the offer by the Company to purchase securities from the public and/or from private investors or other holders pursuant to a prospectus, agreement, notice, report, tender and/or other proceeding, whether in Israel or abroad. |
$ (the “Maximum Amount”) |
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| 2. | Occurrences in connection with investments the Company makes in other corporations whether before and/or after the investment is made, entering into the transaction, the execution, development and monitoring thereof, including actions taken by an Office Holder in the name of the Company as an Office Holder (such term shall have herein the meaning assigned to it in the Companies Law) and/or board observer of the corporation which is the subject of the transaction and the like. | The Maximum Amount | |
| 3. | The sale, purchase and holding of negotiable securities or other investments for or in the name of the Company. | The Maximum Amount | |
| 4. | Events in connection with change in ownership or in the structure of the Company, its reorganization, dissolution, division, change in capital. | The Maximum Amount | |
| 5. | Actions in connection with the merger of the Company with or into another entity. | The Maximum Amount | |
| 6. | Actions in connection with the sale or acquisition of the operations and/or business and/or assets, or part thereof, of the Company. | The Maximum Amount |
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| 7. | Without derogating from the generality of the above, any transaction not in the ordinary course of business of the Company, including the purchase, sale or lease of companies, legal entities or assets, and the division or consolidation thereof. | The Maximum Amount | |
| 8. | Actions concerning the approval of transactions of the Company with officers and/or directors and/or holders of controlling interests in the Company, and any other transactions referred to in Section 270 of the Companies Law. | The Maximum Amount | |
| 9. | Claims in connection with labor relations and/or employment matters in the Company with and/or by employees of the Company, and in connection with trade relations of the Company and business relations between the Company and its employees, independent contractors, customers, suppliers and various service providers. | The Maximum Amount | |
| 10. | Actions in connection with or liabilities arising from the development, testing and/or manufacturing of products developed or services provided by the Company, including the performance of pre-clinical and clinical trials on such products, whether performed by the Company or by third parties on behalf of the Company, and/or in connection with the distribution, sale, marketing license or use of such products or services, including without limitation in connection with professional liability and product liability claims and/or in connection with the procedure of obtaining regulatory approvals regarding such products, whether in Israel or abroad. | The Maximum Amount | |
| 11. | Actions taken, and liabilities incurred, related to or in connection with the intellectual property of the Company and its protection, including without limitation violation, infringement and other misuse of copyrights, patents, designs, trade secrets and any intellectual property rights of the Company, the registration or assertion of rights to intellectual property and the defense of claims related to intellectual property, including any assertion that the Company’s products infringe on the intellectual property rights or constitute a misappropriation of any third party’s trade secrets. | The Maximum Amount | |
| 12. | Violation, infringement and other misuse of copyrights, patents, designs, trade secrets and any other intellectual property rights, breach of confidentiality obligations, claims or demands in regard of invasion of privacy including with respect to databases, claims, demands or acts in connection with slander and defamation, and claims in connection with publishing or providing any information, including any filings with any governmental authorities, whether or not required under any applicable laws. | The Maximum Amount | |
| 13. | Actions taken pursuant to or in accordance with the policies and procedures of the Company (including tax policies and procedures), whether such policies and procedures are published or not. | The Maximum Amount |
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| 14. | Approval of corporate actions, including the approval of the acts of the Company’s management, their guidance and their supervision; Participation and/or non-participation at the meetings of the Board of Directors of the Company, bona fide expression of opinion and/or voting and/or abstention from voting at the Company’s Board of Directors meetings. | The Maximum Amount | |
| 15. | Claims of failure to exercise business judgment and a reasonable level of proficiency, expertise and care in regard of the Company’s business; An announcement, a statement, including a position taken, or an opinion or representation made in good faith by the Office Holder in the course of his or her duties and in conjunction with his or her duties, whether in public or in private, including during a meeting of the Board of Directors of the Company or any of the committees of the Board of Directors of the Company. | The Maximum Amount | |
| 16. | Violations of laws requiring the Company to obtain regulatory and governmental licenses, permits and authorizations in any jurisdiction. | The Maximum Amount | |
| 17. | Any administrative, regulatory or judicial actions, orders, decrees, suits, demands, demand letters, directives, claims, liens, investigations, proceedings or notices of noncompliance or violation by any governmental entity or other person alleging the failure to comply with any statute, law, ordinance, rule, regulation, order or decree of any governmental entity applicable to the Company or any of its businesses, assets or operations, or the terms and conditions of any operating certificate or licensing agreement. | The Maximum Amount | |
| 18. | Claims in connection with publishing or providing any information, including any filings with governmental authorities, on behalf of the Company in the circumstances required under applicable laws. | The Maximum Amount | |
| 19. | Any claim or demand made under any securities laws of any jurisdiction or by reference thereto, including without limitation fraudulent disclosure claims, failure to comply with any securities authority or any stock exchange disclosure or other rules, the failure to disclose any information in the manner or time such information is required to be disclosed pursuant to such laws, related to inadequate or improper disclosure of information to shareholders, or prospective shareholders, and any other claims relating to relationships with investors, debt holders, shareholders and the investment community; claims relating to or arising out of financing arrangements, any breach of financial covenants or other obligations towards lenders or debt holders of the Company, class actions, violations of laws requiring the Company to obtain regulatory and governmental licenses, permits and authorizations in any jurisdiction. | The Maximum Amount |
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| 20. | Any claim or demand related to the purchase, holding or disposition of securities of the Company or any other investment activity involving or effected by such securities, including without limitation any offering of securities by the Company to private investors and/or to the public, and listing of such securities, or the offer by the Company to purchase securities from the public and/or from private investors or other holders pursuant to a prospectus, agreements, notices, reports, tenders and/or other proceedings, actions taken in connection with the issuance of any type of securities of Company, including, without limitation, the grant of options to purchase any of the same, and any undertakings, representations, warranties and other obligations related to any such offering, listing or offer or to the Company’s status as a public company or as an issuer of securities. | The Maximum Amount | |
| 21. | Any claim or demand made by any lenders or other creditors or for monies borrowed by, or other indebtedness of, the Company. | The Maximum Amount | |
| 22. | Any claim or demand made directly or indirectly in connection with complete or partial failure, by the Company, or their respective directors, officers and employees, to pay, report, keep applicable records or otherwise, of any federal, state, county, local, municipal, city or foreign taxes or other mandatory payments of any nature whatsoever, including, without limitation, income, sales, use, transfer, excise, value added, registration, severance, stamp, occupation, customs, duties, real property, personal property, capital stock, social security, unemployment, disability, payroll or employee withholding or other withholding, including any interest, penalty or addition thereto, whether disputed or not. | The Maximum Amount | |
| 23. | Any claim or demand made by purchasers, holders, lessors or other users of products of the Company, or individuals treated with or exposed to such products, for damages or losses related to such use or treatment. | The Maximum Amount | |
| 24. | Liabilities arising out of advertising, including misrepresentations regarding the Company’s products and unlawful distribution of emails. | The Maximum Amount | |
| 25. | Actions taken in connection with the financial and tax reports of the Company, including without limitation review and approval of the Company’s financial statements, including any action, consent or approval related to or arising from the foregoing, including, without limitations, execution of certificates for the benefit of third parties related to the financial statements. | The Maximum Amount | |
| 26. | Money management, management of the Company’s bank accounts in the areas of activity in which the Company is engaged at banks, including foreign currency deposits, securities, loans and credit facilities, credit cards, bank guarantees, letters of credit, consultation agreements concerning investments including with portfolio managers, hedging transactions, options, futures, and the like. | The Maximum Amount | |
| 27. | All actions, consents and approvals relating to a distribution of dividends, in cash or otherwise. | The Maximum Amount | |
| 28. | Any action or decision in relation to protection of work safety and/or working conditions, including with respect to provisions of the law, procedures or standards as applicable in or outside of Israel with relating to protection of work safety, pertaining, inter alia, to contamination, health protection, production processes, distribution, use, treatment, storage and transportation of certain materials, including in connection with corporal damage, property and environmental damages. | The Maximum Amount | |
| 29. | Claims or demand by any third party suffering any personal injury and/or bodily injury and/or damage to business or personal property or any other type of damage through any act or omission attributed to the Company, or its employees, agents or other persons acting or allegedly acting on their behalf, including, without limitation, failure to make proper safety arrangements for the Company or its employees and liabilities arising from any accidental or continuous damage or harm to the Company’s employees, its contractors, its guests and visitors as a result of an accidental or continuous event, or employment conditions, permanent or temporary, in the Company’s offices. | The Maximum Amount |
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Exhibit 99.1
Notable Labs Closes Merger Transaction With VBL Therapeutics
- Notable expects to initiate trading on the Nasdaq Capital Market under ticker symbol “NTBL” effective at market open on October 17 –
- Aggregate net transaction proceeds expected to fund planned operations into 2025 –
- Completed previously announced $10.3 million private placement with leading healthtech-focused investors, led by Builders VC, B Capital Group, Y Combinator, First Round Capital, and Founders Fund –
- Predictive Precision Medicines Platform (“PPMP”) applied to select and develop two clinical-stage therapeutic candidates with lead programs in acute myeloid leukemia (“AML”); four Phase 2 milestones expected by 1Q 2025 including Phase 2a results for lead asset Volasertib in adult AML in 3Q 2024 –
- Notable’s proprietary PPMP combines multi-dimensional biological assays and machine learning to bio-simulate a patient’s cancer treatment and predict their clinical response to the actual treatment –
- Notable to host conference call tomorrow at 8:30 AM Eastern Time –
FOSTER CITY, Calif., October 16, 2023 – Notable Labs, Inc. (“Notable”), a clinical stage therapeutic platform company developing predictive precision medicines for cancer patients, today announced the completion of its merger transaction with VBL Therapeutics (“VBL”) (Nasdaq: VBLT) and associated financing. The combined company will focus on the advancement of Notable’s proprietary Predictive Precision Medicines Platform (“PPMP”) and therapeutic pipeline focused on cancer patients with high unmet medical needs while completing the development of Volasertib for the treatment of acute myeloid leukemia (“AML”) in platform-predicted responders as the flagship program. The ordinary shares of the combined company (renamed Notable Labs, Ltd.) are expected to commence trading on The Nasdaq Capital Market, on a 1-for-35 reverse split basis, under the ticker symbol “NTBL” and a new CUSIP number at the open of market trading on October 17, 2023.
“This is an important milestone for Notable as we continue to advance the demonstrated value of the PPMP,” said Thomas Bock, M.D., Chief Executive Officer of Notable. “The merger will add additional capital to accelerate our continued development of Volasertib for the treatment of AML in PPMP-predicted responding patients. As a publicly traded company, we will continue to evaluate potential additional programs and assets where PPMP is especially suited for risk-reducing and fast-tracking therapeutic development.”
With the completion of the merger transaction and $10.3 million in new capital invested prior to the closing by a healthtech-focused investor syndicate, including existing Notable stockholders Builders VC, B Capital Group, Y Combinator, First Round Capital, and Founders Fund, the combined company is now expected to be capitalized through multiple clinical milestones with a cash runway into 2025.
Notable’s PPMP combines multi-dimensional biological assays and machine learning to bio-simulate a patient’s cancer treatment and predict their clinical response to the actual treatment. Four clinical validation studies with recognized academic centers have demonstrated PPMP’s high predictive precision in identifying clinical responders before treatment. PPMP has guided Notable in the selection and development of two clinical-stage therapeutic candidates in platform-predicted responding patients with AML.
Notable’s lead asset derived from PPMP is Volasertib, a highly potent PLK1 inhibitor proven to induce cell cycle arrest and apoptosis in various cancer cells. Phase 2a results for Volasertib in adult AML are expected in 3Q 2024. Notable expects to use PPMP to identify, in-license, and fast-track additional undervalued assets as it builds out its development pipeline.
“I want to thank the entire Notable team for their commitment to our mission to save and improve the lives of cancer patients, as well as our shareholders for their support throughout the years,” remarked Prof. Dror Harats, M.D., Chief Executive Officer of VBL Therapeutics.
About the Merger Transaction and Reverse Share Split
The merger agreement was previously announced on February 23, 2023 with unanimous approval by the Board of Directors of each company. Under the terms of the agreement, Notable Labs, Inc. has merged with a wholly-owned Delaware subsidiary of VBL, and stockholders of Notable have received newly issued ordinary shares of VBL. Notable stockholders now own approximately 75% and VBL shareholders own approximately 25% of the combined company, in each case on a fully diluted basis as set forth in the merger agreement. Ordinary shares of the combined company are expected to commence trading on The Nasdaq Capital Market under the ticker symbol “NTBL” at the open of market trading on October 17. The combined company now has approximately 8,936,448 shares outstanding.
On October 16, 2023, prior to the closing of the merger, VBL completed a one-for-35 reverse share split. As a result of the reverse share split, every 35 ordinary shares of VBL, par value NIS 0.01 per share, outstanding immediately prior to the merger were combined and reclassified into one ordinary share, par value NIS 0.35 per share, of VBL. Any fractional shares in connection with the reverse share split were rounded up to the nearest whole share.
JMP Securities, A Citizens Company, served as exclusive financial advisor for Notable and Wiggin and Dana LLP and Meitar Law Offices served as legal counsel to Notable. Chardan served as exclusive financial advisor to VBL Therapeutics and Goodwin Procter LLP and Horn & Co. served as legal counsel to VBL Therapeutics.
Management and Organization
The combined company will operate under the leadership of Notable’s officers, including: Thomas A. Bock, Chief Executive Officer; Scott A. McPherson, Chief Financial Officer; Joseph Wagner, Chief Scientific Officer; and Glenn Michelson, Chief Medical Officer. The board of directors of the combined organization is comprised of seven members, including Thomas Bock, Thomas Dubin, Peter Feinberg, Michele Galen, Thomas Graney and Tuomo Pätsi, and one director from the former VBL board, Michael Rice. The combined company will be headquartered in Foster City, California.
Conference Call and Webcast Information
Notable will host a conference call and webcast tomorrow at 8:30 AM Eastern Time. The call can be accessed by dialing (877) 407-0784 (U.S. and Canada) or (201) 689-8560 (international) and entering passcode 13742176. A link to the live webcast, including the presentation of corporate slides, may be found here. To access a subsequent archived recording, visit the “News & Events” section of the Notable website at www.notablelabs.com.
About Notable Labs, Ltd.
Notable Labs, Ltd. is a clinical-stage platform therapeutics company developing predictive precision medicines for patients with cancer. Through its proprietary Predictive Precision Medicines Platform (PPMP), Notable bio-simulates a cancer treatment and aims to predict whether or not a patient is likely to respond to that specific therapeutic. Notable’s PPMP is designed to identify and select clinically responsive patients prior to their treatment and thus fast-track clinical development in this patient population. By continually advancing and expanding the reach of the PPMP across diseases and predicted medical outcomes, Notable aims to be the leader in precision medicine and revolutionize the way in which patients seek and receive treatments that work best for them – patient by patient and cancer by cancer. Notable believes it has created a targeted and de-risked in-licensing strategy to deliver a product’s medical impact and commercial value faster, higher, and with a greater likelihood of success than traditional drug development. By transforming historical standards of care, Notable aims to create dramatic positive impact for patients and the healthcare community. Notable is headquartered in Foster City, California. Learn more at www.notablelabs.com and follow us @notablelabs.
Forward Looking Statements
This press release contains “forward-looking statements” within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995, including but not limited to, express or implied statements regarding Notable’s future operations and goals; the potential benefits of any therapeutic candidates or platform technologies of Notable; the timing of any clinical milestones of Notable’s therapeutic candidates; the cash runway of the combined company; and other statements that are not historical fact. All statements other than statements of historical fact contained in this communication are forward-looking statements. These forward-looking statements are made as of the date they were first issued, and were based on the then-current expectations, estimates, forecasts, and projections, as well as the beliefs and assumptions of management. Forward-looking statements are subject to a number of risks and uncertainties, many of which involve factors or circumstances that are beyond Notable’s control. Notable’s actual results could differ materially from those stated or implied in forward-looking statements due to a number of factors, including but not limited to (i) uncertainties associated with Notable’s platform technologies, as well as risks associated with the clinical development and regulatory approval of product candidates, including potential delays in the commencement, enrollment and completion of clinical trials; (ii) risks related to the inability of Notable to obtain sufficient additional capital to continue to advance these product candidates and any preclinical programs; (iii) uncertainties in obtaining successful clinical results for product candidates and unexpected costs that may result therefrom; (iv) risks related to the failure to realize any value from product candidates and preclinical programs being developed and anticipated to be developed in light of inherent risks and difficulties involved in successfully bringing product candidates to market; (v) risks associated with Notable’s future financial and operating results, including its ability to become profitable; (vi) Notable’s ability to retain key personnel; (vii) Notable’s ability to manage the requirements of being a public company; (viii) uncertainties relating to the Israel-Hamas war; (ix) Notable’s ability to obtain orphan drug designation, and the associated benefits, for any of its drug candidates; (x) Notable’s inability to obtain regulatory approval for any of its drug candidates; and (xi) changes in, or additions, to international, federal, state or local legislative requirements, such as changes in or additions to tax laws or rates, pharmaceutical regulations, and other regulations. Actual results and the timing of events could differ materially from those anticipated in such forward-looking statements as a result of these risks and uncertainties. These and other risks and uncertainties are more fully described in periodic filings with the U.S. Securities and Exchange Commission (“SEC”), including the factors described in the section titled “Risk Factors” in the Registration Statement of Vascular Biogenics Ltd. on Form S-4, as filed with the SEC on September 1, 2023, and in other subsequent filings with the SEC. You should not place undue reliance on these forward-looking statements, which are made only as of the date hereof or as of the dates indicated in the forward-looking statements. Notable expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in its expectations with regard thereto or any change in events, conditions or circumstances on which any such statements are based.
CONTACTS:
Investor Relations: Daniel Ferry, LifeSci Advisors
+1 (617) 430-7576, daniel@lifesciadvisors.com