As filed with the Securities and Exchange
Commission on April 25, 2017
Registration No. 333-214981
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
Post-Effective Amendment No. 1
to
FORM F-1
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
ROSETTA GENOMICS LTD.
(Exact name of Registrant as specified
in its charter)
Not Applicable
(Translation of Registrant’s Name
into English)
Israel
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2834
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Not Applicable
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(State or other jurisdiction of
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(Primary Standard Industrial
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(IRS Employer
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incorporation or organization)
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Classification Code Number)
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Identification No.)
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Rosetta Genomics Ltd.
10 Plaut Street, Science Park
Rehovot 76706 POB 4059
Israel
+972-73-222-0700
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
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With a copy to:
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Rosetta Genomics Inc.
3711 Market Street, Suite 740
Philadelphia, Pennsylvania
19104
Attn: President
(215) 382-9000
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Robert E. Burwell, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
44 Montgomery Street, 36th
Floor
San Francisco, CA 94104
(415) 432-6000
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(Name, address , including zip code, and telephone number,
including area code, of agent for service)
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Approximate date of commencement of
proposed sale to the public:
From time to time after this registration statement becomes effective.
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, check the following box.
x
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement number of the earlier effective registration statement for
the same offering.
¨
____________
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
____________
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
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EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (this
“Post-Effective Amendment”) to the Registration Statement on Form F-1 (File No. 333-214981) (the “Registration
Statement”) is being filed pursuant to the undertaking of the Registration Statement to update and supplement information
contained in the Registration Statement, as originally filed and declared effective by the Securities and Exchange Commission (the
“SEC”) on February 16, 2017, to update Part I of the prospectus with the information contained in Company’s Annual
Report on Form 20-F for the year ended December 31, 2016 as filed with the SEC on March 30, 2017 and to make certain other updates
contained herein.
The information included in this filing
updates the Registration Statement and the prospectus contained therein. No additional securities are being registered under this
Post-Effective Amendment. All applicable registration fees were paid at the time of the original filing of the registration statement.
The information in this
prospectus is not complete and may be changed. The selling stockholders may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is
not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION,
DATED APRIL 25, 2017
430,834 Ordinary Shares
ROSETTA GENOMICS LTD.
This prospectus relates to the resale, from time to time, by
the selling stockholders named in this prospectus or their pledgees, donees, transferees, or other successors in interest of up
to 5,170,000 of our ordinary shares issuable upon conversion of convertible debentures (the “PIPE Debentures”) issued
to the selling stockholders in connection with a private placement under a Securities Purchase Agreement entered into on November
23, 2016 (the “2016 Private Placement”). All information in this prospectus relating to shares or price per share reflects
(i) the 1-for-4 reverse stock split we effected on July 6, 2011 and (ii) the 1-for-15 reverse stock split we effected on May 14,
2012, and (iii) the 1-for-12 reverse stock split we effected on March 16, 2017.
Our ordinary shares are currently listed
on the NASDAQ Capital Market under the symbol “ROSG.” On April 24, 2017, the last reported sale price of our ordinary
shares was $2.50 per share.
The selling stockholders may offer and
sell any of the ordinary shares from time to time at fixed prices, at market prices or at negotiated prices, and may engage a broker,
dealer or underwriter to sell the shares. For additional information on the possible methods of sale that may be used by the selling
stockholders, you should refer to the section entitled “Plan of Distribution” elsewhere in this prospectus. We will
not receive any proceeds from the sale of any ordinary shares by the selling stockholders. We do not know when or in what amount
the selling stockholders may offer the ordinary shares for sale. The selling stockholders may sell any, all or none of the ordinary
shares offered by this prospectus.
AN INVESTMENT IN OUR ORDINARY SHARES
INVOLVES RISKS. SEE THE
SECTION ENTITLED “RISK FACTORS”
BEGINNING ON PAGE 6.
Neither the Securities and Exchange Commission
nor any state securities commission has
approved or disapproved of these securities
or determined if this prospectus is truthful
or complete. Any representation to the
contrary is a criminal offense.
The date of this prospectus is April 24,
2017
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement on Form F-1 we filed with the Securities Exchange Commission, or the SEC, using a shelf registration process. Under the
shelf registration process, the selling stockholders named in this prospectus may, from time to time, sell the securities described
in this prospectus in one or more offerings. This prospectus and the documents incorporated by reference herein include important
information about us, the ordinary shares being offered by the selling stockholders and other information you should know before
investing. Any prospectus supplement may also add, update, or change information in this prospectus. If there is any inconsistency
between the information contained in this prospectus and any prospectus supplement, you should rely on the information contained
in that particular prospectus supplement. This prospectus does not contain all the information provided in the registration statement
we filed with the SEC. You should read this prospectus together with the additional information about us described in the sections
below entitled “Incorporation of Certain Information by Reference” and “Where You Can Find Additional Information.”
You should rely only on information contained in, or incorporated by reference into, this prospectus. We have not, and the selling
stockholders have not authorized anyone to provide you with information different from that contained in, or incorporated by reference
into, this prospectus. The information contained in this prospectus is accurate only as of the date on the front cover of the prospectus
and information we have incorporated by reference in this prospectus is accurate only as of the date of the document incorporated
by reference. You should not assume that the information contained in, or incorporated by reference into, this prospectus is accurate
as of any other date.
Unless the context otherwise requires, references
to “we,” “our,” “us,” the “Company” or “Rosetta” in this prospectus
mean Rosetta Genomics Ltd. and its subsidiaries.
“RosettaGX Cancer Origin™”,
“RosettaGX Next-Gen”, “mi-KIDNEY™” and “RosettaGx Reveal™” are the subject of either
a trademark registration or application for registration in the United States. Other brands, names and trademarks contained in
this prospectus supplement are the property of their respective owners. Solely for convenience, the trademarks, service marks and
trade names referred to in this prospectus supplement may appear without the ® and ™ symbols, but such references are
not intended to indicate, in any way, that the owner thereof will not assert, to the fullest extent under applicable law, such
owner’s rights to these trademarks, service marks and trade names. This prospectus supplement contains additional trade names,
trademarks and service marks of other companies, which, to our knowledge, are the property of their respective owners.
We obtained industry and market data used
throughout and incorporated by reference into this prospectus through our research, surveys and studies conducted by third parties
and industry and general publications. We have not independently verified market and industry data from third-party sources.
PROSPECTUS SUMMARY
This summary highlights only some of
the information included or incorporated by reference in this prospectus. You should carefully read this prospectus together with
the additional information about us described in the sections entitled “Where You Can Find Additional Information”
and “Incorporation of Certain Information by Reference” before purchasing our ordinary shares.
Overview
We are seeking to develop and commercialize
new diagnostic tests based on various genomics markers, including DNA, microRNA and protein biomarkers and using various technologies,
including, qPCR, microarrays, Next Generation Sequencing (NGS) and Fluorescence In Situ Hybridization (FISH). We have two CLIA-certified,
CAP-accredited, laboratories in Philadelphia, PA, and Lake Forest, CA which enable us to commercialize our own diagnostic tests
applying our microRNA technology.
We believe that we were the first commercial
enterprise to focus on the emerging microRNA field, and that as a result, we have developed an early and strong intellectual property
position related to the development and commercialization of microRNA-based diagnostics. Using our intellectual property, collaborative
relationships with leading commercial enterprises and academic and medical institutions, and expertise in the field of microRNAs,
we have initiated microRNA-based diagnostic programs for various cancers and other diseases. We are currently marketing and selling
the following four diagnostic tests based on our proprietary microRNA technologies:
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RosettaGX Reveal
– This is a microRNA-based assay for the classification of indeterminate thyroid fine-needle aspirate, or FNA, samples. The test utilizes routinely prepared FNA smears as well as liquid-based cytology samples (prepared using the ThinPrep® system) to classify a cytologically indeterminate thyroid nodule as “benign” or “suspicious for malignancy by microRNA”. The test also measures a microRNA biomarker for medullary carcinoma.
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RosettaGX Cancer Origin™ (formerly “miRview® mets2”)
– This test is our second-generation microRNA-based diagnostic for the identification of the primary site of metastatic cancer, specifically metastatic cancer of unknown primary (CUP).
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mi-KIDNEY™ (formerly “Rosetta Kidney Cancer Test”)
– This test is a microRNA-based kidney tumor classification test for pathology samples. This test was designed to classify primary kidney tumors into one of the four most common types: the malignant renal cell carcinomas clear cell (conventional), papillary and chromophobe as well as the benign oncocytoma.
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We currently have distribution agreements
with respect to some of these tests covering Australia, Greece, India, Israel, New Zealand and Turkey. All of these distribution
agreements call for samples to be sent to our CLIA-certified laboratory in Philadelphia for analysis.
In general, we are generating demand for
our testing services through our direct selling effort in the United States and are successfully fulfilling that demand in either
of our labs. We are working to gain more consistent payment from commercial payors, as well as to secure reimbursement coverage
from Medicare. We are increasing our activity to establish policy-level reimbursement, which could improve our ability to receive
prompt payment from commercial payors. We announced in May 2012 that the designated Medicare Administrative Contractor, or MAC,
for RosettaGX Cancer Origin is covering this test for all Medicare beneficiaries, and we are receiving approved payments for claims
submitted.
On April 13, 2015, we acquired CynoGen,
Inc., which does business as PersonalizeDx (“CynoGen” or “PersonalizeDx”). PersonalizeDx is a molecular
diagnostics and services company serving community-based pathologists, urologists, oncologists and other reference laboratories
across the United States. PersonalizeDx is focused on the detection of genomic changes through FISH technology, which helps to
detect cancer, measure the potential aggressiveness of the disease and identify patients most likely to respond to targeted therapies.
PersonalizeDx offers its clients a virtual
‘tech only’ platform in which such clients can collaborate with the company to perform and bill for the ‘professional
component’ of FISH molecular testing services for lung, breast, bladder, prostate and hematologic cancers. PersonalizeDx
also performs PCR, IHC and histology testing services for its clients in its 30,000 square foot laboratory facility located in
Lake Forest, CA. PersonalizeDx was initially founded by Abbott Laboratories and PersonalizeDx performed several clinical trial
studies for Abbott and Abbott’s research partners. PersonalizeDx is currently performing testing for one clinical trial for
Abbott in bladder cancer. There is no guarantee that PersonalizeDx will be granted additional clinical trial business from Abbott
going forward.
We have entered into an agreement to sell
and market products for Admera Health, offering products to oncology physicians that are key call points for our sales force. By
entering into this agreement, we believe we could gain additional opportunities to meet with oncologists and discuss new products
that may improve the patients’ diagnostic experience.
In addition, we have a number of
projects in our diagnostics pipelines including the research and development of product line extensions to, and next generation
versions of, our thyroid assay.
We are seeking to develop a second
version of RosettaGX Reveal, a microRNA-based assay for the differential diagnosis of indeterminate thyroid FNAs that utilizes
routinely prepared FNA smears. This second version will combine RosettaGX Reveal’s current microRNA biomarkers with other
genetic biomarkers (e.g. mRNA, other small RNAs) to optimize test performance. We anticipate that we will launch this assay by
2018.
MicroRNAs also represent potential targets
for the development of novel drugs. Until December 2016 we participated in the Rimonim Consortium, which was supported by the Israel
Innovation Authority (formerly known as the Office of the Chief of Scientist, "IIA" or "OCS") of the Ministry
of Economy. The aim of this consortium was to develop novel technologies for the use of short interfering RNA, or siRNA, and microRNA
mimetics or anti-microRNAs for therapeutics. In this consortium we attempted to: (1) develop novel RNA molecules that contain chemical
modifications or conjugations for therapeutic purposes; and (2) develop novel delivery systems for microRNAs that will enable targeted
delivery to desired cells. The transfer of know-how developed in the framework of the consortium or rights to manufacture based
on and/or incorporating such know-how to third parties which are not members of the consortium requires the consent of the IIA.
In addition, in the past we participated
in a two-year Magneton Project. This two-year project was also supported by the IIA and was conducted in collaboration with Prof.
Ronit Satchi-Fainaro (Department of Physiology and Pharmacology, Sackler School of Medicine, Tel Aviv University). It was aimed
at developing a nano-carrier delivery system for microRNA mimetics for the treatment of cancer. In December 2015, we completed
this project. Project activity included in vivo studies, pre-clinical toxicity studies and in vivo efficacy studies in an animal
model of glioblastoma. The results have shown limited efficacy. The transfer of knowledge discovered in this project is subject
to limitations specified in the Israeli R&D law.
The IIA, under special circumstances, may
approve the transfer of the know-how developed in these supported projects outside of Israel, provided that the grant recipient
pays to the IIA a portion of the sale price paid in consideration for such know-how, which portion will not exceed six times the
amount of the grants received plus interest (or three times the amount of the grant received plus interest, in the event that the
recipient of the know-how has committed to retain the R&D activities of the grant recipient in Israel after the transfer).
As of December 31, 2016, we had received
from the IIA total grants of $932,299 for our development under the Rimonim Consortium and $282,141 for our development under the
Magneton project.
The R&D law was amended effective as
of January 1, 2016. Pursuant to the amendment, the IIA, was established and will replace the OCS in the implementation of the governmental
policy in connection with the R&D Law (and has been given discretion in the implementation of the R&D Law for such purpose).
Pursuant to the amendment, the current restrictions under the R&D Law will be replaced by new arrangements to be determined
by the IIA; however, until the IIA determines otherwise, the provisions of the R&D Law and regulations that applied to existing
OCS programs (including those provisions described above) will continue to apply.
Background
Rosetta Genomics was founded in 2000 with
the belief that what was known as “junk DNA” actually contains hundreds, possibly thousands, of tiny RNA genes that
encode small RNA molecules, later termed microRNAs, which play an important role in the regulation of protein production, and hence
the onset and progression of disease. In the cell, genes are expressed through information carried from our DNA by messenger RNAs,
or mRNAs, which is in turn translated into proteins. Proteins are the building blocks of all living cells. The type of cell, its
function, and the timing of its death are determined by which proteins are produced in the cell, and at what quantities and time
they are produced. However, the proteins are the end product of a complex process, which begins with the genetic code present in
DNA. Before a protein is expressed, or produced, relevant parts of the DNA are copied into an mRNA. Each mRNA holds a code with
instructions on how to build a specific protein using a process called translation. Although one messenger RNA molecule is capable
of translating hundreds of thousands of protein molecules, the number it actually produces is regulated by microRNAs. MicroRNAs
have been found to regulate the expression of other genes by binding to the mRNA.
MicroRNAs have been shown to have varying
expression levels across various pathological conditions, and thus have significant potential as a class of highly sensitive and
tissue specific biomarkers. We have developed a microRNA discovery process and have demonstrated, in a work published by us in
Nature Genetics, that the number of human microRNAs is significantly higher than what was previously believed. We have discovered
hundreds of biologically validated human microRNAs and dozens of validated viral microRNAs and filed extensive patent applications
with claims potentially covering these microRNAs, some of which have been issued.
To leverage the potential of microRNAs as
a novel diagnostic platform, we have developed proprietary methods to extract microRNAs from a wide range of tissue and body fluid
samples and to quantify specific microRNA expression signatures, which may be used as diagnostic panels to potentially diagnose
cancers, their subtypes, as well as the origin of metastases. We have already developed and launched a number of diagnostic tests
based on our platforms and have published several papers demonstrating how our methods can be used to develop such diagnostics
(e.g. Rosenwald et al., Modern Pathology, 2010; Benjamin et al., Journal of Molecular Diagnostics, 2010). Moreover, we were able
to demonstrate the utility of our developed tests in post-market studies with collaborators from leading medical centers in the
United States and Europe (Bishop et al. Clinical Cancer Research, 2010; Muller et al., The Oncologist, 2010).
We believe that microRNAs are stable, sensitive
and specific markers, and we are advancing diagnostic development programs in cancer and other areas, to potentially enable accurate
diagnosis and improve patient care management worldwide.
Our Strategy
Our goal is to become a leader in the development
and commercialization of microRNA-based and other diagnostic tests. Our key business strategies to achieve this goal are as follows:
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Leverage our knowledge and experience
. We plan to leverage our extensive microRNA and Fluorescence in situ Hybridization, or FISH, knowhow and experience to potentially develop additional tissue-based as well as body fluid-based diagnostic tests.
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Maximize sales of our current commercial tests through geographic partners and our own commercial efforts
. We plan to maximize revenues from our current commercial tests via corporate relationships and through our own targeted commercial efforts. To date we have entered into distribution agreements with three distributors, pursuant to which these distributors have the right to commercialize these tests in their territories.
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Build and maintain a strong intellectual property position
. We believe that we were the first commercial enterprise to focus on the emerging field of microRNAs. We also believe we have an early and strong intellectual property position (both patents we own and those we have exclusively, co-exclusively, or non-exclusively licensed) in the area of developing and commercializing microRNA-based diagnostic tests. Our patent strategy is to seek broad coverage on all of our identified microRNA sequences. We have also filed, and intend to continue to file, patent applications that claim our technical platforms and method-of-use for specific diagnostic and therapeutic applications.
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Leverage our intellectual property position and microRNA expertise to continue to establish strategic collaborations
. We intend to continue to establish strategic collaborations with leading clinical diagnostic and pharmaceutical companies to further develop and commercialize microRNA-based diagnostics. We believe that our strong intellectual property position and expertise in the field of microRNAs will be very attractive to additional collaboration partners.
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Selectively pursue opportunities to expand our business and enhance our product offerings
. We plan to selectively pursue opportunities to acquire, license, or invest in complementary businesses, products, technologies and assets teams that will allow us to expand our portfolio of diagnostic tests and therapeutics, accelerate the pace of our innovation, and expand into additional markets beyond what we can achieve organically.
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The 2016 Private Placement and Concurrent 2016 Registered Direct
Offering
On November 23, 2016, we entered into
a securities purchase agreement (the “Purchase Agreement”) with a prominent institutional healthcare investor to
purchase (i) an aggregate of 91,250 of our ordinary shares (the “Shares”) at a purchase price of $6.00 per share
and an aggregate principal amount of $3.2 million of unsecured convertible debentures (the “Registered
Debentures”) in a registered direct offering (the “Registered Direct Offering”) and (ii) warrants to
purchase up to 833,334 ordinary shares with an initial exercise price of $10.20 per share (the “2016 Warrants”)
and an aggregate principal amount of $1.3 million unsecured convertible debentures (the “PIPE Debentures” and
together with the Registered Debentures, the “Debentures”) in a concurrent private placement (the “Private
Placement” and, together with the Registered Direct Offering, the “2016 Offerings”). The initial closing of
the 2016 Offerings occurred on November 29, 2016, at which time we received gross proceeds of $3.7 million for the ordinary
shares, the Registered Debentures and 2016 Warrants. The closing of the private placement of the PIPE Debentures occurred on
February 23, 2017. The closing involved the sale of the PIPE Debentures (convertible into a maximum of 430,834 ordinary
shares) for gross proceeds of $1.3 million. The aggregate net proceeds to the Company from the 2016 Offerings, after
deducting the placement agents’ fees and expenses and our estimated offering expenses, were approximately $4.6
million.
The Debentures are non-interest bearing,
have a term of 30 years and were convertible into ordinary shares at an initial conversion price of $6.00 per share. However, following
completion of 10 trading days following the 1-for-12 reverse split of our ordinary shares on March 16, 2017, the conversion price
of the Debentures was reduced to $3.0544, representing the lesser of (x) the then-applicable conversion price, as adjusted, and
(y) the average of the two lowest volume weighted average prices of our ordinary shares during the 10 trading days immediately
following the reverse stock split. Additionally, subject to limited exceptions, for a period of 18 months following February 16,
2017, the effective date of the resale registration statement on Form F-1 covering the resale of the ordinary shares issuable upon
conversion of the PIPE Debentures (the “Resale Registration Statement”), if we issue ordinary shares or securities
that are convertible or exercisable into ordinary shares at a price that is less than the effective conversion price, the conversion
price will be automatically reduced to the price at which we issued the ordinary shares or the underlying exercise price or conversion
price of the securities. However, under no circumstances will the adjusted conversion price of the Debentures be lower than $3.00.
Our payment obligations under the Debentures are guaranteed by our subsidiaries pursuant to a subsidiary guarantee. The Debentures
are not subject to voluntary prepayment prior to maturity.
The 2016 Warrants were immediately exercisable
upon issuance and have a term of five years. The exercise price of the 2016 Warrants is subject to adjustment upon the occurrence
of specific events, including stock dividends, stock splits, combinations and reclassifications of the Company’s ordinary
shares and rights offerings and pro rata distributions with respect to all holders of the Company’s ordinary shares. Additionally,
following completion of 10 trading days following the 1-for-12 reverse split of our ordinary shares on March 16, 2017, the exercise
price was reduced to $3.0544, representing the lesser of (x) the then-applicable exercise price, as adjusted, and (y) the average
of the two lowest volume weighted average prices of our ordinary shares during the 10 trading days immediately following the reverse
stock split. Additionally, subject to limited exceptions, for a period of 12 months following the effective date of the Resale
Registration Statement, if we issue ordinary shares or securities that are convertible or exercisable into ordinary shares at a
price that is less than the effective exercise price, the exercise price will be automatically reduced to the price at which we
issued the ordinary shares or the underlying exercise price or conversion price of the securities. Furthermore, in the event the
Company enters into a Fundamental Transaction (as defined in the 2016 Warrants) while any portions 2016 Warrants remain unexercised,
the investors shall have the right to receive an equivalent number of shares of the successor or acquiring corporation or the Company,
if it is the surviving corporation, and such additional consideration receivable as a result of the Fundamental Transaction by
a holder of the Company’s ordinary shares for which the 2016 Warrants are exercisable immediately prior to the Fundamental
Transaction. The Company may at any time concurrently with or within 30 days after the consummation of a Fundamental Transaction,
at the option of the investors holding any unexercised portions of the 2016 Warrants and subject to any applicable law, including
the limitations under the Israeli Companies Law, 1999, purchase the unexercised portion of the 2016 Warrants for an amount of cash
equal to the Black Scholes Value (as defined in the 2016 Warrants) of the unexercised portion of the 2016 Warrants. The Company
undertook not to cause or suffer to be completed any Fundamental Transaction if the Company or its successor entity cannot pay
the Black Scholes Value as a result of any restriction on such payment pursuant to the Israeli Companies Law, 1999 or otherwise,
and there is no other party under the terms of the Fundamental Transaction that is obligated to pay the Black Scholes Value.
Aegis Capital Corp. and Maxim Group LLC
served as placement agents for the Offerings (the “Placement Agents”). The Placement Agents received in the aggregate
(i) a cash fee equal to approximately $350,000 ($259,525 at the initial closing and $90,475 at the second closing), (ii) warrants
to purchase up to 25,000 ordinary shares (the “Placement Agent Warrants”) and (iii) reimbursement of expenses of $75,000.
The Placement Agent Warrants will become exercisable on November 29, 2017 and will expire on November 29, 2021 and have an exercise
price equal to $7.50, or 125% of the offering price per Share.
We also entered into a Registration Rights
Agreement with the investor, pursuant to which we filed the Resale Registration Statement on Form F-1 within 45 days of the initial
closing to cover the resale of the ordinary shares issuable upon conversion of the PIPE Debentures. Our failure to satisfy certain
conditions and deadlines described in the Registration Rights Agreement may subject us to payment of certain liquidated damages.
The Offerings were approved by our Board
of Directors in accordance with Israeli law.
Corporate Information
We were incorporated under the laws of the
State of Israel on March 9, 2000, as Rosetta Genomics Ltd., an Israeli company. The principal legislation under which we operate
is the Israeli Companies Law, 5759-1999, as amended, or the Companies Law. Our principal executive office is located at 10 Plaut
Street, Science Park, Rehovot 76706 Israel, and our telephone number is + 972-73-222-0700. Our wholly owned subsidiary, Rosetta
Genomics Inc., which was incorporated in Delaware on April 21, 2005, is located at 3711 Market Street, Suite 740, Philadelphia,
Pennsylvania 19104, and its telephone number is (215) 382-9000. Rosetta Genomics Inc. serves as our agent for service of process
in the United States. In April 2015, we acquired CynoGen Inc. (d/b/a PersonalizeDx), a Delaware corporation with principal offices
located at 25901 Commercentre Drive, Lake Forest, CA 92630. Our web site address is www.rosettagx.com. The information on our web
site is not incorporated by reference into this prospectus supplement and should not be considered to be a part of this prospectus
supplement.
The Offering
Ordinary shares offered by the selling stockholders
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Up to 430,834 ordinary shares issuable upon conversion of the PIPE Debentures.
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Use of proceeds
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We will not receive any proceeds from the sale of the ordinary shares offered by this prospectus.
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NASDAQ Capital Market Symbol
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ROSG
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RISK FACTORS
Investing in our ordinary shares involves
risks. Please carefully consider the risk factors described below and in our periodic reports filed with the SEC, including those
set forth under the caption “Item 3. Key Information - D. Risk Factors” in our annual report on Form 20-F for the year
ended December 31, 2016 (File No. 001-33042), which is incorporated by reference in this prospectus. Before making an investment
decision, you should carefully consider these risks as well as other information we include or incorporate by reference in this
prospectus. You should be able to bear a complete loss of your investment.
FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking
statements. These forward-looking statements may be included herein or incorporated by reference in this prospectus and include,
in particular, statements about our plans, strategies and prospects and may be identified by terminology such as “may,”
“will,” “should,” “expect,” “scheduled,” “plan,” “intend,”
“anticipate,” “believe,” “estimate,” “aim,” “potential,” “seek,”
“could,” “likely,” “strategy,” “goal” or “continue” or the negative
of those terms or other comparable terminology. These forward-looking statements are subject to risks, uncertainties and assumptions
about us. Although we believe that our plans, intentions and expectations are reasonable, we may not achieve our plans, intentions
or expectations.
Important factors that could cause actual
results to differ materially from the forward-looking statements we make in this prospectus are set forth in “Risk Factors.”
All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by
the cautionary statements in “Risk Factors,” in which we have disclosed the material risks related to our business.
These forward-looking statements involve risks and uncertainties, and the cautionary statements identify important factors that
could cause actual results to differ materially from those predicted in any forward-looking statements. We undertake no obligation
to update any of the forward-looking statements after the date of this prospectus to conform those statements to reflect the occurrence
of unanticipated events, except as required by applicable law. You should read this prospectus, the documents incorporated by reference
in this prospectus and any supplements to this prospectus, completely and with the understanding that our actual future results,
levels of activity, performance and achievements may be materially different from what we expect. We qualify all of our forward-looking
statements by these cautionary statements.
CAPITALIZATION AND INDEBTEDNESS
The table below sets forth our capitalization
and indebtedness as of December 31, 2016:
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on an actual basis (as derived from the audited consolidated financial statements as of December 31, 2016);
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on
an as adjusted basis to reflect the sale of an aggregate of approximately $1.3 million in PIPE Debentures in the 2016
Private Placement, for aggregate gross proceeds of approximately $1.3 million, less commissions and estimated aggregate
offering expenses payable by us in the amount of approximately $90,000 recorded as an increase to
accumulated deficit.
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As of December 31, 2016
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Actual
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As Adjusted
(Unaudited)
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(in thousands, except share and
per share data)
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|
|
|
|
|
|
|
|
Debt:
|
|
|
|
|
|
|
|
|
Debentures and embedded conversion option
|
|
$
|
755
|
|
|
$
|
2,047
|
|
Warrants
|
|
|
2,920
|
|
|
|
2,920
|
|
Total Debt
|
|
$
|
3,675
|
|
|
$
|
4,967
|
|
|
|
|
|
|
|
|
|
|
Shareholders’ equity:
|
|
|
|
|
|
|
|
|
Ordinary shares of NIS 7.2 par value: 5,000,000 shares authorized; 1,842,704 shares issued and outstanding, actual; and 1,842,704 shares issued and outstanding, as adjusted
|
|
$
|
3,442
|
|
|
$
|
3,442
|
|
Additional paid-in capital
|
|
$
|
157,478
|
|
|
$
|
157,478
|
|
Accumulated deficit
|
|
$
|
(156,503
|
)
|
|
$
|
(156,593
|
)
|
Total shareholders’ equity
|
|
$
|
4,417
|
|
|
$
|
4,327
|
|
MARKET FOR OUR ORDINARY SHARES
Our ordinary shares began trading on The
NASDAQ Global Market on February 27, 2007 under the symbol “ROSG.” On June 30, 2010, we transferred the listing of
our ordinary shares from The NASDAQ Global Market to The NASDAQ Capital Market. Prior to February 27, 2007, there was no established
public trading market for our ordinary shares. The high and low sales prices per share of our ordinary shares for the periods indicated
are set forth below. This information reflects the 1-for-4 reverse stock split effected on July 6, 2011, the 1-for 15 reverse stock
split effected on May 14, 2012 and the 1-for-12 reverse stock split effected on March 16, 2017.
Year Ended
|
|
High
|
|
|
Low
|
|
December 31, 2012
|
|
$
|
281.16
|
|
|
$
|
16.80
|
|
December 31, 2013
|
|
$
|
71.76
|
|
|
$
|
28.20
|
|
December 31, 2014
|
|
$
|
80.28
|
|
|
$
|
24.84
|
|
December 31, 2015
|
|
$
|
53.76
|
|
|
$
|
12.60
|
|
December 31, 2016
|
|
$
|
18.00
|
|
|
$
|
5.04
|
|
|
|
|
|
|
|
|
|
|
Quarter Ended
|
|
|
|
|
|
|
|
|
June 30, 2015
|
|
$
|
53.76
|
|
|
$
|
34.80
|
|
September 30, 2015
|
|
$
|
41.28
|
|
|
$
|
26.40
|
|
December 31, 2015
|
|
$
|
32.16
|
|
|
$
|
12.60
|
|
March 31, 2016
|
|
$
|
18.00
|
|
|
$
|
9.24
|
|
June 30, 2016
|
|
$
|
16.20
|
|
|
$
|
12.60
|
|
September 30, 2016
|
|
$
|
13.68
|
|
|
$
|
9.84
|
|
December 31, 2016
|
|
$
|
9.84
|
|
|
$
|
5.04
|
|
March 31, 2017
|
|
$
|
6.84
|
|
|
$
|
2.79
|
|
|
|
|
|
|
|
|
|
|
Month Ended
|
|
|
|
|
|
|
|
|
October 31, 2016
|
|
$
|
9.84
|
|
|
$
|
6.60
|
|
November 30, 2016
|
|
$
|
9.36
|
|
|
$
|
7.20
|
|
December 31, 2016
|
|
$
|
7.44
|
|
|
$
|
5.04
|
|
January 31, 2017
|
|
$
|
6.84
|
|
|
$
|
5.40
|
|
February 28, 2017
|
|
$
|
6.00
|
|
|
$
|
5.40
|
|
March 31, 2017
|
|
$
|
5.52
|
|
|
$
|
2.79
|
|
On April 24, 2017, the closing price of
our ordinary shares on The NASDAQ Capital Market was $2.50.
Dividend Policy
To date, we have not declared or paid cash
dividends on any of our shares, and we have no current intention of paying any cash dividends in the near future.
The Companies Law also restricts our ability
to declare and pay dividends. We can only distribute dividends from profits (as defined in the Companies Law), if, in the discretion
of our board of directors, there is no reasonable concern that the dividend distribution will prevent us from meeting our existing
and contingent obligations as they come due.
REASONS FOR THE OFFER AND USE OF PROCEEDS
We are required under the terms of the Registration
Rights Agreement entered into with the investor in the 2016 Offerings to file a registration statement on Form F-1, of which this
prospectus is a part, to cover the resale of the ordinary shares issuable upon conversion of the PIPE Debentures and exercise of
the 2016 Warrants (as well as the ordinary shares issuable upon exercise of the Placement Agent Warrants). The ordinary shares
being offered by this prospectus are solely for the account of the selling stockholders. We will not receive any proceeds from
the sale of these shares by the selling stockholders. We will, however, receive the proceeds of any cash exercises of warrants
which, if received, would be used by us for working capital and general corporate purposes.
DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
Information concerning our directors, senior
management and employees is contained in our Annual Report on Form 20-F filed with the SEC on March 30, 2017, which we incorporate
by reference in this prospectus.
SHARE OWNERSHIP
Information concerning our share ownership
is contained in our Annual Report on Form 20-F filed with the SEC on March 30, 2017, which we incorporate here by reference in
this prospectus.
DESCRIPTION OF SHARE CAPITAL
Authorized Share Capital
As of the date of this prospectus, our authorized
share capital was NIS 54,000,000 divided into 7,500,000 ordinary shares, nominal (par) value NIS 7.2 per share.
Ordinary Shares
As of March 31, 2017, 2,377,722 ordinary
shares were issued and outstanding. As of February 1, 2017, there were approximately 118 stockholders of record of our ordinary
shares. All our ordinary shares rank
pari passu
in all respects, and all our issued and outstanding ordinary
shares are fully paid and non-assessable.
Transfer Agent and Registrar
The transfer agent and registrar for our
ordinary shares is American Stock Transfer & Trust Company.
The NASDAQ Capital Market
Our ordinary shares are listed on The NASDAQ
Capital Market under the symbol “ROSG.”
On April 3, 2017, we received confirmation
from NASDAQ that we had regained compliance with the $1.00 minimum bid price requirement for continued listing on The Nasdaq Capital
Market, as required by Nasdaq Listing Rule 5550(a)(2) (the “Bid Price Rule”). As previously announced, on October
13, 2016, we received a staff deficiency letter from The Nasdaq Stock Market (“Nasdaq”) notifying us that for the previous
30 consecutive business days, the closing bid price per share of our ordinary shares was below the $1.00 minimum bid price requirement.
Nasdaq provided us with 180 calendar days, or until April 11, 2017, to regain compliance with the Bid Price Rule by demonstrating
at least ten consecutive days of a closing bid price of at least $1.00 per share prior to the end of the 180-day period. On March
27, 2017, we achieved our tenth consecutive day with a closing bid price in excess of $1.00 per share.
Warrants
As of March 31, 2017, we had the following
warrants outstanding:
|
·
|
Warrants issued in the April 2012 Registered Offering.
In connection with a registered direct offering in April 2012, we issued warrants to purchase up to 1,125 ordinary shares at an exercise price of $38.25 per share to the placement agent and its affiliates for services as placement agent. These placement agent warrants expire on April 12, 2017. As of the date of this prospectus, warrants have been exercised for 898 shares and warrants to purchase up to 228 ordinary shares remain outstanding.
|
|
·
|
Warrants issued in the First May 2012 Registered Offering.
In connection with a registered direct offering in May 2012, we issued warrants to purchase up to 1,316 ordinary shares at an exercise price of $52.50 per share to the placement agent and its affiliates for services as placement agent. These placement agent warrants expire on May 16, 2017. As of the date of this prospectus, warrants have been exercised for 1,083 shares and warrants to purchase up to 234 ordinary shares remain outstanding.
|
|
·
|
Warrants issued in the Second May 2012 Registered Offering.
In connection with a registered direct offering in May 2012, we issued warrants to purchase up to 1,190 ordinary shares at an exercise price of $172.50 per share to the placement agent and its affiliates for services as placement agent. These placement agent warrants expire on May 24, 2017.
|
|
·
|
Warrants issued in the August 2012 Registered Offering.
In connection with an underwritten offering in August 2012, we issued warrants to purchase up to 12,414 ordinary shares at an exercise price of $75 per share to the underwriter and its affiliates for services as underwriter. These placement agent warrants expire on August 2, 2017.
|
|
·
|
Warrants issued to Consultants.
In October 2013, we issued warrants to purchase up to 1,250 ordinary shares at an exercise price of $38.16 per share a consultant for services. These warrants expire on October 16, 2023.
|
|
·
|
Warrants issued in the 2015 Private Placement.
In connection with a private placement in October 2015 (the “2015 Private Placement”), we issued the purchasers (i) Series A warrants to purchase up to an aggregate of 138,893 ordinary shares at an exercise price of $33.00 per share (subject to adjustment as set forth below) and (ii) partially pre-funded Series B warrants to purchase a maximum of up to an aggregate of 222,222 ordinary shares. The Series B warrants had an exercise price of NIS 7.2 (which had been prepaid) plus $0.0001 per share. The Series B warrants were intended to reset the price of the units sold in the Private Placement, and were exercisable for an aggregate number of ordinary shares based on a reset price per unit equal to 85% of the arithmetic average of the five lowest weighted average prices calculated during the ten trading days following the effective date of a resale registration statement; provided that such average was less than $28.80 and; provided, further, however, that the maximum aggregate number of ordinary shares issuable upon exercise of the Series B warrants would not exceed 222,222 shares. All Series B warrants were exercised on a cashless basis for an aggregate of 222,207 shares. The Series A warrants expire on October 15, 2020, and the exercise price of the Series A warrants was adjusted downward upon the eleventh trading day after the effective date of the resale registration statement to $19.76 per share. In addition, we issued warrants to purchase up to 8,334 ordinary shares on the same terms as the Series A warrants, to the placement agent and its affiliates for services as placement agent. These placement agent warrants expire on October 15, 2020.
|
|
·
|
Warrants issued in the 2016 Offerings.
In connection with the 2016 Offerings, we issued the investors 2016 Warrants to purchase up to 833,334 ordinary shares with an initial exercise price of $10.20 per share. The 2016 Warrants were immediately exercisable upon issuance and have a term of five years. The exercise price of the 2016 Warrants is subject to adjustment upon the occurrence of specific events, including stock dividends, stock splits, combinations and reclassifications of the Company’s ordinary shares and rights offerings and pro rata distributions with respect to all holders of the Company’s ordinary shares. Additionally, following completion of 10 trading days following the 1-for-12 reverse split of our ordinary shares on March 16, 2017, the exercise price was reduced to $3.0544, representing the lesser of (x) the then-applicable exercise price, as adjusted, and (y) the average of the two lowest volume weighted average prices of our ordinary shares during the 10 trading days immediately following the reverse stock split. Additionally, subject to limited exceptions, for a period of 12 months following the effective date of the Resale Registration Statement, if we issue ordinary shares or securities that are convertible or exercisable into ordinary shares at a price that is less than the effective exercise price, the exercise price will be automatically reduced to the price at which we issued the ordinary shares or the underlying exercise price or conversion price of the securities. Furthermore, in the event the Company enters into a Fundamental Transaction (as defined in the 2016 Warrants) while any portions 2016 Warrants remain unexercised, the investors shall have the right to receive an equivalent number of shares of the successor or acquiring corporation or the Company, if it is the surviving corporation, and such additional consideration receivable as a result of the Fundamental Transaction by a holder of the Company’s ordinary shares for which the 2016 Warrants are exercisable immediately prior to the Fundamental Transaction. The Company may at any time concurrently with or within 30 days after the consummation of a Fundamental Transaction, at the option of the investors holding any unexercised portions of the 2016 Warrants and subject to any applicable law, including the limitations under the Israeli Companies Law, 1999, purchase the unexercised portion of the 2016 Warrants for an amount of cash equal to the Black Scholes Value (as defined in the 2016 Warrants) of the unexercised portion of the 2016 Warrants. The Company undertook not to cause or suffer to be completed any Fundamental Transaction if the Company or its successor entity cannot pay the Black Scholes Value as a result of any restriction on such payment pursuant to the Israeli Companies Law, 1999 or otherwise, and there is no other party under the terms of the Fundamental Transaction that is obligated to pay the Black Scholes Value. In addition, we issued the Placement Agent Warrants to purchase up to 25,000 ordinary shares to the Placement Agents and their affiliates for services as placement agent. The Placement Agent Warrants will become exercisable on November 29, 2017 and will expire on November 29, 2021 and have an exercise price equal to $7.50.
|
Share History
The following is a summary of the history
of our share capital since February 1, 2014.
Ordinary Share Issuances
Stock Options/RSUs.
Since February
1, 2014, we have issued 3 ordinary shares upon the exercise of stock options and 10,590 shares pursuant to restricted stock units
(RSUs).
Exercise of Warrants.
Since February
1, 2014, we have issued 745 ordinary shares upon the exercise of warrants (not including the 222,207 ordinary shares issued upon
exercise of the Series B warrants as discussed under “- 2015 Private Placement” below).
CynoGen, Inc. Acquisition.
On April
14, 2015, we issued 41,666 ordinary shares in connection with our acquisition of CynoGen, Inc. (d/b/a PersonalizeDx). In addition,
on July 22, 2015, we issued an addition 10,000 ordinary shares in lieu of services that were to be provided to an affiliate of
CynoGen.
Sales under at-the-market issuance Sales
Agreements.
Since February 1, 2014, we have sold an aggregate of 226,461 ordinary shares under at-the market sales agreements
for aggregate gross proceeds of $14,736,842.
2015 Private Placement
. On October
15, 2015, we closed the 2015 Private Placement, pursuant to which we sold an aggregate 27,777 units at $28.80 per unit, with each
unit consisting of (i) one ordinary share, (ii) a Series A warrant to purchase one-half of an ordinary share at an exercise price
of $33.00 per ordinary share (subject to adjustment), and (iii) a partially pre-funded Series B warrant. In connection with the
Private Placement, we also issued to the placement agent and its affiliates warrants to purchase a total of 8,333 ordinary shares
on the same terms as the Series A warrants. All of the Series B warrants were exercised on a cashless basis for an aggregate of
222,207 shares.
2016 Offerings
. On November
23, 2016, we entered into the Purchase Agreement with a prominent institutional healthcare investor to purchase (i) an
aggregate of 91,250 Shares at a purchase price of $6 per share and an aggregate principal amount of $3.2 million of
Registered Debentures in the Registered Direct Offering and (ii) warrants to purchase up to 833,334 ordinary shares with an
initial exercise price of $10.20 per share (the “Warrants”) and an aggregate principal amount of $1.3 million
unsecured convertible debentures (the “PIPE Debentures” and together with the Registered Debentures,
the “Debentures”) in a concurrent private placement (the “Private Placement”). At this initial
closing, we received gross proceeds of $3,707,500 for the ordinary shares, the Registered Debentures and 2016 Warrants. The
closing of the second tranche of the private placement of convertible debentures occurred on February 23, 2017. The closing
of this second tranche involved the sale of additional PIPE Debentures (convertible into a maximum of 430,834 ordinary
shares) for gross proceeds of approximately $1.3 million. The Placement Agents also received Placement Agent Warrants to
purchase up to 25,000 ordinary shares at an exercise price equal to $7.50.
Other Issuances
. In September 2014,
we issued 500 ordinary shares to a former employee in consideration for settlement of a dispute.
Authorized Share Capital
On March 16, 2017, our stockholders approved
the consolidation and the increase of our registered (authorized) share capital, such that following such consolidation and increase,
the registered (authorized) share capital was NIS 54,000,000 divided into 7,500,000, ordinary shares nominal (par) value NIS 7.2
each.
SELLING STOCKHOLDERS
The ordinary shares being offered by the
selling stockholders are those issuable to the selling stockholders upon conversion of the PIPE Debentures. For additional information
regarding the issuances of those securities, see “Prospectus Summary – 2016 Private Placement and Concurrent 2016 Registered
Direct Offering” above. We are registering the ordinary shares in order to permit the selling stockholders to offer the shares
for resale from time to time. Except for the ownership of our securities and the participation in the 2015 Private Placement as
noted in the footnotes below, the selling stockholders have not had any material relationship with us within the past three years.
The table below lists the selling stockholders
and other information regarding the beneficial ownership of the ordinary shares by each of the selling stockholders. The second
column lists the number of ordinary shares beneficially owned by each selling stockholder, based on its ownership of the ordinary
shares, 2016 Warrants and Debentures, as of April 21, 2017, assuming exercise of the 2016 Warrants and conversion of the Debentures
(and assuming a conversion price of $3.0544 per share for the Debentures) held by the selling stockholders on that date, without
regard to any limitations on exercises.
The third column lists the ordinary shares
being offered by this prospectus by the selling stockholders.
In accordance with the terms of the Registration
Rights Agreement with the selling stockholders, this prospectus generally covers the resale of at least the maximum number of ordinary
shares issuable upon conversion of the PIPE Debentures, determined as if the PIPE Debentures were converted in full as of the trading
day immediately preceding the date this registration statement was initially filed with the SEC, each as of the trading day immediately
preceding the applicable date of determination and all subject to adjustment as provided in the Registration Rights Agreement,
without regard to any limitations on the conversion of the PIPE Debentures. The fourth column assumes the sale of all of the shares
offered by the selling stockholders pursuant to this prospectus.
Under the terms of the 2016 Warrants and
the Debentures, a selling stockholder may not exercise the Warrants or convert the Debentures to the extent such exercise/conversion
would cause such selling stockholder, together with its affiliates, to beneficially own a number of ordinary shares which would
exceed 4.99% of our then outstanding ordinary shares following such exercise/conversion, excluding for purposes of such determination
ordinary shares issuable upon exercise of the 2016 Warrants which have not been exercised or of the Debentures which have not been
converted. The number of shares in the table below does not reflect this limitation. The selling stockholders may sell all, some
or none of their shares in this offering. See “Plan of Distribution.”
The table below has been prepared based
upon the information furnished to us by the selling stockholders. The selling stockholders identified below may have
sold, transferred or otherwise disposed of some or all of their shares since the date on which the information in the following
table is presented in transactions exempt from or not subject to the registration requirements of the Securities Act. Information
concerning the selling stockholders may change from time to time and, if necessary, we will amend or supplement this prospectus
accordingly.
Any selling stockholders who are affiliates
of broker-dealers and any participating broker-dealers may be deemed to be “underwriters” within the meaning of the
Securities Act, and any commissions or discounts given to any such selling stockholder or broker-dealer may be regarded as underwriting
commissions or discounts under the Securities Act. The selling stockholders have informed us that they do not have any agreement
or understanding, directly or indirectly, with any person to distribute their ordinary shares.
Name of Selling Stockholder
|
|
Number of
Ordinary
Shares Owned
Prior to
Offering (1)
|
|
|
Maximum
Number of
Ordinary
Shares to be
Sold Pursuant
to this
Prospectus
|
|
|
Number of
Ordinary
Shares Owned
After Offering
|
|
|
|
|
|
|
|
|
|
|
|
Sabby Volatility Warrant Master Fund, Ltd. (2)
|
|
|
487,560
|
|
|
|
107,709
|
|
|
|
379,851
|
|
c/o Sabby Management, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
10 Mountainview Road
|
|
|
|
|
|
|
|
|
|
|
|
|
Suite 205
|
|
|
|
|
|
|
|
|
|
|
|
|
Upper Saddle River, NJ 07458
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sabby Healthcare Master Fund, Ltd. (3)
|
|
|
1,441,170
|
|
|
|
323,125
|
|
|
|
1,118,045
|
|
c/o Sabby Management, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
10 Mountainview Road
|
|
|
|
|
|
|
|
|
|
|
|
|
Suite 205
|
|
|
|
|
|
|
|
|
|
|
|
|
Upper Saddle River, NJ 07458
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
In computing the number of shares beneficially owned by a selling stockholder, ordinary shares underlying options, warrants and other convertible securities (including the 2016 Warrants and PIPE Debentures) held by that selling stockholder that are convertible or exercisable, as the case may be, within 60 days of April 21, 2017 are included. We do not know when or in what amounts the selling stockholders may offer shares for sale. The selling stockholders might not sell a portion or all of the shares offered by this prospectus. Because the selling stockholders may offer all or some of the shares pursuant to this offering, we cannot estimate the number of the shares that will be held by the selling stockholders after completion of the offering. However, for purposes of this table, we have assumed that, after completion of the offering, none of the shares covered by this prospectus will be held by the selling stockholders, and all of the shares not covered by this prospectus will be held by the selling stockholders. In addition, all 2016 Warrants and Debentures held by the selling stockholders contain provisions limiting the exercise of such 2016 Warrants and conversion of such Debentures if, thereafter, the selling stockholder would beneficially own in excess of 4.99% of our outstanding ordinary shares. However, for purposes of determining beneficial ownership prior to and following the offering, we have included all shares issuable upon exercise of the 2016 Warrants and conversion of the Debentures. Shares issuable upon exercise of the Placement Agent Warrants are not listed under Number of Shares Owned Prior to Offering because the Placement Agent Warrants do not become exercisable until November 29, 2017.
|
|
(2)
|
Number of shares
to be sold pursuant to this prospectus consists of up to 107,709 ordinary shares issuable upon conversion of the PIPE
Debentures (assuming a conversion price of $3.00 per share) issued in the 2016 Private Placement. Number of shares owned
prior to the offering also includes (i) up to 208,333 ordinary shares issuable upon exercise of the 2016 Warrants issued in
the 2016 Private Placement, (ii) 22,812 ordinary shares purchased in the 2016 Registered Direct Offering, (iii) up to 131,666
ordinary shares issuable upon conversion of the Registered Debentures (assuming a conversion price of $3.0544 per share)
issued in the 2016 Registered Direct Offering and (iv) up to 17,360 ordinary shares issuable upon exercise of warrants at an
exercise price of $19.752 per share received in the 2015 Private Placement. Sabby Management, LLC serves as the investment
manager of Sabby Volatility Warrant Master Fund, Ltd. Hal Mintz is the manager of Sabby Management, LLC and has voting and
investment control of the securities held by Sabby Volatility Warrant Master Fund, Ltd. Each of Sabby Management, LLC and Hal
Mintz disclaims beneficial ownership over the securities beneficially owned by Sabby Volatility Warrant Master Fund, Ltd.
except to the extent of their respective pecuniary interest therein.
|
|
(3)
|
Number of shares to be sold pursuant to this prospectus consists of up to 323,125 ordinary shares issuable upon conversion of the PIPE Debentures (assuming a conversion price of $3.00 per share) issued in the 2016 Private Placement. Number of shares owned prior to the offering also includes (i) up to 625,000 ordinary issuable upon exercise of the 2016 Warrants issued in the 2016 Private Placement, (ii) 68,437 ordinary shares purchased in the 2016 Registered Direct Offering, (iii) up to 395,000 ordinary shares issuable upon conversion of the Registered Debentures (assuming a conversion price of $3.0544 per share) issued in the 2016 Registered Direct Offering and (iv) up to 25,608 ordinary shares issuable upon exercise of warrants at an exercise price of $19.752 per share received in the 2015 Private Placement. Sabby Management, LLC serves as the investment manager of Sabby Healthcare Master Fund, Ltd. Hal Mintz is the manager of Sabby Management, LLC and has voting and investment control of the securities held by Sabby Healthcare Master Fund, Ltd. Each of Sabby Management, LLC and Hal Mintz disclaims beneficial ownership over the securities beneficially owned by Sabby Healthcare Master Fund, Ltd. except to the extent of their respective pecuniary interest therein.
|
PLAN OF DISTRIBUTION
Each Selling Stockholder (the “Selling
Stockholders”) of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time,
sell any or all of their securities covered hereby on the NASDAQ Capital Market or any other stock exchange, market or trading
facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A Selling
Stockholder may use any one or more of the following methods when selling securities:
|
·
|
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
|
|
·
|
block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction;
|
|
·
|
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
|
|
·
|
an exchange distribution in accordance with the rules of the applicable exchange;
|
|
·
|
privately negotiated transactions;
|
|
·
|
settlement of short sales;
|
|
·
|
in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated price per security;
|
|
·
|
through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
|
|
·
|
a combination of any such methods of sale; or
|
|
·
|
any other method permitted pursuant to applicable law.
|
The Selling Stockholders may also sell securities
under Rule 144 or any other exemption from registration under the Securities Act of 1933, as amended (the “Securities
Act”), if available, rather than under this prospectus.
Broker-dealers engaged by the Selling Stockholders
may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the Selling
Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated,
but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a customary
brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction a markup or markdown in compliance
with FINRA IM-2440.
In connection with the sale of the securities
or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial institutions,
which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The Selling Stockholders
may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities
to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option or other transactions
with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such
broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other
financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholders and any broker-dealers
or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any
profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities
Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly
or indirectly, with any person to distribute the securities.
The Company is required to pay certain fees
and expenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify the Selling
Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus effective
until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders without registration and without
regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance
with the current public information under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of
the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect.
The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities
laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and
is complied with.
Under applicable rules and regulations under
the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market making
activities with respect to the Ordinary Shares for the applicable restricted period, as defined in Regulation M, prior to the commencement
of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange Act and the
rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the Ordinary Shares
by the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders and
have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
LEGAL MATTERS
Certain legal matters
with respect to the legality of the issuance of the ordinary shares offered by this prospectus will be passed upon for us by Amar
Reiter Jeanne Shochatovitch & Co., Lawyers, Ramat Gan, Israel.
EXPERTS
The consolidated financial statements of
Rosetta Genomics Ltd. appearing in Rosetta Genomics Ltd. Annual Report on Form 20-F as filed with the SEC on March 30, 2017, have
been audited by Kost Forer Gabbay & Kasierer (a Member of Ernst & Young Global), independent registered public accounting
firm, as set forth in their report thereon, and incorporated herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing. The
address of Kost Forer Gabbay & Kasierer is 3 Aminadav St., Tel-Aviv, Israel 6706703.
EXPENSES
The following are the
estimated expenses of the issuance and distribution of the securities being registered under the registration statement of which
this prospectus forms a part, all of which will be paid by us.
SEC registration fee
|
|
$
|
1,094
|
|
Legal fees and expenses*
|
|
|
15,000
|
|
Accounting fees and expenses*
|
|
|
10,000
|
|
Printing fees and expenses*
|
|
|
5,000
|
|
Miscellaneous*
|
|
|
3,906
|
|
Total*
|
|
$
|
35,000
|
|
*Estimated
INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE
The SEC allows us to “incorporate
by reference” the information we file with it, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered to be part of this prospectus. The documents we
are incorporating by reference as of their respective dates of filing are:
|
·
|
Annual Report on Form 20-F for the year ended December 31, 2016, filed on March 30, 2017 (File No. 001-33042)
|
|
·
|
Report on Form 6-K filed on January 26, 2017 (File No. 001-33042);
|
|
·
|
Report on Form 6-K filed on February 14, 2017 (File No. 001-33042;
|
|
·
|
Report on Form 6-K filed on February 15, 2017 (File No. 001-33042);
|
|
·
|
Report on Form 6-K filed on February 23, 2017 (File No. 001-33042);
|
|
·
|
Report on Form 6-K filed on March 13, 2017 (File No. 001-33042);
|
|
·
·
|
Report on Form 6-K filed on March 16, 2017 (File No.
001-33042);
Report on Form 6-K filed on April 4, 2017 (File No.
001-33042);
|
|
·
|
the description of our ordinary shares contained in our Form 8-A filed on September 22, 2006 (File No. 001-33042).
|
Any statement contained in a document incorporated
by reference herein shall be deemed to be modified or superseded for all purposes to the extent that a statement contained in this
prospectus, or in any other subsequently filed document which is also incorporated or deemed to be incorporated by reference, modifies
or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this prospectus.
You may request, orally or in writing, a
copy of these documents, which will be provided to you at no cost, by contacting:
Ron Kalfus
Chief Financial Officer
Rosetta Genomics Ltd.
3711 Market Street, Suite 740
Philadelphia, PA 19104
215-382-9000
WHERE YOU CAN FIND ADDITIONAL INFORMATION
As required by the Securities Act, we filed
a registration statement on Form F-1 relating to the securities offered by this prospectus with the SEC. This prospectus is a part
of that registration statement, which includes additional information. You should refer to the registration statement and its exhibits
for additional information. Whenever we make reference in this prospectus to any of our contracts, agreements or other documents,
the references are not necessarily complete and you should refer to the exhibits attached to the registration statement for copies
of the actual contract, agreements or other document.
We are subject to the informational requirements
of the Exchange Act applicable to foreign private issuers. We, as a “foreign private issuer,” are exempt from the rules
under the Exchange Act prescribing certain disclosure and procedural requirements for proxy solicitations, and our officers, directors
and principal shareholders are exempt from the reporting and “short-swing” profit recovery provisions contained in
Section 16 of the Exchange Act, with respect to their purchases and sales of shares. In addition, we are not required to file annual,
quarterly and current reports and financial statements with the SEC as frequently or as promptly as United States companies whose
securities are registered under the Exchange Act. However, we anticipate filing with the SEC, within four months after the end
of each fiscal year, an annual report on Form 20-F containing financial statements audited by an independent accounting firm.
You may read and copy any document we file
or furnish with the SEC at reference facilities at 100 F Street, N.E., Washington, DC 20549. You may also obtain copies of the
documents at prescribed rates by writing to the Public Reference Section of the SEC at 100 F Street, N.E., Washington, DC 20549.
Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference facilities. You can review
our SEC filings and the registration statement by accessing the SEC’s internet site at http://www.sec.gov.
ENFORCEABILITY OF CIVIL LIABILITIES
We are incorporated under the laws of the
State of Israel. Service of process upon us and upon our directors and officers and the Israeli experts named in this prospectus,
substantially all of whom reside outside the United States, may be difficult to obtain within the United States. Furthermore, because
substantially all of our assets and substantially all of our directors and officers are located outside the United States, any
judgment obtained in the United States against us or any of our directors and officers may not be collectible within the United
States.
We have been informed by our legal counsel
in Israel that it may be difficult to assert U.S. securities law claims in original actions instituted in Israel. Israeli courts
may refuse to hear a claim based on a violation of U.S. securities laws because Israel is not the most appropriate forum to bring
such a claim. In addition, even if an Israeli court agrees to hear a claim, it may determine that Israeli law and not U.S. law
is applicable to the claim. If U.S. law is found to be applicable, the content of applicable U.S. law must be proved as a fact,
which can be a time-consuming and costly process. Certain matters of procedure will also be governed by Israeli law. There is little
binding case law in Israel addressing these matters.
Subject to specified time limitations and
legal procedures, Israeli courts may declare a foreign judgment in a civil matter, including a monetary or compensatory judgment
in a non-civil matter, enforceable if it finds that:
|
·
|
the judgment was rendered by a court which was, according to the laws of the state of the court, competent to render the judgment;
|
|
·
|
the judgment may no longer be appealed;
|
|
·
|
the obligation imposed by the judgment is enforceable according to the rules relating to the enforceability of judgments in Israel and the substance of the judgment is not contrary to public policy; and
|
|
·
|
the judgment is executory in the state in which it was given.
|
Notwithstanding the previous sentence, an
Israeli court will not declare a foreign civil judgment enforceable if:
|
·
|
the judgment was given in a state whose laws do not provide for the enforcement of judgments of Israeli courts (subject to exceptional cases);
|
|
·
|
the enforcement of the judgment is likely to prejudice the sovereignty or security of the State of Israel;
|
|
·
|
the judgment was obtained by fraud;
|
|
·
|
the possibility given to the defendant to bring its arguments and evidence before the court was not reasonable in the opinion of the Israeli court;
|
|
·
|
the judgment was rendered by a court not competent to render it according to the laws of private international law as they apply in Israel;
|
|
·
|
the judgment is contradictory to another judgment that was given in the same matter between the same parties and that is still valid; or
|
|
·
|
at the time the action was brought in the foreign court, a lawsuit in the same matter and between the same parties was pending before a court or tribunal in Israel.
|
We have irrevocably appointed our wholly
owned U.S. subsidiary, Rosetta Genomics Inc., as our agent to receive service of process in any action against us in any U.S. federal
or state court arising out of this offering or any purchase or sale of securities in connection with this offering.
If a foreign judgment is enforced by an
Israeli court, it generally will be payable in Israeli currency. Judgment creditors must bear the risk of unfavorable exchange
rate fluctuations.
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to our directors, officers and controlling persons, we have been informed that
in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
PART II - INFORMATION NOT REQUIRED IN
PROSPECTUS
Item 6. Indemnification of Directors and Officers
Article 67 of our articles of association
provides as follows:
“INDEMNITY AND INSURANCE
|
(a)
|
Subject to the provisions of the Companies Law and to the fullest extent permitted under the Companies Law, as shall be in effect from time to time, the Company may:
|
|
(i)
|
enter into a contract for the insurance of the liability, in whole or in part, of any of its Office Holders;
|
|
(ii)
|
undertake in advance to indemnify an Office Holder, under any circumstances, in respect of which the Company may undertake in advance to indemnify an Office Holder under the Companies Law, subject to the limitations set forth in the Companies Law;
|
|
(iii)
|
indemnify an Office Holder as permitted under the Companies Law;
|
|
(iv)
|
release and exculpate, in advance, any Office Holder from any liability from damages arising out of a breach of a duty of care towards the Company.
|
|
(b)
|
Any amendment to the Companies Law adversely affecting the right of any Office Holder to be indemnified or insured pursuant to this Article 67 shall be prospective in effect, and shall not affect the Company’s obligation or ability to indemnify or insure an Office Holder for any act or omission occurring prior to such amendment, unless otherwise provided by the Companies Law.
|
|
(c)
|
The provisions of this Article 67 are not intended, and shall not be interpreted so as to restrict the Company, in any manner, in respect of the procurement of insurance and/or indemnification and/or exculpation, in favour of any person who is not an Office Holder, including, without limitation, any employee, agent, consultant or contractor of the Company who is not an Office Holder.”
|
Article 2 of our articles of association
defines “Office Holder” as “every director and every other person included in the definition of “office
holder” under the Companies Law, including the executive officers of the Company.”
The Companies Law provides that a company
may, if its articles of association include provisions which allow it to do so:
|
(1)
|
enter into a contract to insure the liability of an “office holder” (as defined) of the company by reason of acts committed in his or her capacity as an office holder of the company for any of the below:
|
|
(a)
|
the breach of his or her duty of care to the company or any other person;
|
|
(b)
|
the breach of his or her duty of loyalty to the company to the extent he or she acted in good faith and had a reasonable basis to believe that the act would not prejudice the interests of the company; and
|
|
(c)
|
monetary liabilities or obligations which may be imposed upon him or her in favor of other persons.
|
|
(2)
|
indemnify an office holder of the company for the following liabilities or expenses that may be imposed upon him or her or that he or she may incur by reason of acts committed in his or her capacity as an office holder of the company, for:
|
|
(a)
|
monetary liabilities or obligations imposed upon him or her in favor of another person under a court judgment, including a compromise judgment or an arbitrator’s decision approved by a court;
|
|
(b)
|
reasonable litigation expenses, including attorney’s fees, actually incurred by the office holder pursuant to an inquiry or a proceeding brought against him or her by a competent authority, which was concluded without the submission of an indictment against him or her and without any financial penalty being imposed on him or her as an alternative to a criminal proceeding or which was concluded without the submission of an indictment against him or her but with a financial penalty being imposed on him or her as an alternative to a criminal proceeding, in respect of a criminal offence which does not require proof of criminal intent or with respect to monetary sanction;
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|
|
|
|
|
In this subsection: (i) a proceeding concluded without
the submission of an indictment in a matter in respect to which a criminal investigation was initiated shall mean the relevant
case against him or her being closed in accordance with the provisions of Section 62 of the Israeli Criminal Procedure Law [Consolidated
Version], 5742-1982, or by virtue of a stay of proceedings by the Attorney General in accordance with the provisions of Section
231 of the Israeli Criminal Procedure Law [Consolidated Version], 5742-1982; and (ii) “a financial penalty imposed as an
alternative to a criminal proceeding” means a monetary penalty imposed in accordance with law as an alternative to a criminal
proceeding, including an administrative fine in accordance with the Israeli Administrative Crimes Law, 5746-1985, a fine for a
crime that is considered a crime in respect of which a fine may be imposed, in accordance with the provisions of the Israeli Criminal
Procedure Law[Consolidated Version], 5742-1982, a monetary sanction or a forfeit; and
|
|
(c)
|
reasonable litigation expenses, including attorney’s fees, actually incurred by the office holder or imposed upon him or her by a court, in an action, suit or proceeding brought against him or her by or on behalf of the company or by other persons, or in connection with a criminal action from which he or she was acquitted, or in connection with a criminal action which does not require proof of criminal intent in which he or she was convicted.
|
|
(3)
|
exempt an office holder, in advance, from and against all or part of his or her liability for damages due to a breach of his or her duty of care to it, provided that a company may not exempt a director in advance from his or her liability to it due to a breach of his or her duty of care with respect to a ‘Distribution’ (as defined in Section 1 of the Companies Law).
|
The Companies Law provides that a company’s
articles of association may provide for indemnification of an office holder (X) post-factum; and (Y) may also provide that a company
may undertake to indemnify an office holder in advance as follows: (i) as detailed in section 2(a) above, provided that the undertaking
is limited to types of occurrences which, in the opinion of the company’s board of directors, are, at the time of the undertaking,
foreseeable in light of the activities of the company when the undertaking is given and to an amount or a criteria that the board
of directors has determined is reasonable in the circumstances, and that the undertaking shall specify the occurrences which in
the board of directors’ opinion are foreseeable as aforesaid, and the amount or criteria set by the board of directors as
reasonable in the circumstances (ii) as detailed in sections 2(b) and 2(c) above.
The Companies Law provides that a provision
in a company’s articles of association which permits the company to enter into a contract to insure the liability of or to
indemnify an office holder or to exempt an office holder from his or her liability to the company, or a resolution of a company’s
board of directors to indemnify an office holder with respect to the following will not be valid:
|
·
|
a breach of his or her duty of loyalty, other than, in respect of indemnification and insurance, to the extent described in Section 1(b) above;
|
|
·
|
a breach of his or her duty of care that was done intentionally or recklessly, unless the breach was done only in negligence;
|
|
·
|
an act or omission done with the intent to unlawfully realize personal gain; or
|
|
·
|
a fine, monetary sanction, forfeit or penalty imposed upon him or her.
|
The term “office holder” (or
“Noseh Misra” in Hebrew) is defined in the Companies Law as a managing director, chief executive officer, executive
vice president, vice president, any other person fulfilling or assuming any of the foregoing positions without regard to such person’s
title, as well as a director, or a manager directly subordinate to the managing director.
According to the Companies Law, granting
an exemption to, indemnification of, and procurement of insurance coverage for, an office holder of a company requires, the approval
of the company’s compensation committee and board of directors, and, in some circumstances, including if the office holder
is a director, the chief executive officer or a controlling shareholder, as defined for that purpose in the Companies Law, the
approval of the company’s shareholders, and in some cases,(such as in case of the chief executive officer, a controlling
shareholder, or approval of terms not consistent with the company’s compensation policy) with a special majority.
Our office holders are currently covered
by a directors’ and officers’ liability policy. We have also resolved to provide directors and certain other office
holders with our standard indemnification undertaking which provides for indemnification from any liability for damages caused
as a result of a breach of duty of care and provides an exemption, to the fullest extent permitted by law, all in accordance with
and pursuant to the terms set forth in the said indemnification undertaking.
Item 7. Recent Sales of Unregistered Securities
In the three years preceding the filing
of this registration statement, we have issued the following securities that were not registered under the Securities Act of 1933,
as amended, or the Securities Act:
|
1.
|
On April 14, 2015, we issued 500,000 ordinary shares in connection with our acquisition of CynoGen, Inc. (d/b/a PersonalizeDx). In addition, on July 22, 2015, we issued an addition 120,000 ordinary shares in lieu of services that were to be provided to an affiliate of CynoGen.
|
|
2.
|
On October 15, 2015, we closed a private placement transaction, pursuant to which we sold an aggregate 3,333,333 units at $2.40 per unit, with each unit consisting of (i) one ordinary share, (ii) a Series A warrant to purchase one-half of an ordinary share at an exercise price of $2.75 per ordinary share (subject to adjustment), and (iii) a partially pre-funded Series B warrant. Aegis Capital Corp. served as placement agent. In connection with the private placement, we also issued to the placement agent and its affiliates warrants to purchase a total of 100,000 ordinary shares on the same terms as the Series A warrants. All of the Series B warrants were exercised on a cashless basis for an aggregate of 2,666,489 shares.
|
|
3.
|
On November 23, 2016, we entered into a securities
purchase agreement (the “Purchase Agreement”) with a prominent institutional healthcare investor to purchase (i) an
aggregate of 91,250 of our ordinary shares (the “Shares”) at a purchase price of $6.00 per share and an aggregate
principal amount of $3.2 million of unsecured convertible debentures (the “Registered Debentures”) in a registered
direct offering (the “Registered Direct Offering”) and (ii) warrants to purchase up to 833,334 ordinary shares with
an initial exercise price of $10.20 per share (the “Warrants”) and an aggregate principal amount of $1.3 million unsecured
convertible debentures (the “PIPE Debentures” and together with the Registered Debentures, the “Debentures”)
in a concurrent private placement (the “Private Placement” and, together with the Registered Direct Offering, the
“2016 Offerings”). The initial closing of the 2016 Offerings occurred on November 29, 2016, at which time we received
gross proceeds of $3.7 million for the ordinary shares, the Registered Debentures and Warrants. The closing of the private placement
of the PIPE Debentures occurred on February 23, 2017. The closing involved the sale of the PIPE Debentures (convertible into 215,417
ordinary shares) for gross proceeds of $1.3 million. The aggregate net proceeds to the Company from the 2016 Offerings, after
deducting the placement agents’ fees and expenses and our estimated offering expenses, were approximately $4.6 million.
|
All sales of securities described above
were exempt from the registration requirements of the Securities Act in reliance on Section 4(a)(2) of the Securities Act or Regulation
D promulgated under the Securities Act, relating to transactions by an issuer not involving a public offering.
Item 8. Exhibits and Financial Statement Schedules
The following is a list of exhibits filed
as part of this Registration Statement.
Exhibit Number
|
Description of Exhibit
|
3.1(21)
|
Amended and Restated Articles of Association, as amended.
|
4.1(1)
|
Form of Share Certificate for Ordinary Shares.
|
4.2(6)
|
Registration Rights Agreement, dated November 29, 2010, by and between Rosetta Genomics Ltd. and the investors in the December 2010 private placement.
|
4.3(7)
|
Registration Rights Agreement, dated February 16, 2011, by and between Rosetta Genomics Ltd. and the investors in the February 2011 private placement.
|
4.4(8)
|
Form of Series A Warrant issued by Rosetta Genomics Ltd. to the investors and the placement agent in the October 2011 private placement.
|
4.5(8)
|
Registration Rights Agreement, dated October 13, 2011, by and between Rosetta Genomics Ltd. and the investors in the October 2011 private placement.
|
4.6(15)
|
Form of warrant issued to the placement agent in the January 2012 debt financing.
|
4.7(12)
|
Form of Purchase Option Agreement issued to Aegis Capital Corp as placement agent in the April 2012 Registered Direct Offering.
|
4.8(13)
|
Form of Purchase Option Agreement issued to Aegis Capital Corp as placement agent in the May 2012 Registered Direct Offering.
|
4.9(9)
|
Form of Purchase Option Agreement issued to Aegis Capital Corp as placement agent in the second May 2012 Registered Direct Offering.
|
4.10(15)
|
Form of Purchase Option Agreement issued to the underwriter in the August 2012 underwritten public offering.
|
4.11(16)
|
Form of Series A Warrant issued by Rosetta Genomics Ltd. to the investors and the placement agent in the October 2015 private placement.
|
4.12(16)
|
Form of Series B Warrant issued by Rosetta Genomics Ltd. to the investors in the October 2015 private placement.
|
4.12.1(17)
|
Form of Amendment to Series B Warrants issued by Rosetta Genomics Ltd. to the investors in the October 2015 private placement.
|
4.13(16)
|
Registration Rights Agreement, dated October 13, 2015, by and between Rosetta Genomics Ltd. and the investors in the October 2015 private placement.
|
4.14(16)
|
Controlled Equity Offering
SM
Sales Agreement, dated February 18, 2015, by and between Rosetta Genomics Ltd. and Cantor Fitzgerald & Co.
|
4.15(19)
|
Form of 2016 Warrant issued to investors in the 2016 Offerings.
|
4.16(19)
|
Form of Registered Debenture issued to investors in the 2016 Offerings.
|
4.17(19)
|
Form of PIPE Debenture issued to investors in the 2016 Offerings.
|
4.18(19)
|
Subsidiary Guarantee, dated November 29, 2016, issued to investors in the 2016 Offerings.
|
4.19(19)
|
Form of Placement Agent Warrant issued to the Placement Agents and affiliates in the 2016 Offerings.
|
4.20(19)
|
Registration Rights Agreement, dated November 23, 2016 between the Company and investors in the 2016 Offerings.
|
5.1(22)
|
Opinion of Amar Reiter Jeanne Shochatovitch & Co.
|
10.1(1)@
|
License Agreement, dated as of May 4, 2006, by and between Rosetta Genomics Ltd. and The Rockefeller University.
|
10.2(2)@
|
License Agreement, dated effective as of May 1, 2007, by and between Rosetta Genomics Ltd. and The Rockefeller University.
|
10.3(1)
|
Lease Agreement, dated August 4, 2003, by and between Rosetta Genomics Ltd., as tenant, and Rorberg Contracting and Investments (1963) Ltd. and Tazor Development Ltd., as landlords, as amended in April 2004 and as extended on April 9, 2006 (as translated from Hebrew).
|
10.4(10)
|
Air Commercial Real Estate Association
Standard Industrial/Commercial Single-Tenant Lease – Net, by and between Donna June Kitts Revocable Trust dated April 10,
2006 and CynoGen Inc., dated as of December 1, 2013, as amended.
|
10.5(4)
|
Lease Agreement from Wexford-UCSC II, L.P. to Rosetta Genomics Inc., dated July 7, 2008, and First Amendment thereto, dated August 11, 2008.
|
10.6(1)
|
2003 Israeli Share Option Plan.
|
10.7(11)
|
2006 Employee Incentive Plan (Global Share Incentive Plan).
|
10.8(1)
|
Form of Director and Officer Indemnification Agreement.
|
10.9(5)@
|
Amended and Restated License Agreement, dated as of March 3, 2009, by and between Rosetta Genomics Ltd. and Max Planck Innovation GmbH.
|
10.10(14)@
|
Amended and Restated License Agreement, dated August 14, 2011, by and between The Johns Hopkins University and Rosetta Genomics Ltd.
|
10.11(1)@
|
License Agreement, dated as of December 22, 2006, by and between Rosetta Genomics Ltd. and Max Planck Innovation GmbH.
|
10.12(1)@
|
Cooperation and Project Funding Agreement, dated effective as of May 1, 2006, by and among Rosetta Genomics Ltd., the Israel-United States Binational Industrial Research and Development Foundation and Isis Pharmaceuticals, Inc.
|
10.13(3)@
|
License Agreement, dated effective as of January 8, 2008, by and between Rosetta Genomics Ltd. and The Rockefeller University.
|
10.14(20)
|
Stock Purchase Agreement dated April 3, 2015, by and between Prelude Corporation and Rosetta Genomics Inc. and Rosetta Genomics Ltd.
|
10.15(17)
|
Securities Purchase Agreement, dated October 13, 2015, by and between Rosetta Genomics Ltd. and the investors in the October 2015 private placement.
|
10.16(19)
|
Securities Purchase Agreement, dated November 23, 2016, between the Company and the investors in the 2016 Offering.
|
21.1(23)
|
Subsidiaries.
|
23.1*
|
Consent of Kost Forer Gabbay & Kasierer, a member of Ernst & Young Global.
|
23.2(22)
|
Consent of Amar Reiter Jeanne Shochatovitch & Co. (included in Exhibit 5.1 to this Post-Effective Amendment No. 1 to the Registration Statement on Form F-1).
|
24.1**
|
Power of Attorney
|
101(23)
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The following materials from Rosetta Genomics Ltd.’s Annual Report on Form 20-F for the year ended December 31, 2016, formatted in XBRL (eXtensible Business Reporting Language): (i) the Consolidated Balance Sheets, (ii) the Consolidated Statements of Operations, (iii) the Consolidated Statements of Stockholders’ Equity (Deficit) and Comprehensive Income (Loss), (iv) the Consolidated Statements of Cash Flows, and (v) Notes to Consolidated Financial Statements
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*
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Filed herewith.
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**
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Previously filed.
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@
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Confidential portions of these documents have been filed separately with the SEC pursuant to a request for confidential treatment.
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(1)
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Incorporated by reference from the Registrant’s Registration Statement on Form F-1 (Reg. No. 333-137095), initially filed with the SEC on September 1, 2006.
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(2)
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Incorporated by reference from the Registrant’s Form 6-K dated August 2, 2007 (Reg. No. 001-33042), filed with the SEC on August 3, 2007.
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(3)
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Incorporated by reference from the Registrant’s Annual Report on Form 20-F for the year ended December 31, 2007 (Reg. No. 001-33042), filed with the SEC on June 26, 2008.
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(4)
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Incorporated by reference from the Registrant’s Annual Report on Form 20-F for the year ended December 31, 2008 (Reg. No. 001-33042), filed with the SEC on June 30, 2009.
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(5)
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Incorporated by reference from the Registrant’s Form 6-K dated August-September 2009 (Reg. No. 001-33042), filed with the SEC on September 9, 2009.
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(6)
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Incorporated by reference from the Registrant’s Form 6-K dated November 2010 (Reg. No. 001-33042), filed with the SEC on November 30, 2010.
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(7)
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Incorporated by reference from the Registrant’s Form 6-K dated February 2011 (Reg. No. 001-33042), filed with the SEC on February 18, 2011.
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(8)
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Incorporated by reference from the Registrant’s Form 6-K dated October 2011 (Reg. No. 001-33042), filed with the SEC on October 14, 2011.
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(9)
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Incorporated by reference from the Registrant’s Form 6-K dated May 2012 (Reg. No. 001-33042), filed with the SEC on May 25, 2012.
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(10)
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Incorporated by reference from the Registrant’s Annual Report on Form 20-F for the year ended December 31, 2013 (Reg. No. 001-33042), filed with the SEC on March 31, 2014.
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(11)
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Incorporated by reference from the Registrant’s Annual Report on Form 20-F for the year ended December 31, 2012 (Reg. No. 001-33042), filed with the SEC on March 22, 2013.
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(12)
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Incorporated by reference from the Registrant’s Form 6-K dated April 2012 (Reg. No. 001-33042), filed with the SEC on April 16, 2012.
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(13)
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Incorporated by reference from the Registrant’s Form 6-K dated April 2012 (Reg. No. 001-33042), filed with the SEC on May 17, 2012.
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(14)
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Incorporated by reference from the Registrant’s Annual Report on Form 20-F for the year ended December 31, 2011 (Reg. No. 001-33042), filed with the SEC on April 2, 2012.
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(15)
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Incorporated by reference from the Registrant’s Registration Statement on Form F-1 (Reg. No. 333-182329), filed with the SEC on June 25, 2012, as amended on July 26, 2012 and August 2, 2012.
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(16)
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Incorporated by reference from the Registrant’s Form 6-K/A (Reg. No. 001-33042), filed with the SEC on February 18, 2015.
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(17)
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Incorporated by reference from the Registrant’s Form 6-K dated October 2015 (Reg. No. 001-33042), filed with the SEC on October 14, 2015.
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(18)
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Incorporated by reference from the Registrant’s Form 6-K dated December 2015 (Reg. No. 001-33042), filed with the SEC on December 3, 2015.
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(19)
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Incorporated by reference from the Registrant’s Form 6-K dated November 2016 (Reg. No. 001-33042), filed with the SEC on November 25, 2016.
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(20)
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Incorporated by reference from the Registrant’s Annual Report on Form 20-F for the year ended December 31, 2015 (Reg. No. 001-33042), filed with the SEC on March 23, 2016.
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(21)
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Incorporated by reference from the Registrant’s Form 6-K dated March 2017 (Reg. No. 001-33042), filed with the SEC on March 16, 2017.
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(22)
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Incorporated by reference from Amendment No. 1 to the Registrant’s Registration Statement on Form F-1 (Reg. No. 333-214981), filed with the SEC on February 14, 2017.
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(23)
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Incorporated by reference from the Registrant’s Annual Report on Form 20-F for the year ended December 31, 2016 (Reg. No. 001-33042), filed with the SEC on March 30, 2017.
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Item 9. Undertakings
(a) The
undersigned Registrant hereby undertakes:
1. To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
(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.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) If
the registrant is a foreign private issuer, to file a post-effective amendment to the registration statement to include any financial
statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial
statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished,
provided
, that the
registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph
(a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date
of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective
amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Act or Rule 3-19
of this chapter if such financial statements and information are contained in periodic reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the Form F-3.
(5) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) If
the registrant is relying on Rule 430B:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date;
or
(ii) If
the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A,
shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such date of first use.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant’s Annual Report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirement of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form F-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
the City of Rehovot, State of Israel on April 25, 2017.
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ROSETTA GENOMICS LTD.
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By:
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/s/ Kenneth A. Berlin
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Kenneth A. Berlin, Chief Executive Officer and President
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Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by each of the following persons in the capacities and on the dates indicated:
Signature
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Title(s)
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Date
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/s/ Kenneth A. Berlin
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Chief Executive Officer and President
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April 25, 2017
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Kenneth A. Berlin
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(principal executive officer)
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/s/ Ron Kalfus
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Chief Financial Officer
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April 25, 2017
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Ron Kalfus
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(principal financial and accounting officer)
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*
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Chairman of the Board
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April 25, 2017
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Brian Markison
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*
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Director
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April 25, 2017
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Roy N. Davis
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*
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Director
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April 25, 2017
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Gerald Dogon
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*
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Director
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April 25, 2017
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Joshua Rosensweig
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*
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Director
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April 25, 2017
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David Sidransky, M.D.
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*
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Director
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April 25, 2017
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Tali Yaron-Eldar
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*By:
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/s/ Kenneth A. Berlin
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Attorney-in-Fact
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SIGNATURE OF AUTHORIZED REPRESENTATIVE IN
THE UNITED STATES
Pursuant to the Securities Act of 1933,
as amended, the undersigned, Rosetta Genomics Inc., the duly authorized representative in the United States of Rosetta Genomics
Ltd., has signed this registration statement on April 25, 2017.
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ROSETTA GENOMICS INC.
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By:
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/s/ Kenneth A. Berlin
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Kenneth A. Berlin, President
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