As filed with the Securities and Exchange Commission on July 14, 2021.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 20-F
| [X] | REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
| [ ] | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended _______________
OR
| [ ] | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from _____________to _____________
OR
| [ ] | SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Date of event requiring this shell company report _____________
Commission File No.:
INTERCURE LTD.
(Exact name of registrant as specified in its charter)
Not Applicable
(Translation of Registrant’s name into English)
Israel
(Jurisdiction of incorporation or organization)
85 Medinat ha-Yehudim Street
Herzliya, 4676670, Israel
(Address of principal executive offices)
Amos Cohen
85 Medinat ha-Yehudim Street
Herzliya, 4676670, Israel
Tel: +972 77 460 5012
(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
Copies to:
Mark S. Selinger, Esq. Gary Emmanuel, Esq. McDermott Will & Emery, LLP 340 Madison Avenue New York, NY 10173 (212) 547-5400 |
Ronen Kantor, Esq. Doron Tikotzky Kantor Gutman & Amit Gross B.S.R. 4 Tower, 33 Floor 7 Metsada Street, Bnei Brak 5126112 Israel Tel: +972 3 613 3371 |
Securities registered or to be registered pursuant to Section 12(b) of the Act:
| Title of each class: | Trading Symbol: | Name of each exchange on which registered or to be registered | ||
| Ordinary Shares | INCR | NASDAQ Capital Market |
Securities registered or to be registered pursuant to Section 12(g) of the Act: None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: None
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report: Not applicable.
Indicate by check mark whether Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes [ ] No [X]
If this report is an annual or transition report, indicate by check mark if Registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. Yes [ ] No [ ]
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Sections 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [ ] No [ ]
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes [ ] No [ ]
Indicate by check mark whether Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See definition of “accelerated filer”, “large accelerated filer”, and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated Filer [ ] | Accelerated Filer [ ] | Non-accelerated Filer [X] | Emerging growth company [X] |
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. [ ]
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. [ ]
Indicate by check mark which basis of accounting the Registrant has used to prepare the financial statements included in this filing:
| U.S. GAAP [ ] | International Financial Reporting Standards as issued by the International Accounting Standards Board [X] | Other [ ] |
If “Other” has been check in response to the previous question, by check mark which financial statement item Registrant has elected to follow. Item 17 [ ] Item 18 [ ]
If this is an annual report, indicate by check mark whether Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes [ ] No [ ]
INTRODUCTION
We are Intercure Ltd., an Israeli public corporation whose shares are listed for trading on the Tel Aviv Stock Exchange (“TASE”) under the symbol “INCR”. We are filing this registration statement in anticipation of the listing of our ordinary shares on Nasdaq under the symbol “INCR”.
Unless indicated otherwise by the context, all references in this registration statement to “Intercure”, the “Company”, “our Company”, “we”, “us”, “our” or the “Registrant” are to Intercure Ltd. and its subsidiaries.
Our functional currency and reporting currency is the New Israeli Shekel. Unless otherwise noted, all monetary amounts are in NIS. References to “USD,” “U.S. dollars” or “$” are to currency of the United States of America, references to “CAD” or “C$” are to Canadian dollars, and references to “NIS” are to New Israeli Shekels. References to “ordinary shares” or “Intercure Shares” are to our ordinary shares, no par value.
Effective as of April 8, 2021, we effectuated a 1-for-4.44926 capital consolidation of our outstanding ordinary shares, pursuant to which the number of our outstanding ordinary shares was decreased to 27,021,100 (“Share Consolidation”). We have adjusted all outstanding options, warrants and other rights entitling their holders to purchase ordinary shares, as required by the terms of these securities. In particular, we have reduced the conversion ratio used in the Share Consolidation, and increased the exercise price in accordance with the terms of each security based on the same ratio. The reverse stock split did not otherwise affect any of the rights currently accruing to holders of our ordinary shares, or options or warrants exercisable for our ordinary shares. All share and related option and warrant information presented in this registration statement have been retroactively adjusted to reflect the reduced number of shares outstanding and the increase in share price that resulted from the Share Consolidation. As of May 31, 2021, there were 42,735,052 ordinary shares of the Company outstanding.
EMERGING GROWTH COMPANY
As a company with less than $1.07 billion in revenue during our last fiscal year, we qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. An emerging growth company may take advantage of specified reduced reporting and other burdens that are otherwise applicable to public companies that are not emerging growth companies. For example, we have elected to rely on the following exemptions:
| ● | an exemption from complying with any requirement that may be adopted by the Public Company Accounting Oversight Board, or the PCAOB, regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements (auditor discussion and analysis); and | |
| ● | an exemption from the auditor attestation requirement in the assessment of our internal control over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act of 2002; |
We may take advantage of the exemptions available for emerging growth companies for up to five years or such earlier time that we are no longer an emerging growth company. We would cease to be an emerging growth company if we have more than $1.07 billion in annual revenue, have more than $700 million in market value of the ordinary shares held by non-affiliates, or issue more than $1.0 billion of non-convertible debt over a three-year period. We may choose to take advantage of some, but not all of these reduced burdens.
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PRESENTATION OF FINANCIAL INFORMATION
We have included in this registration statement our audited consolidated financial statements as of December 31, 2020 and 2019, and for each of the three years ended December 31, 2020. Our consolidated financial statements appearing in this registration statement are prepared in New Israeli Shekels and in accordance with International Financial Reporting Standards, or IFRS, as issued by the International Accounting Standards Board, or IASB, and are audited in accordance with the standards of the PCAOB.
Until August 2018, the Company was engaged in a single operating segment - investments in portfolio companies in the biomed sector. Since the date it acquired significant influence over Canndoc Ltd., the Company has two operating segments: (i) investments in portfolio companies in the biomed sector, and (ii) investments in companies in the medical cannabis sector.
MARKET, INDUSTRY AND OTHER DATA
This registration statement includes market and industry data and forecasts that were obtained from third-party sources, industry publications and publicly available information as well as industry data prepared by management on the basis of its knowledge of the industry in which Intercure operates (including management’s estimates and assumptions relating to the industry based on that knowledge). Management’s knowledge of the cannabis industry has been developed through its experience and participation in the industry. Management believes that its industry data is accurate and that its estimates and assumptions are reasonable, but there can be no assurance as to the accuracy or completeness of this data. Third-party sources generally state that the information contained therein has been obtained from sources believed to be reliable, but there can be no assurance as to the accuracy or completeness of such information. Although management believes it to be reliable, Intercure has neither independently verified any of the data from management or third-party sources referred to in this registration statement, nor analyzed or verified the underlying studies or surveys relied upon or referred to by such sources, or ascertained the underlying economic assumptions relied upon by such sources. In addition, assumptions and estimates of our and our industry’s future performance are necessarily subject to a high degree of uncertainty and risk due to a variety of factors, including those described in Item 3.D “Risk Factors” below.
Statements made in this registration statement concerning the contents of any contract, agreement or other document are summaries of such contracts, agreements or documents and are not complete descriptions of all of their terms. If we filed any of these documents as an exhibit to this registration statement, you may read the document itself for a complete description of its terms, and the summary included herein is qualified by reference to the full text of the document which is incorporated by reference into this registration statement.
NON-IFRS FINANCIAL MEASURES
In this registration statement, Intercure uses certain non-IFRS financial measures to measure, compare and explain the operating results and financial performance of Intercure. These measures are commonly used by companies operating in the cannabis industry as useful metrics for measuring performance. However, they do not have any standardized meaning prescribed by IFRS and are not necessarily comparable to similar measures presented by other publicly traded entities. These measures should be considered as supplemental in nature and not as a substitute for related financial information prepared in accordance with IFRS. Intercure defines such financial measures as follows:
“Adjusted EBITDA” means EBITDA adjusted for changes in the fair value of inventory, share-based payment expense, impairment losses (and gains) on financial assets, non-controlling interest and other expenses (or income);
“EBITDA” means net income (loss) before interest, taxes, depreciation and amortization; and
“EBITDA run rate” means EBITDA, annualized irrespective of the length of the applicable period.
“Run Rate Revenue” means revenue, annualized irrespective of the length of the applicable period.
These measures should not be considered in isolation or used in substitute for measures of performance prepared in accordance with IFRS. For a reconciliation of net losses from continuing operations to EBITDA and Adjusted EBITDA, please see Item 5. “Operating and Financial Review and Prospects – A. Operating Results.”
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Except for the historical information contained in this registration statement, the statements contained in this registration statement are “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and the Private Securities Litigation Reform Act of 1995, as amended, and other federal securities laws with respect to our business, financial condition and results of operations. All statements other than statements of historical fact are forward-looking statements. The use of the words “anticipate”, “believe”, “continue”, “could”, “estimate”, “expect”, “intends”, “may”, “might”, “plan”, “possible”, “potential”, “predict”, “project”, “should”, “would”, and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not a forward-looking statement. These statements involve known and unknown risks, uncertainties, and other factors that may cause actual results or events to differ materially from those anticipated or implied in such forward-looking statements. No assurance can be given that these expectations will prove to be correct and such forward-looking statements included in this registration statement should not be unduly relied upon. Any forward-looking statements are qualified in their entirety by reference to the risk factors discussed throughout this registration statement. Some of the risks, uncertainties and assumptions that could cause actual results to differ materially from estimates or projections contained in the forward-looking statements include but are not limited to:
| ● | the expected benefits and effects of listing of the Intercure Shares on the Nasdaq; | |
| ● | our ability to obtain, and the timing of, regulatory approvals to produce, manufacture, distribute, export and import pharmaceutical-grade cannabis and cannabis-based products; | |
| ● | our partner’s ability to obtain, and the timing of, regulatory approvals to produce, manufacture, distribute, export and import pharmaceutical-grade cannabis and cannabis-based products; | |
| ● | the development and regulation of cannabis and, more specifically, the medical-use cannabis industry; | |
| ● | the outcomes of preclinical studies, clinical trials and other research regarding the safety and efficacy of cannabis and the ability of such trials to increase acceptance of cannabis in the medical community; | |
| ● | the commercialization and pricing of our products; | |
| ● | our competitors’ development, marketing and sale of products that compete with our products; |
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| ● | our expectations regarding future growth, including our ability to complete the expansion of our facilities in northern Israel, southern Israel, the European Union and Canada, as well as the overall expansion of the Cannolam pharmacy chain in 2021; | |
| ● | our estimates regarding the growth of the Israeli medical cannabis market (including the number of patients); | |
| ● | our ability to enter into arrangements with distributors, including any required regulatory approvals; | |
| ● | our ability to develop an active trading market for the Intercure Shares and whether the market price of the Intercure Shares is volatile; | |
| ● | our ability to execute our growth strategies; | |
| ● | our competitive position within the industry; | |
| ● | expectations for regulatory and competitive factors related to the cannabis industry generally, including the permanent export permit from the Israeli Medical Cannabis Agency (the “IMCA”) and Israeli authorities, as well as the ability to obtain import permits into Israel for future cannabis shipments; | |
| ● | the listing or continued listing of the Intercure Shares; | |
| ● | the provisions in the Intercure Articles; | |
| ● | the number of Intercure Shares outstanding and the potential forfeiture of certain Intercure Shares acquired by the Founders; | |
| ● | expectations regarding future director and executive compensation levels and plans; | |
| ● | the continuing anticipated and potential adverse impacts resulting from the COVID-19 pandemic; | |
| ● | expected industry trends; | |
| ● | general economic trends; | |
| ● | fluctuations in foreign exchange rates; and | |
| ● | fluctuations in interest rates. |
The foregoing list sets forth some, but not all, of the factors that could affect our ability to achieve results described in any forward-looking statements. You should read this registration statement and the documents that we reference herein and have filed as exhibits to the registration statement completely and with the understanding that our actual future results may be materially different from what we expect. You should assume that the information appearing in this registration statement is accurate as of the date hereof. Because the risk factors referred to in Item 3.D. “Risk Factors” of this registration statement, could cause actual results or outcomes to differ materially from those expressed in any forward-looking statements made by us or on our behalf, you should not place undue reliance on any forward-looking statements. Further, any forward-looking statement speaks only as of the date on which it is made, and we undertake no obligation to update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect the occurrence of unanticipated events. New factors emerge from time to time, and it is not possible for us to predict which factors will arise. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements. We qualify all of the information presented in this registration statement, and particularly our forward-looking statements, by these cautionary statements.
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TABLE OF CONTENTS
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| ITEM 1. | IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS |
| A. | Directors and Senior Management. |
For the names, business addresses and functions of our directors and senior management, see “Item 6. Directors, Senior Management and Employees – A. Directors and Senior Management” and “Item 6. Directors, Senior Management and Employees – C. Board Practices.”
| B. | Advisers. |
Our principal United States legal advisors are McDermott Will & Emery LLP, located at 340 Madison Avenue, New York, NY 10173-1922. Our principal Israeli legal advisers are Doron Tikotzky Kantor Gutman & Amit Gross, located at B.S.R. 4 Tower, 33 Floor 7 Metsada Street Bnei Brak 5126112, Israel.
| C. | Auditors. |
The financial statements as of December 31, 2020 and 2019, and for each of the three years ended December 31, 2020 included in this registration statement have been audited by Somekh Chaikin (member firm of KPMG International), an independent registered public accounting firm, as stated in their report appearing herein. Somekh Chaikin are located at 17 Ha’arba’a Street, Tel Aviv, Israel.
| ITEM 2. | OFFER STATISTICS AND EXPECTED TIMETABLE |
Not applicable.
| ITEM 3. | KEY INFORMATION |
| A. | Selected Financial Data. |
The following selected consolidated statements of loss and other comprehensive loss data for the years ended December 31, 2020, 2019 and 2018 and the selected consolidated statements of financial position data as of December 31, 2020 and 2019, are derived from our audited consolidated financial statements set forth elsewhere in this registration statement.
The selected consolidated financial data should be read in conjunction with the financial statements and accompanying notes thereto contained elsewhere in this registration statement and discussions in Item 5, “Operating and Financial Review and Prospects”. The selected consolidated financial data set out below may not be indicative of our future performance.
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For the year ended December 31 | ||||||||||||
| 2020 | 2019 | 2018 | ||||||||||
| NIS in thousands | ||||||||||||
| Consolidated Statements of Loss and Other Comprehensive Loss Data | ||||||||||||
| Revenue | 65,035 | 8,926 | - | |||||||||
| Cost of sales(1) | 34,649 | 7,456 | - | |||||||||
| Gross profit before effect of fair value | 30,386 | 1,470 | ||||||||||
| Gross income after effect of fair value | 31,975 | 1,479 | - | |||||||||
| Research and development expenses | 1,576 | 1,710 | - | |||||||||
| General and administrative expenses | 18,601 | 80,109 | 9,810 | |||||||||
| Selling and marketing expenses | 8,440 | 2,693 | - | |||||||||
| Other expenses (income), net | 4,563 | (58,962 | ) | 324 | ||||||||
| Company’s share in the profit or loss of associate | - | 340 | 1 | |||||||||
| Changes in the fair value of financial assets through profit or loss, net | 37,195 | (20,996 | ) | 577 | ||||||||
| Operating loss | 38,400 | 3,415 | 10,712 | |||||||||
| Total finance expenses (income), net | (92 | ) | 3,151 | 2,092 | ||||||||
| Loss before tax | 38,308 | 6,566 | 12,798 | |||||||||
| Taxes on income | 2,268 | 673 | - | |||||||||
| Total comprehensive loss for the year | 36,040 | 5,893 | 12,798 | |||||||||
| Attribution of net loss for the year: | ||||||||||||
| To the Company’s shareholders | 37,231 | 5,893 | 12,798 | |||||||||
| To non-controlling interests | (1,191 | ) | - | - | ||||||||
| Total | 36,040 | 5,893 | 12,798 | |||||||||
| Loss per share | ||||||||||||
| Basic and diluted loss | (1.42 | ) | (0.25 | ) | (0.71 | ) | ||||||
(1) Cost of sales includes adjustments to reflect changes in the fair value of biological assets and the realized portion of changes in the fair value of biological assets on inventory sold.
| As of December 31 | ||||||||
| 2020 | 2019 | |||||||
| NIS in thousands | ||||||||
| Consolidated Statements of Financial Position Data | ||||||||
| Cash and cash equivalents | 37,888 | 27,338 | ||||||
| Total assets | 326,270 | 282,233 | ||||||
| Total liabilities | 34,161 | 26,032 | ||||||
| Total equity | 292,109 | 256,201 | ||||||
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| B. | Capitalization and Indebtedness. |
The following table sets forth our capitalization as of December 31, 2020. You should read this information together with our historical financial information and other information provided in this registration statement, including Item 5. “Operating and Financial Review and Prospects” and our unaudited consolidated financial statements and notes thereto set forth elsewhere in this registration statement.
| As of December 31, 2020 | ||||
| NIS in thousands | ||||
| Cash and cash equivalents | 37,888 | |||
| Current liabilities | 29,877 | |||
| Loan from related party | 241 | |||
| Share capital, premium and other reserves | 452,259 | |||
| Capital reserve for transactions with controlling shareholder | 2,388 | |||
| Receipts on account of shares | 11,017 | |||
| Accumulated loss | (191,158 | ) | ||
| Equity attributable to owners of the Company | 274,506 | |||
| Non-controlling interests | 17,603 | |||
| Total equity | 292,109 | |||
| C. | Reasons for the Offer and Use of Proceeds. |
Not applicable.
| D. | Risk Factors. |
Investing in our ordinary shares involves a high degree of risk. You should carefully consider the risks and uncertainties described below, in addition to the other information set forth in this registration statement, including the consolidated financial statements and the related notes included elsewhere in this registration statement, before purchasing our ordinary shares. If any of the following risks actually occurs, our business, financial condition, cash flows and results of operations could be negatively impacted. In that case, the trading price of our ordinary shares would likely decline and you might lose all or part of your investment. Additional risks and uncertainties not presently known to us or that we currently deem immaterial also may impair our business operations.
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Summary Risk Factors
Investing in our ordinary shares involves a high degree of risk, as fully described below. The principal factors and uncertainties that make investing in our ordinary shares risky, include, but are not limited to:
| ● | The medical-use cannabis industry in Israel and other countries is highly regulated; | |
| ● | We are dependent upon regulatory approvals and licenses for our ability to produce and distribute our pharmaceutical-grade cannabis products; | |
| ● | Research on the effects of cannabis has been limited. | |
| ● | We compete for market share with companies that may have longer operating histories, more financial resources, and greater manufacturing and marketing experience than us. | |
| ● | Legal and illegal use of cannabis for non-medical purposes may have a significant negative effect on the medical-use cannabis industry and our pharmaceutical-grade cannabis business. | |
| ● | Our business is subject to, or may become subject to, a variety of U.S. and foreign laws relating to the production and distribution of cannabis, many of which are unsettled and still developing, and which could subject us to claims or otherwise harm our business. | |
| ● | We are subject to risks inherent in an agricultural business, which include the risk of crop failure. | |
| ● | We have a limited operating history upon which investors can evaluate our future prospects. | |
| ● | We may be adversely impacted by the failure of any of our joint ventures. | |
| ● | We may be unable to comply with all safety, health and environmental regulations applicable to our operations and the medical-use cannabis industry. | |
| ● | Our pharmaceutical-grade cannabis-based products may be subject to recalls and we may be subject to product liability claims. | |
| ● | We may experience breaches of security at our facilities or losses as a result of, but not limited to, theft. | |
| ● | If we sustain cyber-attacks or other privacy or data security incidents that result in security breaches that disrupt our operations or result in the unintended dissemination of protected personal information or proprietary or confidential information, or we are found by regulators to be non-compliant with statutory requirements for protection and storage of personal data, we could suffer a loss of revenue and increased costs, exposure to significant liability, reputational harm and other serious negative consequences. | |
| ● | Third-party manufacturers and distributors may not successfully carry out their contractual duties or meet regulatory requirements. | |
| ● | We may not be able to secure adequate or reliable sources of funding required to operate our business or increase our production to meet patient demand for our products. | |
| ● | We will incur increased costs as a result of operating as a public company in the U.S. | |
| ● | We intend to follow the reduced disclosure requirements applicable to emerging growth companies. | |
| ● | We are a “foreign private issuer” and intend to follow certain home country corporate governance practices. | |
| ● | We may not be able to successfully execute strategic alliances or transactions. | |
| ● | International expansion of our business exposes us to business, regulatory, political, operational, financial, economic and other potential risks associated with doing business outside of Israel. | |
| ● | Tax and accounting requirements may change in ways that are unforeseen to us and we may face difficulty or be unable to implement or comply with any such changes. | |
| ● | A breakdown in our information technology systems could result in a significant disruption to our business. | |
| ● | Future sales or distributions of our securities could cause the market price for our ordinary shares to fall. |
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| ● | We may be subject to risks related to the protection and enforcement of intellectual property rights, and may become subject to allegations that we or our joint venture partners are in violation of intellectual property rights of third parties. | |
| ● | A competitor may discover or misappropriate our trade secrets and other intellectual property. | |
| ● | Intellectual property rights of third parties could adversely affect our ability to commercialize our products. | |
| ● | We may not realize the full benefit of preclinical studies or clinical trials using our GMP-certified products for various indications. | |
| ● | We may not own intellectual property developed under joint venture arrangements. | |
| ● | Potential political, economic and military instability in the State of Israel, where our senior management, our head executive office and production facilities are located, may adversely affect our results of operations. | |
| ● | Our operations may be disrupted as a result of the obligation of Israeli citizens to perform military service. | |
| ● | Your rights and responsibilities as our shareholder will be governed by Israeli law, which may differ in some respects from the rights and responsibilities of shareholders of U.S. corporations. | |
| ● | Provisions of Israeli law may delay, prevent or otherwise impede a merger with us, or an acquisition of us, which could prevent a change of control, even when the terms of such a transaction are favorable to us and our shareholders. | |
| ● | We may not be able to enforce covenants not to compete under applicable laws, and therefore we may be unable to prevent our competitors from benefiting from the expertise of some of our former employees. In addition, employees may be entitled to seek compensation for their inventions irrespective of their agreements with us, which in turn could impact our future profitability. | |
| ● | Investors may have difficulties enforcing a U.S. judgments against us or our executive officers and directors, or asserting U.S. securities laws claims in Israel. | |
| ● | Our results of operations may be harmed by currency fluctuations and inflation. | |
| ● | Our operations may be affected by negative labor conditions in Israel. | |
| ● | Under our amended and restated articles of association, if any person acquires, holds, or has control of or direction over more than 4.99% of our outstanding ordinary shares at any time without receiving prior approval from the IMCA, the ordinary shares held by that person in excess of such limit will automatically become dormant shares. | |
| ● | We have not paid dividends on our ordinary shares and, therefore, unless our traded securities appreciate in value, our investors may not benefit from holding our securities. | |
| ● | Our U.S. shareholders may suffer adverse tax consequences if we are characterized as a passive foreign investment company, or PFIC, for U.S. federal income tax purposes. |
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Risks Related to Our Pharmaceutical-Grade Cannabis Business and the Medical-Use Cannabis Industry
The medical-use cannabis industry in Israel and other countries is highly regulated and new laws or regulations or changes to existing laws or regulations or changes in their enforcement or application could materially and adversely affect our business.
The successful execution of our pharmaceutical-grade cannabis business objectives is contingent upon our compliance with all applicable laws and regulatory requirements in Israel and other jurisdictions, including our ability to obtain all required regulatory approvals for our production and distribution activities involving our pharmaceutical-grade cannabis and cannabis-based products.
The administration, application and enforcement of the regime established by the IMCA or the administration, application and enforcement of the laws of other countries by the appropriate regulators in those countries, on us and our business may significantly delay or impact our ability to participate in the Israeli medical-use cannabis market or medical-use cannabis markets outside of Israel, and to produce and distribute pharmaceutical-grade cannabis and cannabis-based products for medical use.
Further, the medical-use cannabis industry is a relatively new industry globally and regulation of cannabis for medical use is likely to evolve significantly. The regulatory authorities in the countries in which we operate through our joint ventures, or to which we may export our pharmaceutical-grade cannabis or cannabis-based products, and those in which we plan to operate in in the future, may change the administration, interpretation or application of applicable regulations or their compliance or enforcement procedures at any time. Any such changes could require us to revise our business operations, including our compliance procedures or planned procedures, requiring us to incur increased costs and expend additional resources. There is no assurance that we will be able to comply or continue to comply with the laws and regulations of all of the jurisdictions in which we currently operate or plan to have operations in in the future.
We are, and will continue to be, dependent upon regulatory approvals and licenses for our ability to produce, import and distribute our pharmaceutical-grade cannabis products, and these regulatory approvals are subject to ongoing compliance requirements, reporting obligations and fixed terms requiring renewal.
Our ability to produce, import and distribute our pharmaceutical-grade cannabis products for medical use in Israel is dependent on licenses and certifications issued by the IMCA to us. We or our business partners hold the following licenses related to the breeding, cultivation, manufacturing, distribution and security of pharmaceutical-grade cannabis in Israel: Israel Medical Cannabis—Good Agriculture Practices, or IMC-GAP; Israel Medical Cannabis—Good Manufacturing Practices, or IMC-GMP; Israel Medical Cannabis—Good Distribution Practices, or IMC-GDP; and Israel Medical Cannabis—Good Security Practices, or IMC-GSP.
We hold licenses to breed and cultivate pharmaceutical-grade cannabis in Israel. In addition, in our primary facilities in Southern and Northern Israel, the production processes implemented are certified under the IMC-GAP and IMC-GSP standards. In addition, inspectors routinely assess our facilities for compliance with applicable regulatory requirements. For example, our facility in northern Israel is subject to at least one inspection each calendar quarter.
In January 2019, the Israeli government approved the export of pharmaceutical-grade cannabis and cannabis products. We anticipate that exports will begin once guidelines and processes are finalized by the relevant Israeli government agencies later this year, although the finalization process may take longer than anticipated. We may be required to obtain and maintain certain permits, licenses or other approvals from regulatory agencies in Israel in order to export our products out of Israel. In addition, the import of our pharmaceutical-grade cannabis products into other jurisdictions, such as Germany, the United Kingdom and other European Union member states, is subject to the regulatory requirements of each respective jurisdiction. In addition, the export and import of pharmaceutical-grade cannabis is subject to United Nations treaties establishing country-by-country quotas and our export and import permits are subject to these quotas, which could limit the amount of pharmaceutical-grade cannabis we can export to any particular country.
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We have entered into agreements with a licensed producer with pharmaceutical production and manufacturing facilities in Denmark and a pharmaceutical distributor in Germany. As part of these agreements, we plan to establish channels for the distribution of our pharmaceutical-grade cannabis products throughout the European Union, subject to compliance with regulatory requirements for marketing products in the European Union market under the Good Manufacturing Practices of the European Union, or EU-GMP standards. Our partner in Denmark holds an official license, granted by the Danish Medicines Agency for the production of cannabis and has a fully operational cultivation facility certified under the EU-GMP standards.
During 2020, the Company completed the registration process for several products cultivated through the Company’s partnership in Denmark, which products are now registered in Germany under the Federal Institute for Drugs and Medical Devices (BfArM) and are authorized for sale in Germany. The first sales of the Company’s branded products in the German market are forecasted for the fourth quarter of 2021. The company plans to eventually obtain essential regulatory licenses in order to be able to buy, sell and distribute Medical cannabis in other EU countries.
We have agreed to establish a joint venture with our partner in Canada, held 51-49 by us, for the production and distribution of pharmaceutical-grade cannabis-based products for medical use in Canada and, after receiving EU-GMP certification, the European Union. Our Canadian partner has finished construction on an indoor cultivation facility and is awaiting the final manufacturing and production license from Health Canada to commercially grow pharmaceutical-grade cannabis.
As a result, until the regulatory requirements are met, none of our products will be distributed through any of our partnerships. In addition, the continuation or expansion of our international operations depends on our ability to renew or secure permits, licenses or other approvals. In the event that we, or our partners, are found not to be in compliance with any applicable authorities, regulations, or conditions, we and our partners’ existing licenses and any new licenses that we may obtain may be revoked or restricted. Should we fail to qualify for licenses or certifications under any of these authorities, should we fail to comply with any applicable regulatory requirements or with conditions set out under our licenses, should our licenses not be renewed when required, or be renewed on different terms, or should our licenses be revoked, we may be unable to execute our business plan. This would have a broad impact on us and could have a material adverse effect on our businesses, financial condition, results of operations and prospects and, as a result, investors could lose all or most of their investment. In addition, any such action could also cause us significant reputational harm, which, in turn, could seriously harm us.
In addition, if we fail to comply with applicable regulatory requirements, we may be subject to enforcement proceedings in any jurisdiction in which we conduct our business, which may result in damage awards, a suspension of our existing approvals, a withdrawal of our existing approvals, the denial of the renewal of our existing licenses or any future approvals, recalls of our products, product seizures, the imposition of future operating restrictions on our business or operations or the imposition of civil or criminal fines or penalties against us, our officers and directors and other parties. These enforcement actions could divert management’s attention and resources away from our business operations and delay or entirely prevent us from continuing our business as planned.
Furthermore, our strategic partnerships with leading brands (Tilray, Organigram, Aphria, Fotmer) depends on our ability to obtain the required import/export permits of cannabis and cannabis-based products into Israel and/or other countries. Any regulatory decision to postpone such permits may negatively impact our ability to operate our partnerships effectively and profitably.
Furthermore, our pharmacy operations (via Cannolam) are operating in accordance to the IMCA regulations as of the date of this registration statement, which limits a patients’ ability to fill their prescriptions to only those authorized pharmacies. Any changes to this regulation that will revoke and change the place of issuance and sales of the medical cannabis products, can impact our pharmacy operations and expansion plans for the future.
Our operations at the Northern Kibbutz Facility and the Southern Kibbutz Facility involve a partnership with two kibbutz entities that have provided their lease to the land as part of the partnership. These leases to the land are subject to regulatory approval.
In both our Northern Kibbutz Facility and Southern Kibbutz Facility, our partners are Kibbutz entities that were granted a lease for their land by the Land Administration. The leases authorize use of the land for agriculture purposes. In order to verify that the Kibbutz does not use the land for other purposes, every partnerships needs to be approved in advance and pursuant to Agricultural Settlement Law, must obtain an excessive use permit.
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We hold such excessive use permits for both facilities, with the one applicable to the Northern Kibbutz Facility valid until 2027 and the one applicable to the Southern Kibbutz Facility valid until 2025. We do not currently believe that those permits will not be renewed when they expire. However, the renewal of these permits is subject to approval, which may or may not be granted and may be subject to additional restrictions, in each case, potentially impacting our ability to operate the facilities profitably.
Research on the effects of cannabis has been limited and future clinical trials may be expensive, time consuming, uncertain, susceptible to change, delay or termination, and may lead to conclusions that dispute or conflict with our understanding and belief regarding the medical benefits, viability, safety, efficacy and dosing of cannabis.
Research regarding the medical benefits, viability, safety, efficacy and dosing of cannabis or specific cannabinoids such as cannabidiol, or CBD, and tetrahydrocannabinol, or THC, remains in relatively early stages and there have been only a few clinical trials that have been conducted on these topics. We have not completed any clinical trials using cannabis or cannabis-based products to date. We have received IMCA feasibility approval to initiate nine clinical trials and we have commenced one phase 3 clinical trial. We initiated a phase 3 clinical trial in a leading Israeli medical center to study our product’s influence on cognitive and adjacent capabilities on children who are on the autistic spectrum. The phase 3 trial results are expected in 2022. The other nine clinical trials have not started and are expected to begin during 2022 or 2023.
Clinical trials are expensive, time consuming and difficult to design and implement. We may not be able to complete all or any of the clinical trials that we have planned. Further, the results of preclinical testing and clinical trials are uncertain, and a product can fail at any stage of clinical development. Even if the results of our clinical trials are favorable, clinical trials for a number of our products may continue for several years and may take significantly longer to complete. The testing process can take many years and may include post-marketing studies and surveillance, which could result in substantial additional expense.
The results contained in the articles, reports and studies referenced in this registration statement are not necessarily predictive of future results. Future research and clinical trials may draw opposing conclusions or may reach different or negative conclusions regarding the medical benefits, viability, safety, efficacy, dosing or other facts and perceptions related to the use of cannabis as a treatment for a medical indication. This could result in restrictions on the distribution of our products, the loss of regulatory approval for an approved medical indication, or an adverse effect on the social acceptance of cannabis for medical use or the demand for our pharmaceutical-grade cannabis products.
The medical-use cannabis industry and market may not continue to exist or develop as we anticipate and we may ultimately be unable to succeed in this industry and market.
We are operating our current business in a relatively new industry, and our success depends on the continued growth of this market as well as our ability to attract and retain patients. Demand for pharmaceutical-grade cannabis and cannabis-based products is dependent on a number of social, political and economic factors that are beyond our control. Our projections on the number of people who have the potential to benefit from treatment with pharmaceutical-grade cannabis or cannabis-based products are based on our beliefs and estimates. These estimates have been derived from a variety of sources, including scientific literature, surveys of clinics, and market research, and may prove to be incorrect. There is no assurance that an increase in existing demand will occur, that we will benefit from any such increased demand, or that our business will remain profitable even in the event of such an increase in demand.
In addition to being subject to the general business risks applicable to a business involving an agricultural product and a regulated medical product, we need to continue to build brand awareness within the medical-use cannabis industry and make significant investments in our business strategy and production capacity. These investments include introducing new pharmaceutical-grade cannabis and cannabis-based products into the markets in which we operate, adopting quality assurance protocols and procedures, building our international presence and undertaking regulatory compliance efforts. These activities may not promote our pharmaceutical-grade cannabis and cannabis-based products as effectively as intended, or at all, and we expect that our competitors will undertake similar investments to compete with us for market share.
Competitive conditions, physician preferences, patient requirements and spending patterns in the medical-use cannabis industry and market are relatively unknown and may have be uniquely impacted by circumstances unlike those in other existing industries and markets. Our target patient population may be smaller than expected, may not be otherwise amenable to treatment with our products, or may become increasingly difficult to identify and access. Further, we may not be successful in our efforts to attract and retain patients, develop new pharmaceutical-grade cannabis and cannabis-based products, produce and distribute these products to the markets in which we operate or to which we export in time to be effectively commercialized. In order to be successful in these activities, we may be required to expend significantly more resources than we currently anticipate, which could adversely affect our business, financial condition, results of operations and prospects.
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We compete for market share with companies that may have longer operating histories, more financial resources, and greater manufacturing and marketing experience than us.
We face competition from many different sources, including companies that produce and distribute cannabis for medical use, as well as major pharmaceutical, specialty pharmaceutical and biotechnology companies. We anticipate intensifying competition in the medical-use cannabis industry as new jurisdictions allow for the production and distribution of cannabis products, new therapies are approved and advanced technologies become available.
We currently compete directly with other licensed producers of pharmaceutical-grade cannabis and cannabis-based products in Israel. In the future, we expect to compete with licensed producers who choose to distribute pharmaceutical-grade cannabis products in fully regulated jurisdictions, such as European Union member states. In Canada, we plan to compete with licensed producers who decide to market their products in the medical-use market. Many of our competitors have substantially greater financial, technical and human resources than us. Competitors may also have more experience developing, obtaining regulatory approval for, and marketing products or treatments in the markets where we operate or where we are planning to operate. These factors could give our competitors an advantage in their ability to recruit and retain qualified personnel, produce products that meet regulatory standards, and commercialize their products.
It is possible that the medical-use cannabis industry will undergo consolidation, creating larger companies with financial resources, production, manufacturing, distribution and commercialization capabilities and product offerings that are greater than ours. As a result of any of these factors, we may be unsuccessful in conducting our business as we currently envision, or at all.
The legal and illegal use of cannabis for non-medical purposes may have a significant negative effect on the medical-use cannabis industry and our pharmaceutical-grade cannabis business.
The jurisdictions in which we plan to operate may legalize the production, manufacturing, distribution and purchase of cannabis for non-medical use. As a result, individuals who currently rely upon the medical-use cannabis market to supply pharmaceutical-grade cannabis and cannabis-based products for their medical treatment may instead seek cannabis and cannabis-based products through alternative-use cannabis markets. In addition, many regulatory regimes permit patients to produce a limited amount of cannabis for their own medical purposes or to designate a person to produce a limited amount of cannabis on their behalf for such purposes. Widespread use of these markets or methods for obtaining cannabis or cannabis-based products could reduce the current or future consumer demand for our pharmaceutical-grade cannabis and cannabis-based products.
We also compete with unlicensed and unregulated cannabis market participants, including individuals or groups that are able to produce cannabis without a license, illegal dispensaries and black market participants selling cannabis and cannabis-based products. These competitors may be able to offer products with higher concentrations of certain cannabinoids than we are authorized to produce and may sell and use delivery methods, including edibles, concentrates and extract vaporizers, that we are currently prohibited from offering in the medical-use cannabis market. The competition presented by these unregulated participants, the willingness of patients to purchase unregulated products in lieu of purchasing from licensed producers for any reason, or any inability of law enforcement authorities to enforce existing laws prohibiting the unlicensed production and distribution of cannabis and cannabis-based products, could adversely affect our market share, result in increased competition through the black market for cannabis or have an adverse impact on the public perception of the medical-use cannabis industry and licensed cannabis producers and distributors. As a result of the alternative avenues available for the production and sale of cannabis, we may incur reduced sales and revenue.
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We are exposed to risks related to the laws of various countries as a result of our international operations.
We currently plan to expand our operations across multiple countries. As a result, we will be exposed to political, economic, legal and other risks and uncertainties associated with operating in or exporting to various jurisdictions. These risks and uncertainties include, but are not limited to, changes in the laws, regulations and policies governing the production, sale and use of pharmaceutical-grade cannabis and cannabis-based products, political instability, currency controls, fluctuations in currency exchange rates and rates of inflation, labor unrest, changes in taxation laws, regulations and policies, restrictions on foreign exchange and repatriation and changing political conditions and governmental regulations relating to foreign investment and the medical-use cannabis industry more generally.
Any changes to the laws, regulations and policies, general economic policies, or political attitude related to the advertising, production, sale and use of cannabis and cannabis-based products for medical use may adversely affect the operations or profitability of our international operations. Specifically, our operations may be affected to varying degrees by government regulations with respect to, but not limited to, restrictions on advertising, production, price controls, export controls, controls on currency remittance, increased income taxes, restrictions on foreign investment, land and water use restrictions and government policies rewarding contracts to local competitors or requiring domestic producers or vendors to purchase supplies from a particular jurisdiction. Failure to comply strictly with applicable laws, regulations and local practices could result in additional taxes, costs, civil or criminal fines or penalties or other expenses being levied on our international operations, as well as other potential adverse consequences such as the loss of necessary permits or governmental approvals.
Furthermore, although we plan to facilitate the export of our pharmaceutical-grade cannabis-based products to countries in the European Union, there is no assurance that these countries will authorize the import of our pharmaceutical-grade cannabis and cannabis-based products, or that Israel or any location from which we produce our products will authorize or continue to authorize such exports. Each country in the European Union (or elsewhere) may impose restrictions or limitations on imports that require the use of, or confer significant advantages upon, producers within that particular country. As a result, we may be required to establish production facilities in those countries in the European Union in which we wish to distribute our pharmaceutical-grade cannabis and cannabis-based products in order to take advantage of any legislation that favors producers located in these countries. As a result, we may be required to utilize less efficient production methods and expend significantly more resources than we currently anticipate.
Our business is subject to, or may become subject to, a variety of U.S. and foreign laws relating to the production and distribution of cannabis, many of which are unsettled and still developing, and which could subject us to claims or otherwise harm our business.
We are subject to, or may become subject to, a variety of laws in the United States, Israel and elsewhere. In the United States, despite cannabis having been legalized at the state level for medical use in many states and for adult use in a number of states, cannabis continues to be categorized as a Schedule I controlled substance under the federal Controlled Substances Act, or the CSA, and subject to the Controlled Substances Import and Export Act, or the CSIEA. We may engage in activities in the United States involving certain corporate and administrative matters, including accounting, legal and creative activities, as well as the offer and sale of our securities and the anticipated listing of our securities on the Nasdaq. We do not produce, manufacture or distribute any cannabis or cannabis-based products in the United States. Therefore, we do not believe that, as a result of our engaging in any of the aforementioned activities, we would be subject to the CSA or CSIEA. Nonetheless, violations of any U.S. federal laws and regulations, such as the CSA and the CSIEA, could result in significant fines, penalties, administrative sanctions, convictions or settlements arising from civil proceedings initiated by either the U.S. federal government or private citizens or criminal charges, including, but not limited to, the disgorgement of profits, cessation of business activities or divestiture.
We are subject to, or may become subject to, a variety of laws and regulations in the United States, Israel and elsewhere that prohibit money laundering, including the Money Laundering Control Act (United States), as amended, and the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by governmental authorities in the United States, Israel or any other jurisdiction in which we have business operations or to which we export. Although we believe that none of our activities implicate any applicable money laundering statutes, in the event that any of our business activities, any dividends or distributions therefrom, or any profits or revenue accruing thereby are found to be in violation of money laundering statutes, such transactions may be viewed as proceeds of crime under one or more of the statutes described above or any other applicable legislation, and any persons, including such U.S.-based investors, found to be aiding and abetting us in such violations could be subject to liability. Any violations of these laws, or allegations of such violations, could disrupt our operations, involve significant management distraction and involve significant costs and expenses, including legal fees. We could also suffer severe penalties, including criminal and civil penalties, disgorgement and other remedial measures.
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We, or the medical-use cannabis industry more generally, may receive unfavorable publicity or become subject to negative patient, physician or investor perception.
We believe that the medical-use cannabis industry is highly dependent upon positive patient, physician or investor perception regarding the benefits, safety, efficacy and quality of the cannabis distributed to patients for medical use. Perception of the medical-use cannabis industry, pharmaceutical-grade cannabis and cannabis-based products, currently and in the future, may be significantly influenced by scientific research or findings, regulatory investigations, litigation, political statements, media attention and other publicity (whether or not accurate or with merit) both in Israel and in other countries relating to the use of cannabis or cannabis-based products for medical purposes, including unexpected safety or efficacy concerns arising with respect to pharmaceutical-grade cannabis or cannabis-based products or the activities of medical-use cannabis industry participants.
There can be no assurance that future scientific research, findings, regulatory proceedings, litigation, media attention or other research findings or publicity will be favorable to the medical-use cannabis market or any particular pharmaceutical-grade cannabis or cannabis-based product or will be consistent with prior publicity. Adverse future scientific research reports, findings and regulatory proceedings that are, or litigation, media attention or other publicity that is, perceived as less favorable than, or that questions, earlier research reports, findings or publicity (whether or not accurate or with merit) could result in a significant reduction in the demand for our pharmaceutical-grade cannabis-based products or cannabis for medical use more generally. Further, adverse publicity reports or other media attention regarding the safety, efficacy and quality of cannabis for medical purposes, or our current or future products specifically, or associating the use of cannabis with illness or other negative effects or events, could adversely affect us. This adverse publicity could arise even if the adverse effects associated with cannabis or cannabis-based products resulted from products that are not derived from pharmaceutical-grade cannabis or a patient’s failure to use such products legally, appropriately or as directed.
We are subject to risks inherent to an agricultural business, which include but are not limited to the risk of crop failure.
We currently breed, cultivate and process pharmaceutical-grade cannabis for medical use at our facilities in southern and northern Israel. Our business is subject to the risks inherent to the agricultural business, including the risks of crop failure presented by weather, insects, plant diseases and similar agricultural factors. There can be no assurance that natural elements, such as insects and plant diseases, will not interrupt our production activities or have an adverse effect on our business. If such disruption of operations at our facilities should occur, it could significantly interfere with our ability to continue our development and production activities.
Additionally, our products have a limited shelf storage life. Our bulk pharmaceutical-grade cannabis products have a shelf life of approximately six to 12 months, and our pharmaceutical-grade cannabis oil products have a shelf life of approximately two to three years. Supply chain disruptions or limited sales may lead to product spoilage or could impair our ability to meet future demand, which may cause harm to the reputation of our brand and our business.
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General Business Risks and Risks Related to Our Financial Condition and Operations
We have a limited operating history upon which investors can evaluate our future prospects.
We have a limited operating history upon which investors may evaluate the future prospects of our business plan. Our business and prospects must be considered in light of the potential risks, problems, delays, uncertainties and complications encountered in connection with the development of a relatively new business and the creation of a new industry. The risks include, but are not limited to, the possibility that we will not be able to develop functional and scalable products, or that although functional and scalable, our products will not be economical to commercialize; that our competitors hold proprietary rights that preclude us from marketing such products; that our competitors commercialize a superior or equivalent product; that we are not able to upgrade and develop new technologies or enhanced products; or the failure to receive necessary regulatory clearances for our operations and products. To successfully introduce and distribute products at a profit, we must establish brand name recognition and competitive advantages for our products. There can be no assurance that we can successfully address these challenges. If we are unsuccessful, we and our business, financial condition and operating results could be materially and adversely affected.
Our current and future expense levels are based largely on estimates of planned operations and future revenues. It is difficult to accurately forecast future revenues because the medical-use cannabis market has not been fully developed, and we can give no assurance that our products will continue to fuel revenue growth. If our forecasts prove incorrect, our business, operating results and financial condition will be materially and adversely affected. Moreover, we may be unable to adjust our spending in a timely manner to compensate for any unanticipated reduction in the revenue we expect to generate from our products. Consequently, any failure to generate revenues may immediately and adversely affect our business, financial condition and operating results.
We have had negative cash flow from operating activities for the years ended December 31, 2020 and December 31, 2019
We had negative cash flow from operating activities for the year ended December 31, 2020 and December 31, 2019. There is no assurance that any of Intercure’s operations will generate earnings, operate profitably or provide a return on investment in the future. Accordingly, we may be required to obtain additional financing in order to meet its future cash commitments.
We may be adversely impacted by the failure of any of our joint ventures or by our failure, or the failure of our joint venture partners, to fulfill obligations to the joint venture.
We are a party to several joint ventures, and may in the future enter into new joint ventures. We currently depend on our joint ventures to produce, manufacture and distribute our products outside of Israel. Our joint ventures face all of the inherent risks associated with production, manufacturing, distribution and operations. In addition, we face the risk that either we, or our joint venture partners, will not meet our obligations under the joint venture agreements. If one of our joint venture partners fails to fulfill its obligations due to strategic business interests, financial conditions or any other reason, we may be required to spend additional resources, or we may not be able to continue such operations, in which case we may suffer losses. Such expenses or losses may be significant and may have an adverse effect on our financial position or results of operations.
Our investments in our current or future joint ventures may be adversely affected by our lack of sole decision-making authority and disputes between us and our joint venture partners.
Under the terms of our joint venture agreements, we are not in a position to exercise sole decision-making authority regarding the joint venture. Our joint venture partners may have different economic or other business interests or goals that are inconsistent with our business interests and goals, and may take actions contrary to our policies or objectives, which may result in poor or delayed business decisions. The dissolution of a joint venture could lead to uncertainties, disputes or other issues with respect to each of the joint venture partners’ rights.
If we are not able to comply with all safety, health and environmental regulations applicable to our operations and the medical-use cannabis industry, we may be held liable for any breaches of those regulations.
Safety, health and environmental laws and regulations affect nearly all aspects of our operations, including product development, working conditions, waste disposal, emission controls, the maintenance of air and water quality standards and land reclamation, and, with respect to environmental laws and regulations, impose limitations on the generation, transportation, storage and disposal of solid and hazardous waste. Continuing to meet the standards for pharmaceutical-grade cannabis and cannabis-based products requires satisfying additional standards for the conduct of our operations and subjects us or our partners to ongoing compliance inspections in respect of these standards. Compliance with safety, health and environmental laws and regulations can require significant expenditures, and any failure to comply with such safety, health and environmental laws and regulations may result in the imposition of fines and penalties, the temporary or permanent suspension of operations, the imposition of clean-up costs resulting from contaminated properties, the imposition of damages and the loss of or refusal of governmental authorities to issue permits or licenses to us or our partners or to certify us or our partners compliance with applicable standards, including the IMC-GAP, IMC-GMP, IMC-GDP or IMC-GSP standards in Israel. Exposure to these liabilities may arise in connection with our existing operations, our historical operations and operations that may in the future be closed or sold to third parties. We could also be held liable for worker exposure to hazardous substances and for accidents causing injury or death. There can be no assurance that we will at all times be in compliance with all safety, health and environmental laws and regulations notwithstanding our attempts to comply with such laws and regulations.
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Changes in any applicable safety, health and environmental laws or regulations may impose stricter standards and enforcement, increased fines and penalties for non-compliance, more stringent environmental assessments of proposed projects and a heightened degree of responsibility for companies and their officers, directors and employees. We are not able to determine the specific impact that any future changes in safety, health or environmental laws or regulations may have on our industry, operations and activities and our resulting financial position; however, we anticipate that capital expenditures and operating expenses will increase in the future as a result of the implementation of new and increasingly stringent safety, health and environmental laws and regulations. Further changes in safety, health and environmental laws and regulations, new information on existing safety, health and environmental conditions or other events, including legal proceedings based upon such conditions or an inability to obtain necessary permits in relation thereto, may require increased compliance expenditures by us.
We may not be able to transport our pharmaceutical-grade cannabis-based products using methods that are safe, efficient and that comply with applicable regulations.
We depend on fast and efficient third-party transportation services to distribute our pharmaceutical-grade cannabis and cannabis-based products. Any prolonged disruption of third-party transportation services could have a material adverse effect on our sales volumes or our patients’ satisfaction with our products. Rising costs associated with third-party transportation services used by us to transport our products may also adversely impact our profitability, and more generally our business, financial condition and results of operations.
Further, the transportation of our products is subject to strict security standards. As a result, we anticipate that as we expand our global distribution, we may be subject to the increase in costs associated with meeting these standards. A breach of security during transport or delivery could result in the loss of high-value products and forfeiture of import and export approvals, since such approvals are specific to each shipment. Any failure to take the steps necessary to ensure the safekeeping of our pharmaceutical-grade cannabis-based products could also have an impact on our ability to continue operating under our existing licenses, to renew or receive amendments to our existing licenses or to receive new licenses.
Our pharmaceutical-grade cannabis-based products may be subject to recalls for a variety of reasons, which could require us to expend significant management and capital resources.
Manufacturers and distributors of products are sometimes subject to the recall or return of their products for a variety of reasons, including product defects, such as contamination, adulteration, unintended harmful side effects or interactions with other substances, packaging safety and inadequate or inaccurate labeling disclosure. Although we have detailed procedures in place for testing our finished pharmaceutical-grade cannabis-based products, there can be no assurance that any quality, potency or contamination problems will be detected in time to avoid unforeseen product recalls, regulatory action or lawsuits, whether frivolous or otherwise. If any of the cannabis-based products produced by us are recalled due to an alleged product defect or for any other reason, we could be required to incur the unexpected expense of the recall and any legal proceedings that might arise in connection with the recall. As a result of any such recall, we may lose a significant amount of sales and may not be able to replace those sales at an acceptable margin or at all. In addition, a product recall may require significant management attention or damage our reputation and goodwill or that of our products or our brand.
Additionally, product recalls may lead to increased scrutiny of our operations by regulatory agencies, requiring further management attention, increased compliance costs and potential legal fees, fines, penalties and other expenses. Any product recall affecting the medical-use cannabis industry more broadly, whether or not involving us, could also lead consumers to lose confidence in the safety and quality of pharmaceutical-grade cannabis and cannabis-based products generally, including products sold by us.
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We may be subject to product liability claims or regulatory action if our products are alleged to have caused significant loss or injury. This risk is exacerbated by the fact that cannabis use may increase the risk of serious adverse side effects.
We face the risk of exposure to product liability claims, regulatory action and litigation if our products are alleged to have caused loss or injury. We may be subject to these types of claims due to allegations that our products caused or contributed to injury or illness, failed to include adequate instructions for use or failed to include adequate warnings concerning possible side effects or interactions with other substances. This risk is exacerbated by the fact that cannabis use may increase the risk of developing schizophrenia and other psychoses, symptoms for individuals with bipolar disorder, and other side effects. Previously unknown adverse reactions resulting from human consumption of cannabis-based products alone or in combination with other medications or substances could also occur. In addition, the manufacture and sale of cannabis-based products, like the manufacture and sale of any product, involves a risk of injury to patients due to tampering by unauthorized third parties or product contamination.
We may in the future have to recall certain of our pharmaceutical-grade cannabis or cannabis-based products as a result of potential contamination or quality assurance concerns. A product liability claim or regulatory action against us could result in increased costs and could adversely affect our reputation and goodwill with our patients and consumers generally. There can be no assurance that we will be able to maintain product liability insurance on acceptable terms or with adequate coverage against potential liabilities. Such insurance is expensive and may not be available in the future on acceptable terms, or at all. Our inability to obtain sufficient insurance coverage on reasonable terms or to otherwise protect against potential product liability claims could result in us becoming subject to significant liabilities that are uninsured and could also adversely affect our commercial arrangements with third parties.
Significant interruptions in our access to certain key inputs such as raw materials, electricity, water and other utilities may impair our cultivation of pharmaceutical-grade cannabis.
Our business is dependent on a number of key inputs and their related costs, including raw materials, supplies and equipment related to our operations, as well as electricity, water and other utilities. Any significant interruption, price increase or negative change in the availability or economics of the supply chain for key inputs and, in particular, rising or volatile energy costs could curtail or preclude our ability to continue production. In addition, our operations would be significantly affected by any such prolonged interruption.
Our ability to compete and produce pharmaceutical-grade cannabis is dependent on us having access, at a reasonable cost and in a timely manner, to skilled labor, equipment, parts and components. No assurances can be given that we will be successful in maintaining our required supply of labor, equipment, parts and components.
We may be unable to attract or retain key personnel with sufficient experience in the cannabis industry, and we may be unable to attract, develop and retain additional employees required for our development and future success.
Our success is largely dependent on the performance of our management team and certain key employees and our continuing ability to attract, develop, motivate and retain highly qualified and skilled employees. Qualified individuals are in high demand, and we may incur significant costs to attract and retain them. The loss of the services of any of our key personnel, including Alexander Rabinovich, our Chief Executive Officer and director, and Ehud Barak, our Chairman, or an inability to attract other suitably qualified persons when needed, could prevent us from executing on our business plan and strategy, and we may be unable to find adequate replacements on a timely basis, or at all. We do not currently maintain key-person insurance on the lives of any of our key personnel.
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We may become subject to liability arising from any fraudulent or illegal activity by our employees, contractors, consultants and others.
We are exposed to the risk that our employees, independent contractors, consultants, and business partners may engage in fraudulent or other illegal activity. Misconduct by these parties could include intentional undertakings of unauthorized activities, or reckless or negligent undertakings of authorized activities, in each case on our behalf or in our service that violate: (i) government regulations, including, in Israel, the IMCA regulations; (ii) manufacturing standards; (iii) healthcare laws and regulations; (iv) laws that require the true, complete and accurate reporting of financial information or data; (v) U.S. federal laws banning the possession, sale or importation of cannabis into the United States and prohibiting the financing of activities outside the United States that are unlawful under Israeli or other foreign laws or (vi) the terms of our agreements with insurers. In particular, we could be exposed to class action and other litigation, increased regulatory inspections and related sanctions, the loss of current compliance certifications for our products, including, in Israel, IMC-GAP, IMC-GMP, IMC-GDP or IMC-GSP certifications, or the inability to obtain future certifications, lost sales and revenue or reputational damage as a result of prohibited activities that are being undertaken in the production or manufacturing processes of our products without our knowledge or permission and contrary to our internal policies, procedures and operating requirements.
We cannot always identify or prevent misconduct by our employees or other third parties, including service providers and business partners, and the precautions taken by us to detect and prevent this activity may not be effective in controlling unknown, unanticipated or unmanaged risks or losses or in protecting us from government investigations or other actions or lawsuits stemming from such misconduct. If any such actions are instituted against us, and we are not successful in defending ourselves or asserting our rights, those actions could have a significant impact on our business, including the imposition of civil, criminal or administrative penalties, damages, monetary fines and contractual damages, reputational harm, diminished profits and future earnings or curtailment of our operations.
We may experience breaches of security at our facilities or losses as a result of, but not limited to, theft.
Because of the nature of, the limited legal channels of distribution for, and the volume of inventory of our products in our facilities, we are subject to the risk of theft of our product as well as other security breaches.
In this regard, in December 2020, there was an attempt in our Southern Kibbutz facility. The security systems at the facility worked well and prevented the incident, in addition, nearby forces of the army and the Israeli police arrived at the scene immediately after the incident began. No damage was caused to the facility and nothing was stolen from it.
A security breach at one of our facilities could result in a significant loss of available product, expose us to additional liability under applicable regulations and to potentially costly litigation or increase our expenses relating to the resolution and future prevention of similar thefts, any of which could have an adverse effect on our business, financial condition and results of operations.
We engage with third parties that provide us services as part of the production process, some of whom are our competitors, and as a result of our commercial relationship with them, we may disclose information that may be contrary to Antitrust Laws.
We rely on third parties to provide us with certain necessary services for the production of our branded products. Some of those parties are also our competitors with respect to several aspects of our business. We are sensitive to this issue and have internal policies and procedures that are designed to prevent the sharing of competitive information and our agreements with our competitors make this clear. However, despite our best efforts to safeguard this information, should we inadvertently disclose competitive information, we may be found to be in violation of the Israeli antitrust law, and could be subject to sanctions and civil or criminal penalties, which will have a negative financial impact on us and harm our reputation.
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If we sustain cyber-attacks or other privacy or data security incidents that result in security breaches that disrupt our operations or result in the unintended dissemination of protected personal information or proprietary or confidential information, or if we are found by regulators to be non-compliant with statutory requirements for the protection and storage of personal data, we could suffer a loss of revenue, increased costs, exposure to significant liability, reputational harm and other serious negative consequences.
We routinely process, store and transmit large amounts of data in our operations, including protected personal information as well as proprietary or confidential information relating to our business and third parties. We have programs in place to detect, contain and respond to data security incidents and provide employee awareness training around phishing, malware and other cyber risks to protect, to the greatest extent possible, against cyber risks and security breaches. However, because the techniques used to obtain unauthorized access, disable or degrade service, or sabotage systems change frequently and may be difficult to detect for long periods of time, we may be unable to anticipate these techniques or implement adequate preventive measures. Experienced computer programmers and hackers may be able to penetrate our layered security controls and misappropriate or compromise our protected personal information or proprietary or confidential information or that of third parties, create system disruptions or cause system shutdowns. They also may be able to develop and deploy viruses, worms and other malicious software programs that attack our systems or otherwise exploit any security vulnerabilities. Hardware, software, or applications we develop or procure from third parties may contain defects in design or manufacture or other problems that could unexpectedly compromise information security. Our facilities may also be vulnerable to security incidents or security attacks, acts of vandalism or theft, coordinated attacks by activist entities, misplaced or lost data, human errors, or other similar events that could negatively affect our systems and our customer’s data.
There are a number of laws protecting the confidentiality of certain patient health information, including patient records, and restricting the use and disclosure of such protected information. In particular, the privacy rules in Israel, and similar laws in other applicable jurisdictions, protect medical records and other personal health information by limiting the use and disclosure of such health information to the minimum level reasonably necessary to accomplish the intended purpose. We collect and store personal information about our patients and are responsible for protecting that information from privacy breaches. A privacy breach may occur through a procedural or process failure, a technology malfunction or deliberate unauthorized intrusions. Theft of data for competitive purposes, particularly patient lists and preferences, is an ongoing risk whether perpetrated through employee collusion or negligence or through deliberate cyber-attack. The costs to eliminate or address the foregoing security threats and vulnerabilities before or after a cyber-incident could be material. Our remediation efforts may not be successful and could result in interruptions, delays, or cessation of services and the loss of existing or potential customers. In addition, breaches of our security measures and the unauthorized dissemination of sensitive personal information, proprietary information or confidential information about us or our customers or other third-parties, could expose our customers’ private information and our customers to the risk of financial or medical identity theft, or expose us or other third-parties to a risk of loss or misuse of this information, result in litigation and potential liability for us, damage to our brand and reputation, or otherwise harm our business.
We are further required to comply with requirements with respect to the storage, protection and access to personal data on our systems, as well as with respect to the registration of our databases containing personal information. Non-compliance with such requirements could result in sanctions, litigation and potential liability for us, damage to our brand and reputation, or otherwise harm our business.
We plan to rely on third parties to conduct certain elements of our production and distribution and to perform other tasks for us. If these third parties do not successfully carry out their contractual duties, meet expected deadlines or comply with regulatory requirements, we may not be successful in commercializing our products.
We plan to rely upon third-party vendors for our ongoing services including the manufacturing of our products. We also plan to rely on third-party distributors, including pharmaceutical distributors and other courier services, and may in the future rely on other third parties, to distribute our products. These vendors will not be our employees and we will control only certain aspects of their activities. However, we may be responsible for ensuring that their services are performed in accordance with the applicable protocol, or in accordance with legal, regulatory and scientific standards, including, for manufacturers, the relevant GMP standards. Our reliance on these vendors may not relieve us of our responsibilities under applicable regulations, and if our vendors fail to meet these standards, we may suffer adverse consequences, including liability resulting from litigation, damage to our brand and reputation, or other harms to our business.
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Further, our vendors may fail to devote sufficient resources to the provision of services to us, including the manufacturing and distribution of our products, and the performance of such services may be delayed or interrupted. Failure to meet projected deadlines may delay or diminish the sale of our products. Damage to our products, such as product spoilage, could expose us to potential product liability, damage our reputation and the reputation of our brand or otherwise harm our business.
If any of our relationships with these third-party vendors terminate, we may not be able to enter into arrangements with alternative vendors or do so on commercially reasonable terms. Replacing or adding additional vendors involves additional cost and requires management time and focus. In addition, during the transition period when a new vendor commences work, delays may occur. Such delays can materially impact our ability to meet our desired development timelines. Though we carefully manage our relationships with our vendors, we may encounter similar challenges or delays in the future, which could have a material adverse impact on our business, financial condition and prospects. If these third-party service providers do not successfully perform their contractual duties, or if their performance is substandard, we may not be successful in commercializing our products and our revenue from product sales could be negatively impacted.
We may be unable to sustain our revenue growth and development.
Our revenue has grown in recent years. Our ability to sustain this growth will depend on a number of factors, many of which are beyond our control, including, but not limited to, the availability of sufficient capital on suitable terms, changes in laws and regulations respecting the production and distribution of our pharmaceutical-grade cannabis-based products, competition, the size of alternative markets, including the black market and the legal adult-use markets, and our ability to produce sufficient volumes of our pharmaceutical-grade cannabis-based products to meet patient demand. In addition, we are subject to a variety of business risks generally associated with developing companies. Future development and expansion could place significant strain on our management personnel and will likely require us to recruit additional management personnel, and there is no assurance that we will be able to do so.
We may be unable to expand our operations quickly enough to meet demand or manage our operations beyond their current scale.
There can be no assurance that we will be able to manage effectively our expanding operations, which may include increasing our production capabilities, adding manufacturing capabilities, adding distribution channels and entering into joint ventures or partnerships. We may be unable to sustain or accelerate our growth or such growth, if achieved, may not result in profitable operations. We may be unable to attract and retain the management personnel necessary for continued growth or we may not be successful in our strategic investments in joint ventures or acquisitions.
We may not be able to secure adequate or reliable sources of the funding required to operate our business or increase our production to meet patient demand for our products.
The continued development of our business will require additional financing, and there is no assurance that we will obtain the financing necessary to be able to achieve our business objectives. Our ability to obtain additional financing will depend on investor demand, our performance and reputation, market conditions and other factors. Our inability to raise such capital could result in the delay or indefinite postponement of our current business objectives or in our inability to continue to carry on our business. There can be no assurance that additional capital or other types of financing will be available if needed or that, if available, the terms of such financing will be favorable to us.
In addition, from time to time, we may enter into transactions to acquire assets or the capital stock or other equity interests of other entities. Our continued growth may be financed, wholly or partially, with debt, which may increase our debt levels above industry standards. Any debt financing secured in the future could involve restrictive covenants relating to capital raising activities and other financial and operational matters, which may make it more difficult for us to obtain additional capital and to pursue business opportunities, including potential acquisitions. Debt financings may also contain provisions that, if breached, may entitle lenders or their agents to accelerate repayment of loans, and there is no assurance that we would be able to repay such loans in such an event or prevent the enforcement of security granted pursuant to any such debt financing.
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We will incur increased costs as a result of operating as a public company listed on both a Canadian and U.S. national securities exchange and our management will be required to devote substantial time to new compliance initiatives.
As a public company listed on a U.S. and Canadian national securities exchange, particularly after we are no longer an emerging growth company, we will incur significant legal, accounting and other expenses that we did not incur as a private company. In addition, the Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley Act, and rules implemented by the U.S. Securities and Exchange Commission, or the SEC, and the Nasdaq Capital Market, impose various requirements on public companies, including requirements to file annual reports with respect to our business and financial condition and operations and establish and maintain effective disclosure and financial controls and corporate governance practices. Our management and other personnel have limited experience operating as a public company, which may result in operational inefficiencies or errors, or a failure to improve or maintain effective internal controls over financial reporting, or ICFR, and disclosure controls and procedures, or DCP, necessary to ensure the timely and accurate reporting of operational and financial results. Our existing management team will need to devote a substantial amount of time to these compliance initiatives, and we may need to hire additional personnel to assist us with complying with these requirements. Moreover, these rules and regulations will increase our legal and financial compliance costs and will make some activities more time consuming and costly.
Pursuant to Section 404 of the Sarbanes-Oxley Act, or Section 404, we will be required to furnish a report by our management on our ICFR, which, after we are no longer an emerging growth company, must be accompanied by an attestation report on ICFR issued by our independent registered public accounting firm. To achieve compliance with Section 404 within the prescribed period, we will document and evaluate our ICFR, which is both costly and challenging. In this regard, we will need to continue to dedicate internal resources, potentially engage outside consultants and adopt a detailed work plan to assess and document the adequacy of our ICFR, continue steps to improve control processes as appropriate, validate through testing that controls are functioning as documented and implement a continuous reporting and improvement process for ICFR. Despite our efforts, there is a risk that neither we nor our independent registered public accounting firm will be able to conclude within the prescribed timeframe that our ICFR is effective as required by Section 404. This could result in a determination that there are one or more material weaknesses in our ICFR, which could cause an adverse reaction in the financial markets due to a loss of confidence in the reliability of our consolidated financial statements.
In addition, changing laws, regulations and standards relating to corporate governance and public disclosure are creating uncertainty for public companies, increasing legal and financial compliance costs and making some public company required activities more time consuming. These laws, regulations and standards are subject to varying interpretations, in many cases due to their lack of specificity and, as a result, their application in practice may evolve over time as new guidance is provided by regulatory and governing bodies. This could result in continuing uncertainty regarding compliance matters and higher costs necessitated by ongoing revisions to disclosure and governance practices. We intend to invest resources to comply with evolving laws, regulations and standards, and this investment may result in increased general and administrative expenses and divert management’s time and attention from revenue generating activities to compliance activities. If our efforts to comply with new laws, regulations and standards differ from the activities intended by regulatory or governing bodies, regulatory authorities may initiate legal proceedings against us and our business may be harmed.
We also expect that being listed on a U.S. national securities exchange and complying with applicable rules and regulations will make it more expensive for us to obtain director and officer liability insurance, and we may be required to incur substantially higher costs to obtain and maintain the same or similar coverage that is currently in place. These factors could also make it more difficult for us to attract and retain qualified executive officers and members of our board of directors.
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We are an emerging growth company and the reduced disclosure requirements applicable to emerging growth companies may make our ordinary shares less attractive to investors.
We are an emerging growth company, as defined in the JOBS Act, and we may take advantage of certain exemptions from various requirements that are applicable to other public companies that are not emerging growth companies. For as long as we remain an emerging growth company we are permitted and intend to rely on exemptions from certain disclosure requirements that are applicable to other public companies that are not “emerging growth companies.” These exemptions include:
| ● | not being required to comply with the auditor attestation requirements in the assessment of our internal control over financial reporting; and | |
| ● | not being required to comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements. |
We may take advantage of these provisions for up to five years or such earlier time that we are no longer an emerging growth company. We would cease to be an emerging growth company upon the earlier to occur of: (1) the last day of the fiscal year in which we have total annual gross revenue of $1.07 billion or more; (2) the date on which we have issued more than $1.0 billion in nonconvertible debt during the previous three years; or (3) the date on which we are deemed to be a large accelerated filer under the rules of the SEC. We may choose to take advantage of some but not all of these reduced burdens, and therefore the information that we provide holders of our ordinary shares may be different from the information you might receive from other public companies in which you hold equity. In addition, Section 107 of the JOBS Act also provides that an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards applicable to public companies. However, given that we currently report and expect to continue to report under IFRS as issued by the IASB, the extended transition period available to emerging growth companies that report under GAAP is inapplicable to us.
When we are no longer deemed to be an emerging growth company, we will not be entitled to the exemptions provided in the JOBS Act discussed above. We cannot predict if investors will find our ordinary shares less attractive as a result of our reliance on exemptions under the JOBS Act. If some investors find our ordinary shares less attractive as a result, there may be a less active trading market for our ordinary shares and our share price may be more volatile.
As a “foreign private issuer,” we are permitted, and intend, to follow certain home country corporate governance practices instead of otherwise applicable SEC and Nasdaq Capital Market requirements, which may result in less protection than is accorded to investors under rules applicable to domestic U.S. issuers.
We are a “foreign private issuer” and are not subject to the same requirements that are imposed upon U.S. domestic issuers by the SEC. Under the Exchange Act, we will be subject to reporting obligations that, in certain respects, are less detailed and less frequent than those of U.S. domestic reporting companies. For example, we will not be required to issue quarterly reports or proxy statements that comply with the requirements applicable to U.S. domestic reporting companies. Furthermore, although under regulations promulgated under the Companies Law, as an Israeli public company listed overseas we will be required to disclose the compensation of our five most highly compensated office holders on an individual basis (rather than on an aggregate basis), this disclosure will not be as extensive as that required of U.S. domestic reporting companies. We will also have four months after the end of each fiscal year to file our annual reports with the SEC and will not be required to file current reports as frequently or promptly as U.S. domestic reporting companies. Furthermore, our officers, directors and principal shareholders will be exempt from the requirements to report transactions and short-swing profit recovery required by Section 16 of the Exchange Act. Also, as a “foreign private issuer,” we are not subject to the requirements of Regulation FD (Fair Disclosure) promulgated under the Exchange Act. These exemptions and leniencies will reduce the frequency and scope of information and protections available to investors in comparison to those applicable to a U.S. domestic reporting companies.
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In addition, as a “foreign private issuer,” we are permitted to follow certain home country corporate governance practices instead of those otherwise required under the listing rules of the Nasdaq for domestic U.S. issuers. For instance, we follow home country practice in Israel with regard to, independence requirements for our board of directors, director nomination procedures, and compensation committee matters. In addition, we will follow our home country law instead of the listing rules of the Nasdaq that require that we obtain shareholder approval for certain dilutive events, such as the establishment or amendment of certain equity based compensation plans, an issuance that will result in a change of control of our company, certain transactions other than a public offering involving issuances of a 20% or greater interest in the company, and certain acquisitions of the stock or assets of another company. We may in the future elect to follow home country corporate governance practices in Israel with regard to other matters. Following our home country corporate governance practices as opposed to the requirements that would otherwise apply to a U.S. company listed on the Nasdaq may provide less protection to investors than what would otherwise be accorded to investors under the listing rules of the Nasdaq applicable to domestic U.S. issuers.
We would lose our foreign private issuer status if (i) a majority of our shares come to be owned by U.S. residents and (ii) a majority of our directors or executive officers are U.S. citizens or residents or we fail to meet the additional requirements necessary to avoid the loss of foreign private issuer status. The regulatory and compliance costs to us under U.S. securities laws as a U.S. domestic issuer may be significantly higher than what we would otherwise incur as a foreign private issuer.
We may not be able to successfully identify and execute strategic alliances or other relationships with third parties or to successfully manage the impacts of acquisitions, dispositions or relationships on our operations.
We currently have, and may expand the scope of, and may in the future enter into, strategic alliances with third parties that we believe will complement or augment our existing business. Our ability to complete further such strategic alliances is dependent upon, and may be limited by, among other things, the availability of suitable candidates and capital. In addition, strategic alliances could present unforeseen integration obstacles or costs, may not enhance our business and may involve risks that could adversely affect us, including the investment of significant amounts of management time that may be diverted from operations in order to pursue and complete such transactions or maintain such strategic alliances. Future strategic alliances could result in the incurrence of debt, costs and contingent liabilities, and there can be no assurance that these future strategic alliances will achieve, or that our existing strategic alliances will continue to achieve, the expected benefits to our business or that we will be able to consummate future strategic alliances on satisfactory terms, or at all.
Although we do not currently plan to engage in other material strategic transactions, such as acquisitions, we may from time to time consider such transactions. Material strategic transactions involve a number of risks, including: (i) the potential disruption of our ongoing business; (ii) the distraction of management away from the ongoing oversight of our existing business activities; (iii) incurring additional indebtedness; (iv) the anticipated benefits and cost savings of those transactions not being realized fully, or at all, or taking longer to realize than anticipated; (v) an increase in the scope and complexity of our operations and (vi) the loss or reduction of control over certain of our assets. A strategic transaction may result in a significant change in the nature of our business, operations and strategy, and we may encounter unforeseen obstacles or costs in implementing a strategic transaction or integrating any acquired business into our operations.
International expansion of our business exposes us to the business, regulatory, political, operational, financial, economic and other potential risks associated with doing business outside of Israel.
Other than our headquarters, production facilities and other operations located in Israel, we currently have limited international operations, but our business strategy incorporates potentially significant international expansion. We plan to enter into both strategic relationships, such as joint ventures for the production and distribution of our products and third-party distribution arrangements, and to conduct general business activities outside of Israel. Conducting business internationally involves a number of risks, including, but not limited to:
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| ● | failure by us to obtain the regulatory approvals for the use of our products in various countries; | |
| ● | multiple, conflicting and changing laws and regulations affecting the medical-use cannabis industry, such as governmental approvals, permits, and licenses, export and import restrictions, tax laws, privacy regulations, employment laws and other regulatory requirements; | |
| ● | limits in our ability to penetrate international markets; | |
| ● | difficulties in staffing and managing international operations; | |
| ● | financial risks, such as longer payment cycles, difficulty collecting accounts receivable, the impact of local and regional financial crises on demand and payment for our products and exposure to foreign currency exchange rate fluctuations; | |
| ● | complexities and difficulties in obtaining protection and enforcing our intellectual property and risks associated with potential infringement of relevant third-party patent or other intellectual property rights; | |
| ● | natural disasters, political and economic instability, including wars, terrorism, and political unrest, outbreak of disease, boycotts, curtailment of trade, and other business restrictions; | |
| ● | certain expenses including, but not limited to, expenses for travel, translation and insurance; and | |
| ● | regulatory and compliance risks that relate to maintaining accurate information and control over sales and activities that may fall within the purview of the books and records provisions or anti-bribery provisions or the U.S. Foreign Corrupt Practices Act, or within the purview of other similar laws. |
Any of these factors could significantly harm our future international expansion and operations and, consequently, our results of operations.
Tax and accounting requirements may change in ways that are unforeseen to us and we may face difficulty or be unable to implement or comply with any such changes.
We are subject to numerous tax and accounting requirements, and changes in existing accounting or taxation rules or practices, or varying interpretations of current rules or practices, could have a significant adverse effect on our financial results, the manner in which we conduct our business or the marketability of any of our products. We currently have international operations and plan to expand such operations in the future. These operations, and any expansion thereto, will require us to comply with the tax laws and regulations of multiple jurisdictions, which may vary substantially. Complying with the tax laws of these jurisdictions can be time consuming and expensive and could potentially subject us to penalties and fees in the future if we were to fail to comply.
A breakdown in our information technology systems could result in a significant disruption to our business.
Our operations are highly dependent on our information technology systems. If we were to suffer a breakdown in our systems, storage, distribution or tracing, we could experience significant disruptions affecting all our areas of activity, including our research, accounting and billing processes and potentially our production processes. We may also suffer from a partial loss of information or data due to such disruption.
We face operational risk.
Operational risk is the risk that a direct or indirect loss may result from an inadequate or failed technology, from a human process or from external events. The impact of this loss may be financial loss, loss of reputation or legal and regulatory proceedings. Management endeavors to minimize losses in this area by ensuring that effective infrastructure and controls exist. These controls are constantly reviewed and if deemed necessary improvements are implemented.
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Our performance will be subject to fluctuations in foreign exchange rates.
As foreign exchange rates fluctuate, our financial results may be impacted as a material amount of our revenue is generated in NIS. Therefore, if the value of the NIS decreases, our results as measured in US Dollars or Canadian Dollars will also decrease.
We are subject to privacy and information security risks.
There are a number of laws protecting the confidentiality of certain patient health information and other personal information, including patient records, and restricting the use and disclosure of that protected information. In particular, the Israeli privacy protection law and, once applicable, the privacy rules under the Personal Information Protection and Electronics Documents Act (Canada), or PIPEDA, or the European Unions’ General Data Protection Regulation, or GDPR, and similar laws in other jurisdictions, protect medical records and other personal health information by limiting their use and disclosure to the minimum level reasonably necessary to accomplish the intended purpose. We collect and store personal information about our Israeli patient and are responsible for protecting that information from privacy breaches. As of the date of this registration statement, we have two (2) registered databases pursuant to Israeli privacy protection laws, one for Canndoc’s patient and one for Cannolam patients. A privacy breach may occur through a procedural or process failure, an IT malfunction or deliberate unauthorized intrusions. Theft of data for competitive purposes, particularly patient lists and preferences, is an ongoing risk whether perpetrated through employee collusion, negligence or through a deliberate cyber-attack. If we are found to be in violation of the privacy or security rules under the Israeli privacy protection law or other laws protecting the confidentiality of patient health information, including as a result of data theft and privacy breaches, we could be subject to sanctions and civil or criminal penalties, which could have a negative financial impact and harm our reputation.
The market price for our shares may be volatile and could decline in value.
The market price of our shares could be subject to significant fluctuations after Closing. Some of the factors that may cause the market price of our shares to fluctuate include:
| ● | volatility in the market price and trading volume of comparable companies; | |
| ● | actual or anticipated changes or fluctuations in operating results or in the expectations of market analysts; | |
| ● | adverse market reactions to any indebtedness we may incur or securities we may issue in the future; | |
| ● | short sales, hedging and other derivative transactions in our shares; | |
| ● | litigation or regulatory action against us; | |
| ● | investors’ general perception of us and the public’s reaction to our press releases, and other public announcements and our filings with Canadian securities regulators, including the filing of our financial statements; | |
| ● | publication of research reports or news stories about us, our competitors or our industry; | |
| ● | positive or negative recommendations or withdrawal of research coverage by securities analysts; | |
| ● | changes in general political, economic, industry and market conditions and trends; | |
| ● | sales of our shares by existing shareholders; | |
| ● | recruitment or departure of key personnel; | |
| ● | significant acquisitions or business combinations, strategic partnerships, joint ventures or capital commitments by or involving us or our competitors; and | |
| ● | the other risk factors described in this section of this registration statement. |
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Additionally, these factors, as well as other related factors, may cause decreases in asset values that are deemed to be other than temporary, which may result in impairment losses to us. As well, certain institutional investors may base their investment decisions on consideration of our environmental, governance and social practices and performance against such institutions’ respective investment guidelines and criteria, and failure to satisfy such criteria, may result in limited or no investment in our shares by those institutions, which could materially adversely affect the trading price of our shares. There can be no assurance that continuing fluctuations in price and volume will not occur. If such increased levels of volatility and market turmoil continue for a protracted period of time, our operations and the trading price of our shares may be materially adversely effected.
In addition, broad market and industry factors may harm the market price of our shares. Hence, the price of our shares could fluctuate based upon factors that have little or nothing to do with us, and these fluctuations could materially reduce the price of our shares regardless of our operating performance. In the past, following a significant decline in the market price of a company’s securities, there have been instances of securities class action litigation having been instituted against that company. If we become was involved in any similar litigation, we could incur substantial costs, its management’s attention and resources could be diverted and it could harm our business, operating results and financial condition.
If securities or industry analysts do not publish research or publish inaccurate or unfavorable research about us or our business, our shares trading price and volume could decline.
The trading market for our shares will depend in part on the research and reports that securities or industry analysts publish about us or our business. If no securities or industry analysts commence covering our company, the trading price for our shares would be negatively impacted. If we obtain securities or industry analyst coverage and if one or more of the analysts who cover our company downgrade our shares or publish inaccurate or unfavorable research about our business, our shares trading price may decline. If one or more of these analysts cease coverage of our company or fails to publish reports on our company regularly, demand for our shares could decrease, which could cause our share trading price and volume to decline.
Our equity compensation plan may adversely impact our financial results.
The Equity Incentive Plan permits the grant of options. Under applicable accounting standards, we may be required to record a liability and a related expense in our financial statements for potential future cash settlements of equity compensation awards. The recording of this liability could have an adverse impact on and create volatility in our financial results and, in turn, could adversely impact the trading price of our shares.
We may be subject to legal proceedings from time to time.
Legal proceedings may arise from time to time in the course of our business. All industries are subject to legal claims, with and without merit. Such legal claims may be brought against us or one or more of our subsidiaries in the future from time to time. Defense and settlement costs of legal claims can be substantial, even with respect to claims that have no merit. Due to the inherent uncertainty of the litigation process, such processes could take away from management time and effort and the resolution of any particular legal proceeding to which we may become subject could have a material adverse effect on our financial position and results of operations.
Certain events or developments in the Regulated Cannabis industry more generally and social media may impact our reputation.
Damage to our reputation can be the result of the actual or perceived occurrence of any number of events, and could include any negative publicity, whether true or not. Cannabis has often been associated with various other narcotics, violence and criminal activities, the risk of which is that our business might attract negative publicity. There is also risk that the action(s) of other participants, companies and service providers in the cannabis industry may negatively affect the reputation of the industry as a whole and thereby negatively impact our reputation.
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The increased usage of social media and other web-based tools used to generate, publish and discuss user-generated content and to connect with other users has made it increasingly easy for individuals and groups to communicate and share opinions and views in regards to issuers and their activities, whether true or not and the cannabis industry in general, whether true or not. Negative posts or comments about us on any social network could damage our reputation. In addition, employees or others might disclose non-public sensitive information related to our business through external media channels. The continuing evolution of social media will present us with new challenges and risks.
We does not ultimately have direct control over how we specifically, or the cannabis industry generally, is perceived by others. Reputation loss may result in decreased investor confidence, increased challenges in developing and maintaining community relations and an impediment to our overall ability to advance our business strategy and realize on our growth prospects.
Risks Related to Intellectual Property
We may be subject to risks related to the protection and enforcement of intellectual property rights, and may become subject to allegations that we or our joint venture partners are in violation of the intellectual property rights of third parties.
We rely upon a combination of trade secret protection and confidentiality agreements to protect the intellectual property related to our technologies and products. We are also in the process of applying for protected breeding rights in Israel and seek to apply for protective rights in any jurisdiction in which such rights may be registered. Our success depends in large part on our ability to obtain and maintain intellectual property protection with respect to our proprietary technologies and products.
We may in the future seek to protect our proprietary position by filing patent applications in Israel and in other countries, with respect to our novel technologies and products, which are important to our business. Patent prosecution is expensive and time consuming. We may not be able to prepare, file and prosecute all necessary or desirable patent applications at a reasonable cost or in a timely manner or in all jurisdictions. It is also possible that we will fail to identify patentable aspects of our research and development activities before it is too late to obtain patent protection for them.
In addition to the protection afforded by any patents that may be granted in the future, we rely on trade secret protection and confidentiality agreements to protect proprietary know-how that is not patentable or that we elect not to patent, processes for which patents are difficult to enforce and any other elements of our product development and production processes that involve proprietary know-how, information or technology that is not covered by patents. We cannot assure investors that our trade secrets and other confidential proprietary information will not be disclosed or that competitors will not otherwise gain access to our trade secrets or independently develop substantially equivalent information and techniques.
If we cannot obtain and maintain effective protections for our intellectual property rights, we may not be able to compete effectively, and our business and results of operations could be harmed. Misappropriation or unauthorized disclosure of our trade secrets and intellectual property could impair our competitive position and may have a material adverse effect on our business. Additionally, if the steps taken to maintain our trade secrets and intellectual property rights are deemed inadequate, we may have insufficient recourse against third parties for misappropriating the trade secret or intellectual property right. Any of the foregoing could significantly harm our business, results of operations and prospects.
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Our reliance on third parties requires us to share our trade secrets and other intellectual property, which increases the possibility that a competitor will discover them or that our trade secrets or other intellectual property will be misappropriated or disclosed.
We seek to protect our proprietary technologies and processes, in part, by entering into confidentiality agreements with our employees, consultants, contractors and partners. We also seek to preserve the integrity and confidentiality of our data, trade secrets and intellectual property by maintaining the physical security of our premises and physical and electronic security of our information technology systems. Despite our efforts to protect our trade secrets, our competitors or other third parties may discover our trade secrets, either through breach of confidentiality agreements, independent development or the publication of information including our trade secrets by third parties. A competitor’s or other third party’s discovery of our trade secrets would impair our competitive position and could have an adverse impact on our business, financial condition, results of operations and prospects.
Further, although we expect all of our employees, consultants and other third parties who may be involved in the development of intellectual property for us to assign their inventions to us, and all of our employees, consultants, advisors and any third parties who have access to our proprietary know-how, information, or technology enter into confidentiality agreements with us, we cannot provide any assurance that we have entered into such agreements with all applicable third parties or that all such agreements have been duly executed. Even if we have entered into such agreements, we cannot assure investors that our counterparties will comply with the terms of such agreements or that the assignment of intellectual property rights under such agreements is self-executing. We may be forced to bring claims against third parties, or defend claims that they may bring against us, to determine the ownership of what we regard as our intellectual property. If we fail in prosecuting or defending any such claims, in addition to paying monetary damages, we may lose valuable intellectual property rights. Even if we are successful in prosecuting or defending against such claims, litigation could result in substantial costs and be a distraction to our senior management and scientific personnel. This could inflict significant harm to our business, results of operations and financial prospects.
Intellectual property rights of third parties could adversely affect our ability to commercialize our products, and we might be required to litigate or obtain licenses from third parties in order to develop or market our products. Such litigation or licenses could be costly or not available on commercially reasonable terms.
It is inherently difficult to assess conclusively our freedom to operate without infringing or otherwise violating on third party rights. Third party intellectual property rights may cover our products or elements thereof, our production, processes, or our trademark and brand. In such cases, we may not be in a position to develop or commercialize our products unless we successfully pursue litigation to nullify or invalidate the third party intellectual property right concerned, or enter into a license agreement with the intellectual property right holder, if available on commercially reasonable terms. There may also be pending applications for rights that, if approved, could be alleged to be infringed by our products, processes or trademarks, and, as a result, third party intellectual property right holders may bring infringement claims against us. We cannot guarantee that we will be able to successfully defend, settle or otherwise resolve such infringement claims. If we are unable to settle future claims successfully on terms acceptable to us, we may be required to engage in or continue costly, unpredictable and time-consuming litigation and may be prevented from or experience substantial delays in pursuing the development of and marketing of our products.
If such an infringement claim is brought and is successful, we may be required to pay substantial damages, including treble damages and attorneys’ fees if we are found to have willfully infringed, we may be forced to cease the development and commercialization of and otherwise abandon our products, redesign our products so that we no longer infringe the third party intellectual property rights (which may not be commercially feasible), or we may need to seek a license from any holders of such intellectual property rights. No assurances can be given that a license will be available on commercially reasonable terms, if at all. Even if we were able to obtain such a license, it could be granted on non-exclusive terms, thereby providing our competitors and other third parties access to the same technologies licensed to us. Any of these events, even if we were ultimately to prevail, could require us to divert substantial financial and management resources that we would otherwise be able to devote to our business and otherwise significantly harm our business, results of operations and prospects.
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We may not realize the full benefit of preclinical studies or clinical trials using our GMP-certified products for various indications.
We are currently providing our products for use in one active clinical study, and in the future we plan to participate in preclinical studies and clinical trials. However, we are not the sponsor of these two active studies and our role in these studies is limited to providing the pharmaceutical-grade product and supplying information derived from our database. Any intellectual property generated during these studies will not belong to us and, other than receiving access to the results of such studies, we do not have any proprietary rights in such studies.
We may not be a sponsor of future studies or trials, and, as such, may not have full control over the design, conduct and terms of such studies or trials. Further, we may only act as the provider of pharmaceutical-grade cannabis for studies and trials that are designed and initiated by independent investigators within hospitals or other healthcare institutions. In such cases, we may not be able to acquire rights to all or any of the intellectual property generated by the studies or trials. For example, ownership of intellectual property that does not relate directly to the pharmaceutical-grade cannabis provided by us is often retained by the institution. As such, we are vulnerable to any dispute among the investigator, the institution and us with respect to classification and therefore ownership of any particular piece of intellectual property generated during the study or trial. Such a dispute may affect our ability to make full use of intellectual property generated by a preclinical study or clinical trial.
Where intellectual property generated by a study or trial is owned by the institution, we may be granted a right of first negotiation to obtain an exclusive license to such intellectual property. If we exercise such a right, there is a risk that the parties will fail to come to an agreement on the license, in which case such intellectual property may be licensed to other parties or commercialized by the institution.
We may not own intellectual property developed under joint venture arrangements.
Intellectual property generated, or that will be generated, under research and development activities conducted under certain of our joint venture arrangements may be owned by the joint venture entity and not by us. We may not able to acquire exclusive rights to all such intellectual property, and we may be subject to disputes with our joint venture partners with respect to the ownership, use and exploitation of such intellectual property rights. Such disputes may lead to a breakdown of our relationship with our joint venture partner and termination of the joint venture.
Risks Related to Our Incorporation and Operations in Israel
Potential political, economic and military instability in the State of Israel, where our senior management, our head executive office and production facilities are located, may adversely affect our results of operations.
Our head executive office, our production facilities, and our research and development facilities, are located in Israel. All of our executive officers and directors are residents of Israel. Accordingly, political, economic and military conditions in Israel and the surrounding region may directly affect our business and operations.
The legislative power of the State of Israel resides in the Knesset, a unicameral parliament that consists of 120 members elected by nationwide voting under a system of proportional representation. From April 2019 until March 2021, Israel held four general elections as efforts to compose and approve a new government failed to find lasting success. As a result, the Israeli government has been unable to pass a budget for the current fiscal year and many legislative matters have been delayed. For example, on December 8, 2020, Israel’s Minister of Health signed a new regulation that removed CBD from the Israeli DDO. The regulation must go before the Knesset’s Committee on Health, Welfare and Labour for a vote and ratification. As the Knesset was dissolved on December 23, 2020, the regulation has not gone before the committee and may not go before the committee until a coalition government is approved.
The further delay of implementing these regulations and other legislation or regulations may have an adverse effect on our business, financial condition, results of operations and prospects. Further, the continued uncertainty surrounding the Knesset’s ability to form a coalition government and future elections and/or the results of such elections in Israel may continue. Actual or perceived political instability in Israel or any negative changes in the political environment, may individually or in the aggregate adversely affect the Israeli economy and, in turn, our business, financial condition, results of operations and prospects.
Since the establishment of the State of Israel in 1948, a number of armed conflicts have taken place between Israel and its neighboring countries. Any hostilities involving Israel or the interruption or curtailment of trade between Israel and its trading partners could adversely affect our operations and results of operations. Our facilities in Israel, including our production facilities, are within the range of the missiles and rockets that have been fired at Israeli cities and towns, including from Gaza sporadically since 2006, with escalations in violence during which there were a substantially larger number of rocket and missile attacks aimed at Israel. Such violence may damage peaceful and diplomatic relations between Israel and Egypt, and could affect the region as a whole. Civil unrest and political turbulence has occurred in some countries in the region, including Syria, which shares a common border with Israel, and is affecting the political stability of those countries. This instability and any outside intervention may lead to a deterioration of the political and economic relationships that exist between the State of Israel and some of these countries, and may have the potential to cause additional conflicts in the region. In addition, there are concerns that Iran, which has previously threatened to attack Israel, may step up its efforts to achieve nuclear capability. Iran is also believed to have a strong influence among extremist groups in the region, such as Hamas in Gaza, Hezbollah in Lebanon, and various rebel militia groups in Syria. These situations may potentially escalate in the future to more violent events, which may affect Israel and us. Any armed conflicts, terrorist activities or political instability in the region could adversely affect business conditions, could harm our results of operations, and could make it more difficult for us to raise capital. Parties with whom we do business may decline to travel to Israel during periods of heightened unrest or tension, forcing us to make alternative arrangements when necessary in order to meet our business partners face to face. In addition, the political and security situation in Israel may result in parties with whom we have agreements involving performance in Israel claiming that they are not obligated to perform their commitments under those agreements pursuant to force majeure provisions in such agreements. Further, in the past, the State of Israel and Israeli companies have been subjected to economic boycotts. Several countries still restrict business with the State of Israel and with Israeli companies. These restrictive laws and policies may have an adverse impact on our operating results, financial condition or the expansion of our business.
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Our insurance does not cover losses that may occur as a result of an event associated with the security situation in the Middle East or for any resulting disruption in our operations. Although the Israeli government has in the past covered the reinstatement value of direct damages that were caused by terrorist attacks or acts of war, we cannot be assured that this government coverage will be maintained or, if maintained, will be sufficient to compensate us fully for damages incurred. Any losses or damages incurred by us could have a material adverse effect on our business.
Our operations may be disrupted as a result of the obligation of Israeli citizens to perform military service.
Many Israeli citizens, including some of our executive officers, are obligated to perform up to 36 days, and in some cases longer periods, of military reserve duty annually until they reach the age of 40 (or older, for citizens who hold certain positions in the Israeli armed forces reserves) and, in the event of a military conflict or emergency situation, could be called to immediate active duty for extended periods of time. In response to increases in terrorist activity, there have been periods of significant call-ups of military reservists. It is possible that there will be similar large-scale military reserve duty call-ups in the future. Our operations could be disrupted by such call-ups, which may include the call-up of our employees, which could materially adversely affect our business. Additionally, the absence of a significant number of the employees of our Israeli suppliers and third-party subcontractors related to military service or the absence for extended periods of one or more of their key employees for military service may disrupt their operations which may subsequently disrupt our operations.
The rights and responsibilities of our shareholders are governed by Israeli law, which may differ in some respects from the rights and responsibilities of shareholders of U.S. corporations.
Since we are incorporated under Israeli law, the rights and responsibilities of our shareholders are governed by our amended and restated articles of association and Israeli law. These rights and responsibilities differ in some respects from the rights and responsibilities of shareholders of U.S.-based corporations. In particular, a shareholder of an Israeli company, such as us, has a duty to act in good faith and in a customary manner in exercising its rights and performing its obligations towards us and other shareholders and to refrain from abusing its power in us, including, among other things, in voting at the general meeting of shareholders on certain matters, such as an amendment to our articles of association, an increase of our authorized share capital, a merger and approval of related party transactions that require shareholder approval. A shareholder also has a general duty to refrain from discriminating against other shareholders. In addition, a controlling shareholder or a shareholder who knows that it possesses the power to determine the outcome of a shareholders vote or to appoint or prevent the appointment of an office holder of ours or other power towards us has a duty to act in fairness towards us with regard to such vote or appointment.
Provisions of Israeli law may delay, prevent or otherwise impede a merger with us, or an acquisition of us, which could prevent a change of control, even when the terms of such a transaction are favorable to us and our shareholders.
Israeli corporate law regulates mergers, requires tender offers for acquisitions of shares above specified thresholds, requires special approvals for transactions involving directors, officers or significant shareholders and regulates other matters that may be relevant to these types of transactions.
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Additionally, if any of our shareholders acquires, holds, or has control of or direction over 5% or more of our outstanding shares or a person obtains control of a 5% or more holder of our ordinary shares, without procuring the prior approval from the IMCA or other relevant regulatory authority, the licenses issued to us by the IMCA to conduct our cannabis-related activities in Israel may be suspended or revoked. Under our amended and restated articles of association, if any person acquires, holds, or has control of or direction over more than 4.99% of our outstanding ordinary shares at any time without receiving prior approval from the IMCA or other relevant regulatory authority, the ordinary shares held by that person in excess of such limit will automatically become dormant shares and will carry no rights, including rights to vote, to receive dividends and to participate in the liquidation and distribution of our assets upon dissolution. In addition, the IMCA or other relevant regulatory authority must approve the identity of our directors and chief executive officer prior to their taking office, and any extensions to their respective terms of appointment. See Item 10 “Share Capital—Ordinary Shares— Ownership Restrictions.”
Furthermore, Israeli tax considerations may make potential transactions unappealing to us or to those of our shareholders whose country of residence does not have a tax treaty with Israel exempting such shareholders from Israeli tax. For example, Israeli tax law does not recognize tax-free share exchanges to the same extent as U.S. tax law. With respect to mergers, Israeli tax law allows for tax deferral in certain circumstances but makes the deferral contingent on the fulfillment of numerous conditions, including a holding period of two years from the date of the transaction during which sales and dispositions of shares of the participating companies are restricted. Moreover, with respect to certain share swap transactions, the tax deferral is limited in time, and when such time expires, the tax becomes payable even if no actual disposition of the shares has occurred.
These and other similar provisions could delay, prevent or impede an acquisition of us or our merger with another company, even if such an acquisition or merger would be beneficial to us or to our shareholders.
We may not be able to enforce covenants not to compete under applicable laws, and therefore we may be unable to prevent our competitors from benefiting from the expertise of some of our former employees. In addition, employees may be entitled to seek compensation for their inventions irrespective of their agreements with us, which in turn could impact our future profitability.
We generally enter into non-competition agreements with our employees and key consultants. These agreements prohibit our employees and key consultants, if they cease working for us, from competing directly with us or working for our competitors or clients for a limited period of time. We may be unable to enforce these agreements under the laws of the jurisdictions in which our employees work and it may be difficult for us to restrict our competitors from benefitting from the expertise our former employees or consultants developed while working for us. For example, Israeli courts have required employers seeking to enforce non-compete undertakings of a former employee to demonstrate that the competitive activities of the former employee will harm one of a limited number of material interests of the employer which have been recognized by the courts, such as the secrecy of a company’s confidential commercial information or the protection of its intellectual property. If we cannot demonstrate that such interests will be harmed, we may be unable to prevent our competitors from benefiting from the expertise of our former employees or consultants and our ability to remain competitive may be diminished. Under the Israeli Patent Law, 5727-1967, or the Patent Law, inventions conceived by an employee during the scope of his or her employment with a company and as a result thereof are regarded as “service inventions,” which belong to the employer, absent a specific agreement between the employee and employer giving the employee service invention rights. The Patent Law also provides that if there is no agreement between an employer and an employee with respect to the employee’s right to receive compensation for such “service inventions,” the Israeli Compensation and Royalties Committee, a body constituted under the Patent Law, shall determine whether the employee is entitled to remuneration for his or her service inventions and the scope and conditions for such remuneration. Although our employees have agreed to assign to us service invention rights, as a result of uncertainty under Israeli law with respect to the efficacy of waivers of service invention rights, we may face claims demanding remuneration in consideration for assigned inventions. As a consequence of such claims, we could be required to pay additional remuneration or royalties to our current and former employees, or be forced to litigate such claims, which could negatively affect our business.
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Investors may have difficulties enforcing a U.S. judgment, including judgments based upon the civil liability provisions of the U.S. federal securities laws, against us or our executive officers and directors, or asserting U.S. securities laws claims in Israel.
None of our directors or officers are residents of the United States. Most of our directors’ and officers’ assets and our assets are located outside the United States. Service of process upon us or our non-U.S. resident directors and officers and enforcement of judgments obtained in the United States against us or our non-U.S. directors and executive officers may be difficult to obtain within the United States. We have been informed by our legal counsel in Israel that it may be difficult to assert claims under U.S. securities laws in original actions instituted in Israel or obtain a judgment based on the civil liability provisions of U.S. federal securities laws. Israeli courts may refuse to hear a claim based on a violation of U.S. securities laws against us or our officers and directors reasoning that Israel may not be 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 the matters described above. Israeli courts might not enforce judgments rendered outside Israel, which may make it difficult to collect on judgments rendered against us or our officers and directors. See “Enforceability of Civil Liabilities.”
Because a certain portion of our expenses is incurred in currencies other than the U.S. dollar, our results of operations may be harmed by currency fluctuations and inflation.
Our reporting and functional currency is the NIS, but some portion of our operational expenses are in U.S. dollars, Euros and Canadian dollars. As a result, we are exposed to some currency fluctuation risks. We may, in the future, decide to enter into currency hedging transactions to decrease the risk of financial exposure from fluctuations in the exchange rate of the currencies mentioned above in relation to the NIS. These measures, however, may not adequately protect us from adverse effects.
Our operations may be affected by negative labor conditions in Israel.
The threat of strikes and work stoppages occur relatively frequently in Israel. If Israeli trade unions threaten strikes or work stoppages and such strikes or work stoppages occur, those may, if prolonged, have a material adverse effect on the Israeli economy and on our business, including our ability to deliver our products and to receive raw materials from our suppliers in a timely manner.
Risks Related to this Offering and Ownership of Our Ordinary Shares
If any person acquires, holds, or has control of or direction over 5% or more of our outstanding shares or any person obtains control of a holder of 5% or more of our shares, without procuring the prior approval from the IMCA, the licenses issued to us by the IMCA to conduct our cannabis-related activities in Israel may be suspended or revoked. Under our amended and restated articles of association, if any person acquires, holds, or has control of or direction over more than 4.99% of our outstanding ordinary shares at any time without receiving prior approval from the IMCA, the ordinary shares held by that person in excess of such limit will automatically become dormant shares.
The directives and guidelines issued by the IMCA and the terms of the licenses issued to us by the IMCA to conduct our cannabis-related activities, or IMCA Licenses, impose certain requirements that prohibit any person from directly or indirectly acquiring, holding or maintaining control of or direction over 5% or more of our issued share capital and voting power without first obtaining the prior approval of the IMCA, or the Approval Requirement. See Item 10 “Share Capital—Ordinary Shares— Ownership Restrictions.” The terms of our IMCA Licenses provide that the IMCA Licenses may be suspended or revoked in the event of a breach of the Approval Requirement.
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We have implemented measures in our amended and restated articles of association in order to mitigate the risk of a contravention of the Approval Requirement and a resulting risk of expiry of our IMCA Licenses. Under our amended and restated articles of association, if any person acquires, holds, or has control of or direction over more than 4.99% of our outstanding ordinary shares at any time without having complied with the Approval Requirement, the ordinary shares held by that person in excess of such limit will automatically become dormant shares and will carry no rights, including rights to vote, to receive dividends and to participate in the liquidation and distribution of our assets upon dissolution. Notwithstanding the foregoing, a shareholder will be entitled to sell any such dormant shares and retain the proceeds associated with such sale. These measures are designed to ensure that the number of ordinary shares acquired or held by any person, or over which a person has the authority to exercise direction or control, is at all times within the Applicable Limit (as defined in Item 10 “Share Capital—Ordinary Shares— Ownership Restrictions.”) unless the Approval Requirement is complied with.
There can be no assurance that the IMCA will consider these provisions of our amended and restated articles of association as sufficient to prevent the lapse of our IMCA Licenses in the event that a person exceeds the Applicable Limit in breach of the Approval Requirement. The directives and guidelines issued by the IMCA imposing limitations on the holdings of shares in license holders and certain other aspects of the Israeli cannabis laws have recently undergone changes and the restrictions applicable to license holders remain subject to interpretation. At this time, only limited guidance is available regarding the application thereof and, in particular, with respect to a publicly traded company. In the event a person exceeds the Applicable Limit or a person obtains control of a 5% or more holder of our ordinary shares, including whether passively, incrementally, or by any other means, without having complied with the Approval Requirement, the IMCA may take the position that our IMCA Licenses have automatically lapsed as a result. The suspension or revocation of the IMCA Licenses could have a material and adverse effect on our business, financial condition, results of operations and prospects.
Further, there can be no assurance that the necessary approvals from the IMCA or other relevant regulatory authority for any of the above matters will be obtained in a timely manner, or at all. These provisions could delay, prevent or impede the acquisition of our shares, even if such an acquisition would be beneficial to us or to our shareholders.
The Company’s management has a substantial ownership interest; public stockholders may have no effective voice in the Company’s management.
The Company’s Chief Executive Officer, Alexander Rabinovich, holds directly, or through indirect beneficial ownership, in excess of forty percent (40%) of the Company’s voting power and, with other executive officers, directors and their affiliates, Company insiders hold directly, or through indirect beneficial ownership, in the aggregate, approximately forty-two percent (42%) of the Company’s outstanding ordinary shares. As a result, these persons will have substantial control over the operations of the Company, including the election of directors and approval of significant corporate transactions such as acquisitions and approval of matters requiring stockholder approval. This concentration of ownership could also have the effect of delaying or preventing a third party from acquiring control of the Company at a premium.
Our management and a limited number of major shareholder have a substantial ownership interest, and the availability of the Company’s ordinary shares to the investing public may be limited.
Due to the high concentration of ownership of the Company’s ordinary shares among the Company’s executive officers, directors and a limited number of major shareholders, the availability of Intercure’s ordinary shares to the investing public could be limited, which could negatively impact the trading price of Intercure’s and affect the ability of minority stockholders to sell their shares. Future sales by executive officers, directors and their affiliates of all or a portion of their shares could also negatively affect the trading price of our ordinary shares.
An active trading market for our ordinary shares may not develop.
Prior to this offering, there has been no public market for our ordinary shares. The initial public offering price for our ordinary shares will be determined through negotiations with the underwriters. Although we have applied to have our ordinary shares listed on the Nasdaq Capital Market, an active trading market for our shares may never develop or be sustained following this offering. If an active market for our ordinary shares does not develop, it may be difficult for you to sell shares you purchase in this offering without depressing the market price for the shares, or at all.
Your percentage ownership in us may be diluted by future issuances of share capital, which could reduce your influence over matters on which shareholders vote.
Our board of directors has the authority, in most cases without action or vote of our shareholders, to issue all or any part of our authorized but unissued shares, including ordinary shares issuable upon the exercise of outstanding warrants and options. Issuances of additional shares would reduce your influence over matters on which our shareholders vote.
We have not paid dividends on our ordinary shares and, therefore, unless our traded securities appreciate in value, our investors may not benefit from holding our securities.
We have not paid any cash dividends on our ordinary shares since inception. We do not anticipate paying any cash dividends on our ordinary shares in the foreseeable future. Moreover, the Companies Law imposes certain restrictions on our ability to declare and pay dividends. As a result, investors in our ordinary shares will not be able to benefit from owning these ordinary shares unless their market price becomes greater than the price paid by such investors and they are able to sell such ordinary shares. We cannot assure you that you will ever be able to resell our ordinary shares at a price in excess of the price paid.
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Our U.S. shareholders may suffer adverse tax consequences if we are characterized as a passive foreign investment company, or PFIC, for U.S. federal income tax purposes.
We will be treated as a PFIC for U.S. federal income tax purposes in any taxable year in which either (i) at least 75% of our gross income is “passive income” or (ii) on average at least 50% of our assets by value produce passive income or are held for the production of passive income. Passive income for this purpose generally includes, among other things, certain dividends, interest, royalties, rents and gains from commodities and securities transactions and from the sale or exchange of property that gives rise to passive income. Passive income also includes amounts derived by reason of the temporary investment of funds, including those raised in a public offering. In determining whether a non-U.S. corporation is a PFIC, a proportionate share of the income and assets of each corporation in which it owns, directly or indirectly, at least a 25% interest (by value) is taken into account. Based on our analysis of our income, assets, and operations, we do not believe that we were a PFIC for 2018. Because the PFIC determination is highly fact intensive, there can be no assurance that we will not be a PFIC for 2019 or for any other taxable year. If we were to be characterized as a PFIC in any taxable year, a U.S. Holder (as defined below in “Material Tax Considerations—Certain United States Federal Income Tax Considerations”) may incur significantly increased U.S. income tax on gain recognized on the sale or other disposition of our ordinary shares and on the receipt of distributions on our ordinary shares to the extent such gain or distribution is treated as an “excess distribution” under the U.S. federal income tax rules and such holder may be subject to burdensome reporting requirements. Further, if we are a PFIC for any year during which a U.S. Holder holds our ordinary shares, we generally will continue to be treated as a PFIC for all succeeding years during which such U.S. Holder holds our ordinary shares. A U.S. Holder may be able to alleviate some of these adverse tax consequences by timely making a “qualified electing fund”, or QEF, election or a “mark-to-market” election. It is not expected that a U.S. Holder will be able to make a QEF election because we do not intend to provide U.S. Holders with the information necessary to make a QEF election.
U.S. Holders are urged to consult their own tax advisors regarding the application of the PFIC rules. For more information, see “Material Tax Considerations—Taxation of U.S. Holders—Passive Foreign Investment Company.”
| ITEM 4. | INFORMATION ON THE COMPANY |
| A. | History and Development of the Company. |
Intercure is an Israeli public corporation whose shares are listed for trading on the TSX under the symbol “INCR:U” and on TASE under the symbol “INCR”. Intercure has two direct subsidiaries, Canndoc and Cannolam. Intercure currently owns all of the issued and outstanding shares of Canndoc and 50.1% of the issued and outstanding shares of Cannolam. Unless otherwise specified, references in this section to “we”, “our” and “us” refer to the business of Intercure and its subsidiaries.
We (more specifically through Canndoc and its founder, Mr. Avner Barak, who is Canndoc’s President) are a pioneer in the production (including the breeding, cultivating and processing), manufacturing and distribution of pharmaceutical-grade cannabis and cannabis-based products for medical use. For more than 13 years, we have been a leader in the licensed production and distribution of cannabis and cannabis-based products throughout Israel, one of the first countries with a governmentally-sanctioned regime for the production, manufacturing and distribution of cannabis for medical use. Our goal is to be a global leader in the production and distribution of high quality pharmaceutical-grade cannabis and cannabis-based products to patients in all territories that permit and regulate the distribution of cannabis for medical use, including Israel, the European Union and Canada.
Notwithstanding our plans for growth, we will operate only in countries where cannabis may be legally used for medical purposes and permitted under all applicable laws. Despite being authorized for medical and adult use by many U.S. states, we do not, nor do we plan to, produce, process or distribute cannabis in the United States while it remains a controlled substance with no currently accepted medical use under U.S. federal law.
We were an early leader in the global medical-use cannabis market and we were one of the first licensed producers of cannabis for medical use in Israel, where medical use of cannabis has been permitted and regulated since 2008. Our pharmaceutical-grade cannabis products are manufactured using processes that are certified and in compliance with the IMCA, standards, including IMC-GMP standards, which are substantially similar to the Good Manufacturing Practice of the European Union (“EU-GMP”) standards. GMP certification is an internationally recognized standard that is the primary quality standard that pharmaceutical companies must meet in their production processes. Leveraging our more than 13 years of experience, we have developed production methods for consistent batches with well-defined cannabinoid profiles by following strict protocols, utilizing proprietary cannabis genetics and leveraging our scalable climatized greenhouse technology. All of our products are analyzed by IMCA-certified laboratories using established testing procedures that ensure standardized cannabinoid compound ratios and potency, or cannabinoid profiles.
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We believe that our future growth is dependent upon our ability to further develop and commercialize our extensive know-how regarding the production of high-quality pharmaceutical-grade cannabis and on our success in implementing our plans to increase our production capabilities and to expand our global distribution network, enabling us to distribute our products in Israel, the European Union and Canada.
Our production facility located in the Southern Kibbutz, with a gross area of 1.7 million square feet, of which 300,000 square feet are operational, can produce up to 10,000 kilograms of pharmaceutical-grade cannabis per year. Assuming that the Southern Kibbutz is fully operational at its maximum capacity and all regulatory approvals are received, full operation of its facility will allow us to produce 88 tons of pharmaceutical-grade cannabis per year. We plan to bring our facilities located in the Southern Kibbutz to their full operational capacity subject to increased demand for our products, finalization of export regulations from Israel and the import regulations to the European Union and other regulatory approvals that are required for the expansion of production. We do not have any specific plans regarding the expansion of our capacity at facilities located in the Southern Kibbutz at this time.
In addition, we also operate the Northern Kibbutz, a production facility with a gross area of 55,000 square feet, which can produce up to 3,000 kilograms of pharmaceutical-grade cannabis per year.
In Israel, we distribute our products through licensed retail pharmacy locations, where patients may fill their prescriptions on site or have our products delivered directly to their residence. To diversify and expand our global production and distribution capabilities to meet current and future demand in our target markets, we have entered into agreements to establish joint ventures, supply and distribution arrangements in the European Union and Canada with local producers and distributors that have significant distribution networks. Although to date none of our products have been distributed through any of our distribution partnerships, we anticipate that we will be able to commence distributions after meeting local regulatory requirements. We have partnered with a Danish licensed producer that owns and operates a pharmaceutical production and manufacturing facility. We have also engaged a separate German pharmaceutical distributor. We have also entered into a joint venture agreement with a licensed EU-GMP pharmaceutical manufacturer and distributor that has a license to import cannabis into the United Kingdom for medicinal purposes. In Canada, our partner has finished construction on an indoor cultivation facility and is awaiting the final manufacturing and production license from Health Canada to commercially grow pharmaceutical-grade cannabis.
We plan to have our products distributed globally under the “CANNDOC” brand, produced by us or through our partnerships, and manufactured under GMP standards. As of the date of this registration statement, our products have not yet been distributed through our partnerships. Our ability to do so is impacted by various regulatory matters, as regulatory permits and licenses are currently required for the import, export and distribution of cannabis products in the jurisdictions where we operate. As such, the regulatory regime present in these jurisdictions has a direct impact on our business and our ability to grow it.
Through Cannolam, we operate the private chain Givol™ which is the first and leading chain of pharmacies focused on medical cannabis in Israel. The chain currently includes ten pharmacies across Israel. In addition, the chain operates a nationwide ordering and delivery system that serves the entire medical cannabis patient community in Israel. The chain includes nine active pharmacies and another pharmacy under construction in the city of Be’er Sheva. Six of the pharmacies hold permits and licenses for the distribution of medical cannabis and we are in the process of obtaining those licenses for the other pharmacies.
We have not completed any clinical trials using cannabis or cannabis-based products to date. We have received IMCA feasibility approval to initiate nine clinical trials and have commenced one phase 3 clinical trial. We initiated a phase 3 clinical trial in a leading Israeli medical center to study our product’s influence on cognitive and adjacent capabilities on children who are on the autistic spectrum. The phase 3 trial results are expected in 2022. The other nine clinical trials have not started and are expected to begin during 2022 or 2023.
On April 5, 2021, we signed a non-binding letter of intent to acquire 100% of the Israeli activity of Cann Pharmaceutical Ltd. (“Cann”) which holds the rights for cultivation and marketing medical cannabis products under the brand “Better”, one of our competitors and a pioneer in the Israeli medical cannabis market, with operations in Australia and several Asian countries. The transaction is subject to satisfaction of due diligence and signing a definitive agreement. Pursuant to the letter of intent, we will allocate Cann shareholders a number of our ordinary shares with a value of $35 million. The allocated shares will be subject to a contractual lock-up for a period of three years, with one-third of the shares being released from lock-up every year (with a moderate monthly exercise mechanism).
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We believe our management team is one of the most knowledgeable and experienced in the cannabis industry and consists of pioneers in the cannabis space, including our founder and president, who is globally recognized as an expert cultivator of medical cannabis. We believe that our extensive cannabis production expertise, lengthy operating experience and strong relationships with governmental institutions gives us an advantage over our competitors.
Qualified Transaction
On February 9, 2021, we entered into an amended and restated merger agreement (hereinafter: the “Arrangement Agreement”) with Subversive Real Estate Acquisition REIT LP, a limited partnership established under the Limited Partnerships Act (Ontario) and a special purpose acquisition company (SPAC) (“Subversive LP”). As a SPAC, Subversive had limited operational activity. As of December 31, 2020, its material assets consisted of USD $226 million in cash and securities held in escrow with no material liabilities. Pursuant to the Arrangement Agreement, on April 23, 2021 our subsidiary acquired all of the outstanding Units of Subversive LP, in exchange for our ordinary shares by way of a plan of arrangement (the “SPAC Transaction”). Concurrently with the SPAC Transction, Subversive LP conducted a non-brokered private placement of 6.5 million Limited Partnership Units for an aggregate amount of $65 million. At the closing of the SPAC Transaction, which occurred on April 23, the Company issued 15,650,280 ordinary shares to Subversive LP unit holders, including those that participated in the concurrent private placement. 5,237,000 of our ordinary shares were allocated as part of the SPAC Transaction and are subject to forfeiture unless the Company’s ordinary shares are listed on NASDAQ and obtain a target weighted average price per share of $13.00 (subject to appropriate adjustments) for any five (5) consecutive trading days during the thirty (30) trading days after the shares are traded on Nasdaq. Total net funds raised from the SPAC Transaction, after redemptions, and the private placement equalled USD $56 million.
| B. | Business Overview. |
Intercure has two direct subsidiaries, Canndoc and Cannolam:
| ● | Canndoc’s operations are focused on the production (including the breeding, cultivating, importing and processing), manufacturing, exporting and distribution of pharmaceutical-grade cannabis and cannabis-based products for medical use. | |
| ● | Cannolam’s operations are focused on establishing and operating dedicated pharmacies for the distribution of pharmaceutical-grade cannabis under the brand name “Givol”, including a “Cookies”-branded location. In addition, Cannolam is looking to establish a distribution network for recreational cannabis and cannabis-based products throughout Israel, primarily through licensing and distribution agreements that will become effective once the recreational use of cannabis for adults over the age of 21 is legalized in Israel. |
Our Strengths
We believe our key competitive strengths include the following:
We have been a pioneer of cannabis for medical use for over 13 years. We have been producing cannabis for medical use since 2008 and are one of the first licensed producers and distributors of cannabis and cannabis-based products in Israel. We were the first to import cannabis for medical use into Israel for distribution in the Israeli market and we were the first to export cannabis for medical use to a country in the European Union.
Our products and processes meet the highest standards required by regulators for the whole value-chain of pharmaceutical-grade cannabis. We were one of the first cannabis companies in Israel to supply products that meet the GMP standards established by the IMCA. Our facilities and the production processes implemented in them are certified under the IMC-GAP standards and comply with the Good Agriculture Collection Practices (GACP) following an audit made by an EU-GMP-certified entity. Finally, our distributors, including pharmacies, store and distribute our products using facilities and processes that meet the IMC-GDP standards. Our products comply with the highest standards and we believe our products will be competitive in any medical-use cannabis market.
Strategic Partnerships. We have entered into long-term exclusive strategic partnerships with leading companies. We have exclusive long-term partnerships with Tilray, Aphria, Organigram, Charlotte’s Web and Cookies. These partnerships provide us with product sources and access to our partner’s facilities. This allows us to increase our global footprint and provide access to increased raw material if we need it to meet demand. Together with our local and EU production and distribution channels, we are able to create a dynamic international supply chain for our GMP-branded products.
Expansion into the CBD market. Our strategic partnership with the number one global leader in hemp extracts, Charlotte’s Web, was the first partnership we undertook in the CBD space. This agreement includes long-term exclusive distribution rights of Charlotte’s Web’s products in Israel and further non-exclusive distribution rights in the European market. This strategic partnership entails research and development, new product development in Israel, the supply of raw material for Israeli industrialists and manufacturing in Israel and Europe. The noted partnership is subject to the receipt of the required regulatory approvals and the removal of CBD from the Israeli Dangerous Drug Ordinance (“DDO”). On December 8, 2020, Israel’s Minister of Health signed a new regulation that removed CBD from the Israeli DDO. For the removal to be completed, the regulation must go before the Knesset’s Committee on Health, Welfare and Labour for a vote and ratification. As the Knesset was dissolved on December 23, 2020, the regulation did not go before the committee. We believe that once a new government will form, the legislative process removing the CBD from the DDO will continue.
We have developed rigorous, cultivation and harvest protocols to ensure consistency, quality and efficiency as we increase the scale of our operations globally. We pride ourselves on consistently delivering high-quality products with precise chemical compositions using scalable and efficient production techniques. We have leveraged our extensive production experience and proven protocols while expanding our production capabilities at our sites in Israel. We have entered into agreements to establish joint ventures, supply and distribution arrangements in the European Union and Canada with local producers and distributors that have significant distribution networks. We have developed production techniques that enable us to maintain a low-cost structure as we further scale our operations. We currently utilize climatized greenhouses instead of more costly indoor facilities in order to produce GMP-certifiable products at a lower cost.
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We are developing a global distribution network. We distribute pharmaceutical-grade cannabis products in Israel (using authorized distributors that are IMC-GDP certified) to 100% of the pharmacies in Israel that are authorized to distribute cannabis products. In addition, through Cannolam, we operate the private chain Givol™ which is the first and leading chain of pharmacies focused on medical cannabis in Israel. The chain currently includes ten pharmacies across Israel. In addition, the chain operates a nationwide ordering and delivery system that serves the entire medical cannabis patient community in Israel. The chain includes nine active pharmacies and another pharmacy under construction in the city of Be’er Sheva. Six of the pharmacies hold permits and licenses for the distribution of medical cannabis and we are in the process of obtaining those licenses for the other pharmacies.
We have entered into a supply agreement with a licensed producer and distributor in Denmark and a distribution agreement with a pharmaceutical distributor in Germany. On April 4, 2021, we entered into a joint venture agreement with an Austrian entity for the purpose of distributing Canndoc products and other co-branded products as part of our strategic partnerships in Luxembourg and Austria. We have also entered into a joint venture agreement with a licensed EU-GMP pharmaceutical distributor that has a license to import cannabis into the United Kingdom for medicinal purposes. In Canada, our partner has finished construction on an indoor cultivation facility and is awaiting the final manufacturing and production license from Health Canada to commercially grow pharmaceutical-grade cannabis. As of the date of this registration statement, our products have not been distributed through these partnerships. The joint venture, supply and distribution partnerships mentioned above are not active as of this date and have no effect on our operations. While the success of these partnerships depends on a number of factors, including in some instances the passage of favorable amendments to the laws regarding the import and export of cannabis, we believe that we are well positioned to quickly monetize these partnerships once they become operational.
We have accumulated extensive patient use and experience data for our products. Since 2008, our products have been used by thousands of patients on a monthly basis to treat all medical conditions approved by the Israeli Ministry of Health (“MOH”), which primarily include: pain, neurological indications (such as epilepsy, ALS & MS), cancer, post-traumatic stress disorder (“PTSD”), gastrointestinal indications (such as Crohn’s disease, colitis, inflammatory bowel disease) and terminal illnesses. As a result, we have extensive patient use and experience data from which to educate physicians and enable them to prescribe our products with the appropriate cannabinoid profile, dosage and duration for a medical indication.
We are a market leader in research and innovation within our industry. We engage in the research of agricultural techniques to improve the yield of cannabis plants and our production of various cannabinoids. Our research and development programs have also involved the development of high-quality protocols and elite genetics. Further, to ensure the quality and reliability of our products as well as the optimization of methods to provide more effective products, we engage in a series of analyses regarding our products.
We have a highly experienced leadership team. We believe our management team is amongst the most knowledgeable and experienced in the cannabis industry and consists of pioneers in the cannabis space, including our founder and president who is globally recognized as an expert cultivator of cannabis. As a long-term operator in this industry, our team has been at the forefront of assisting governments to develop regulations around the production and distribution of pharmaceutical-grade cannabis.
We focus on operational excellence. We have developed a quality management system that has enabled us to meet pharmaceutical-grade production standards while achieving and maintaining profitability. We believe that as we continue to grow, we will leverage our technologies and knowledge to optimize our operational efficiency while maintaining the highest level of safety and quality.
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Our Strategies
Our goal is to be a global leader in the production and distribution of high-quality pharmaceutical-grade cannabis-based products to patients in all territories that permit and regulate the distribution of cannabis for medical use. To achieve this goal, we plan to implement the following strategies:
Focus only on high-quality cannabis products. We focus solely on high-quality pharmaceutical-grade cannabis for the treatment of medical conditions. Given our sole focus, we have accumulated more years of experience than most of our competitors in producing consistent pharmaceutical-grade cannabis under the highest quality standards. We believe that we have a head start to becoming a dominant player in this industry on a global level and will be competitive in all markets, including those with the strictest regulatory standards. In addition, subject to applicable local laws, we believe that our expertise and distribution capabilities have positioned us well for dominating the recreational cannabis and CBD market in Israel once, and if, Israeli regulations permit the sale of recreational cannabis and CBD products.
Focus only on territories that are fully-regulated medical-use cannabis markets. We believe that focusing on markets that have fully-regulated medical-use regimes provides us with legal certainty for our operations and enables us to leverage our high standards to gain an advantage when competing in these markets. We plan to leverage these benefits to expand our global footprint, maintain our reputation, strengthen our brand and broaden our access to capital.
Build a leading global brand. Our plan is to distribute all products produced by us, our joint ventures and our partners under a single global “CANNDOC” brand and our sub-brands (including, “Indoor”, “Diamonds”, “Stars”, “Utopia”) in order to build global brand awareness of and loyalty to our pharmaceutical-grade products. We design our packaging to have a look and feel that is consistent with other prescribed medicines to reflect the pharmaceutical-grade quality of our products. Our packaging displays ratios of specific cannabinoid compounds and the required disclosures for the relevant jurisdiction of distribution. We believe this strategy will instill physician and patient confidence in us, leading to a greater adoption of our products.
Establish distribution networks in all territories with full regulation of the medical-use cannabis industry. In addition to our distribution networks in Israel, we are establishing distribution channels for our products in all fully-regulated markets, including Germany, the United Kingdom and Canada. Although to date none of our products have been distributed through any of our distribution partnerships, we anticipate that we will be able to commence distributions after meeting local regulatory requirements. We anticipate that these distribution channels will be established by way of joint ventures and distribution agreements with local licensed distributors to address both the current and anticipated demand for medical use cannabis. We have also established relationships with the distributors of pharmaceutical products in markets where we expect cannabis for medical use will become fully regulated in the near future. Establishing distribution capabilities with local partners will allow us to be an early mover and ultimately a leader in these future markets.
Optimize our supply by diversifying production capabilities and maintaining inventory to meet demand. We are continuing to expand our production capabilities in Israel. To ensure that we have a sufficient supply of product available to enter the European Union market, including the German market, in the near term, we have also entered into a supply agreement with a licensed producer that has pharmaceutical production and manufacturing facilities in Denmark. We have also entered into an agreement to form a joint venture with a local producer in Canada in order to supply the Canadian medical use market, which does not currently allow for the import of cannabis products for commercial purposes. Although our products are not currently produced in any European Union countries or in Canada, we plan to implement a worldwide footprint to optimize our management of supply based on cost of production and to ensure that we have a consistent supply for the markets that we are targeting.
Maximize operational efficiency. We made a strategic decision to outsource manufacturing and distribution operations to IMC-GMP and IMC-GDP certified third parties in 2016, when new Israeli regulations significantly increased the costs of these functions. Beginning in 2020, with the acquisition of Cannolam, we expanded our business model to include distribution capabilities through our network of pharmacies. As we scale our operations and expand into larger markets outside of Israel, our management team plans to explore the commercial and operational benefits of returning to a vertically integrated model, including our ability to control the entire value-chain, from our genetics to the distribution of our branded products to pharmacies. We believe that our prior experience operating throughout the entire value chain enables us to achieve our goal of maximizing operational efficiency, whether vertically integrated or not, while maintaining our high quality.
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Support clinical trials using our GMP-certified products and leverage our extensive patient experience database. We plan to provide our pharmaceutical-grade products for use in clinical trials, performed by our partners or ourselves. When designing clinical trials, we plan to utilize our patient database, which has been tracking patient use and experience information for over a decade from tens of thousands of patients.
Our Products
Our product portfolio consists of differentiated pharmaceutical-grade cannabis product brands. We develop our product brands to treat a wide variety of medical conditions and optimize results across a diverse population of patients. We believe patients choose our products because we are known for producing pure, precise and predictable pharmaceutical-grade products.
We believe that cannabinoids, terpenes and other bioactive compounds create beneficial therapeutic results when they work in synergy, an effect known as the “entourage effect.” We do not create our cannabinoid profiles by combining isolated cannabinoid compounds from various sources. Instead, we utilize breeding and cultivation techniques to create stable and consistent levels of target cannabinoid profiles within each plant.
Our current portfolio of products is characterized by well-defined and reproducible cannabinoid profiles, formulated for stability, which are currently available in dried inflorescences or liquid oil form. Each of our products is derived from cannabis that is bred and cultivated in accordance with applicable GAP standards and manufactured under applicable GMP standards. As a result, our branded market share is 15% in Israel and is consistently growing.
Cannabinoid Profiles
Our products are differentiated by profiles that reflect specified ratios and concentrations of the two principal cannabinoids in pharmaceutical-grade cannabis: CBD and THC. There are currently more than 100 identified cannabinoids, and we measure and analyze their concentrations in our products. We plan to measure and analyze any new cannabinoids that are identified in the future.
We take a scientific approach to our product development. Cannabis strains, selected for their biochemical composition, are systematically bred, cultivated and processed to produce a specific profile. Our products are tested using established laboratory testing procedures that ensure standardized cannabinoid ratios and potency.
As the landscape of the medical-use cannabis industry continues to evolve with the rapid pace of research and discovery, we continue to experiment with developing new and unique ratios of cannabinoids and other bioactive compounds for use in our products. We believe that our extensive genetic bank will give us an advantage in developing new products with optimal cannabinoid profiles.
Delivery Formats
We offer products in established delivery formats that facilitate the absorption of active compounds in a patient’s body.
Our current portfolio of cannabis-based products for distribution in Israel includes the following delivery formats:
| ● | Dried cannabis inflorescences, sold in vacuum-sealed pouches where the overall weight of cannabis (net) in each package is 10 grams. | |
| ● | Cannabis extract mixed with oil, sold in bottles where the overall volume of product is 10 ml. |
We plan to evaluate other markets, including Canada, and develop products using delivery formats that address patient needs and preferences and comply with applicable regulatory requirements. With the development of scientific research and regulatory momentum, we may develop products in the future that use other delivery formats, such as capsules or patches. We plan to continue to develop formulations and delivery methods to achieve targeted delivery and sustained release.
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We invested in launching and creating demand for our product brands, including by co-branding certain of our products with our exclusive partners. Our packaging displays ratios of specific cannabinoid compounds and the required disclosures for each relevant jurisdiction of distribution.
Below are pictures of the packaging for our branded pharmaceutical-grade products that are distributed in Israel. Our packaging for products to be sold in Germany and other jurisdictions will be similar, but will reflect the applicable regulatory requirements in those territories.
Our Operations
With over 13 years of operations, we have gained significant experience and know-how throughout the entire value chain of producing and distributing cannabis and cannabis-based products for medical use. We strive to ensure that the materials and processes that go into the production and manufacturing of our products comply with the highest standards.
As of the date of this registration statement, our production capacity, assuming that all facilities are fully operational at their maximum capacity and all regulatory approvals are received, produces over 100,000 kilograms of GMP-certified pharmaceutical-grade cannabis. In addition, through strategic partnerships with leading license producers, we may have access to additional high quality medical cannabis on demand. For a more detailed description of our facilities, please see Item 4.D “Property, Plant and Equipment” below.
Breeding
Our primary goal is to produce consistently, under the strictest standards, the highest-quality inflorescences from the cannabis plant, which we use as the raw material for our pharmaceutical-grade cannabis-based products. We focus on breeding genetic profiles that maximize production yields and maintain stable and consistent cannabinoid profiles.
We engage in the human-directed evolution of cannabis populations through the selective breeding and nurturing of various species of the cannabis plant. To achieve this, we leverage our extensive patient use and experience database to select and breed specific genetic profiles with the goal of isolating unique traits that may lead to improved patient outcomes.
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Over the course of more than 13 years and numerous plant generations, we have bred a wide assortment of cannabis strains covering a variety of cannabinoid profiles. We have developed a proprietary genetic bank, covering dozens of unique cannabinoid profiles, from which we extract growth batches for our current breeding facility. Our breeding is conducted in incubation rooms that are separately housed and therefore isolated from the rest of our cannabis production facility.
We are in the process of applying for protected breeding rights in Israel and seek to apply for protective rights in any jurisdiction in which such rights may be registered. See “Intellectual Property, Patents and Trademarks.”
Cultivation and Processing
In order to maintain a high degree of consistency across our production batches, we carefully optimize all elements of the cultivation process, including the light spectrum, temperature, humidity, radiation, irrigation, air circulation and soil-less substance in which our plants are grown. Cultivation is not conducted in outdoor areas or in the open soil. At our cultivation facilities, we nurture and cultivate production batches as clusters of single-genus cannabis inflorescences that are genetically identical, cultivated under the same protocols and harvested at the same time. The cannabis batches are isolated in pots and are tested by licensed third-party laboratories to ensure their quality and consistency.
Currently, there are three methods for cultivating cannabis: outdoors, in greenhouses and indoors. Cultivation in an outdoor environment, including cultivation in a typical greenhouse, introduces variables that may affect the quality and consistency of the resulting product. For this reason, outdoor and traditional greenhouse growing techniques do not meet the standards required for pharmaceutical-grade cannabis products. Consequently, these methods are not applicable to our target industry. Indoor cultivation may occur in a controlled environment that enables the production of pharmaceutical-grade cannabis in compliance with applicable standards.
Through years of research and development, we have developed a unique climatized greenhouse approach incorporating the best of modern cultivation techniques and processes that meet the IMC-GAP standards while taking advantage of the cost efficiencies associated with utilizing the natural environment. Our climatized greenhouse technology is an improvement on the traditional greenhouse that enables compliance with the requirements for the production of pharmaceutical-grade cannabis. The climatized greenhouse technology enables us to control fully all aspects of the climate and other conditions affecting the cultivation of our cannabis crops. A key element of optimizing production yields while maintaining a standardized outcome is precision-based crop maintenance, which requires consistent inputs of irrigation and fertilization while controlling for diseases and pests. We control the first two inputs mainly through a centralized irrigation control center that utilizes modern sensors to monitor and regulate the daily quantity of water and fertilizer administered to each production batch. Our climatized greenhouses cost less, both in terms of costs for construction and operating expenses, and require less time to implement than wholly-indoor facilities, enabling us to scale up our crop size swiftly. For these reasons, our climatized greenhouses provide a cost efficient cultivation method while still enabling us to produce pharmaceutical-grade cannabis products that comply with GMP standards and this is our preferred cultivation method where it makes business sense.
We produce and package bulk product in our facilities, by harvesting the bloomed flower, trimming excess leaves, drying and curing inflorescences, and packaging the processed inflorescences into bulk quantities.
In addition, since we adhere to the IMC-GAP and IMC-GSP standards, it has established a compliance regime to meet its regulatory requirements. A quality assurance manager must sign off on each product batch that is released from our cultivating facilities which subsequently undergoes a physical inspection by the head of quality assurance. Any changes in the quality assurance process or to the cultivation facility must be authorized by the head of quality assurance and documented. The facilities are also subject to seven inspections per year from a third party inspector and four inspections per year by the head of quality assurance. Lastly, the cultivation sites are also subject to yearly inspections for GACP compliance by a third party for the EU-GMP certificate.
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Manufacturing
Prior to 2016, we operated throughout the entire value-chain to produce our products for medical use. When new Israeli regulations, which increased manufacturing costs, were adopted in 2016, we made a business decision to outsource the extraction and packaging services of our final product to manufacturers that had obtained certification, including GMP certification, under the new Israeli regulations. We currently use a GMP-certified manufacturer in Israel to produce our products and we are exploring our options to diversify our manufacturing through our global partnerships. We plan to always manufacture our products under conditions that meet the applicable GMP standards, whether in our own facilities or in third-party facilities across all geographies. We continue to explore the costs and benefits of our contract manufacturing relationships against the costs and benefits of conducting those activities in house.
Exclusive Partnerships
We have entered into the following partnerships, all of which provides us with exclusive relationships to distribute the noted products within certain geographical areas. While the partnership are at various stages in their development, we have yet to fully operationalize any of them and currently only operate in Israel (although Apria, Organigram and Tilray are our key suppliers and we have a vast variety of customers (licensed pharmacies) which include Super Pharm, although we do not depend on a single specific customers. Our products are distributed via Novolog and SLA, licensed distributors in accordance with the New Regulations. Michael Auerbach introduced Tilray to Intercure, but all of Intercure’s relationships with the noted entities are at arm’s-length and except as noted herein, none of these entities or their officers and directors are related to us or our management team. Management believes that these existing partnerships will allow Intercure to be well positioned following the resolution of certain regulatory matters and the partnerships becoming fully operational, but there is no assurance that this will take place, see “Applicable Laws and Regulations” and Item 3.D. “Risk Factors”.
Tilray
Tilray (NASDAQ: TLRY) is a global pioneer in the research, cultivation, production, and distribution of cannabis and cannabinoids, currently serving patients and consumers in 16 countries spanning five continents.
In December 2019, we established a strategic collaboration with Tilray for the purpose of providing us with access to existing and potential markets in Tilray’s operating territories. The collaboration between Tilray and us consists of a set of agreements with Tilray Portugal Unipessoal Ltd., a wholly-owned subsidiary of Tilray, pursuant to which, Tilray will import GMP-quality medical cannabis products from us (the “Tilray Agreements”). Tilray’s facility in Portugal has an annual maximum production capacity of 25 metric tons of cannabis.
Pursuant to the Tilray Agreements, during a 12-month period that ended on December 31, 2020, we have an option to purchase from Tilray’s production facility in Portugal, and import into Israel, up to 2,500 kilograms of packed dried inflorescence (GMP-quality medical cannabis) based upon agreed prices and quality standards. We plan to manufacture and transform these imported materials to Canndoc’s GMP-branded products. Final products will be distributed by Canndoc’s distribution channels to all pharmacies in Israel. In January 2020, we successfully completed the first ever commercial import of medical cannabis into Israel and have subsequently successfully completed several commercial shipments into Israel while launching the “CanndocDiamonds” family of products.
Further, pursuant to the Tilray Agreements, we may sell to Tilray, and export out of Israel, up to 5,000 kilograms of inflorescence cannabis, which will be distributed by Tilray under a co-brand and based upon agreed prices and quality standards for a 12-month period that ended on December 31, 2020. The Tilray Agreements contain a provision requiring that our products comply with the EU-GMP Standard. They are conditioned upon our ability to obtain a permit from the state of Israel to export the inflorescence cannabis out of Israel. In December 2020, we completed the first commercial export of our products, which consisted of several dozen kilograms, to the European Union as part of the Tilray Agreements.
As of the date of the registration statement, we agreed with Tilray that we are entitled us to additional shipments of cannabis products, subject to both parties obtaining the required permits, which are expected to be received by the end of the second quarter of 2021. Together with Tilray, we are exploring several more potential shipments.
The Tilray Agreements provide us with a seven-and-a-half year exclusivity period over all of the final Tilray-branded products sold in Israel.
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Organigram
Organigram (NASDAQ: OGI) (TSX: OGI), is a leading licensed producer of cannabis.
In June 2020, we entered into a contractual relationship with Organigram for the purpose of collaborating to develop, import and export medical cannabis products in the state of Israel and across Europe (the “Organigram Agreement”). Organigram’s facility located in New Brunswick has a potential annual capacity of 70 tons.
The Organigram Agreement specifies that, subject to obtaining the required permits, we will import from Organigram 3,000 kilograms of medical cannabis products from Organigram’s advanced indoor facility in Canada (“Indoor Products”) within a period of 18 months (the “Organigram Initial Period”). In accordance with the Organigram Agreement, we will produce and market the medical cannabis products imported from Organigram in pharmacies throughout Israel and Europe. We will be provided with the option to import from Organigram an additional 3,000 kilograms per year of medical cannabis products for a period of two years from the end of the Organigram Initial Period, under the same terms and conditions as those in place during the Organigram Initial Period. These products will be marketed under our “Canndoc Indoor” brand and we, and Organigram, will examine the possibility of selling these products under a joint brand, in compliance with and subject to the IMCA’s instructions. We will then manufacture and transform the imported product into Canndoc’s GMP-branded product. Final products will be distributed by Canndoc’s distribution channels to all pharmacies in Israel. In August 2020, we successfully imported our first shipment of the noted products from Organigram into Israel and successfully launched the “Canndoc Indoor” family of products.
The Organigram Agreement provides us with an aggregate of up to a seven-and-a-half year exclusivity period (in addition to certain other rights and subject to certain conditions) over all of the final Organigram-branded products sold in Israel.
Aphria
Aphria (NASDAQ: APHA) (TSX: APHA) is one of the largest leading worldwide cannabis production companies, with its “Diamond Facility” in Leamington, Ontario being one of the biggest and most advanced cannabis facilities in the world, and having an annual production capacity of 140 metric tons.
In August 2020, we entered into an agreement with Aphria (the “Aphria Agreement”) for the import of bulk cannabis products from Aphria’s facility in Canada into Israel. Pursuant to the Aphria Agreement, we will purchase from Aphria’s production facility in Canada, and import into Israel, up to 3,000 kilograms of “bulk” quality medical cannabis for a period of two years (“Aphria Initial Period”). We have the option to import up to 6,000 kilograms of additional product from Aphria for two additional periods of two years each. This option begins at the time on expiry of the Aphria Initial Period and under the same terms and conditions as during the Aphria Initial Period. We will then manufacture and transform the imported product from into Canndoc’s GMP-branded product. Final products will be distributed by Canndoc’s distribution channels to all pharmacies in Israel. In November 2020, we successfully imported our first shipment of the noted products from Aphria into Israel and successfully launched the “Canndoc Stars” family of products.
The Aphria Agreement provides us with an aggregate of up to a seven-and-a-half year exclusivity period (in addition to certain other rights and subject to certain conditions) over all of the final Aphria-branded products sold in Israel.
Charlotte’s Web
Charlotte’s Web (TSX: CWEB) (OTCQX: CWBHF) is the owner of one of the largest worldwide CBD brands.
In December 2020, we entered into a collaboration with Charlotte’s Web, under which we will be the sole partner of Charlotte’s Web in Israel, and through which its products will be marketed in Israel under a joint brand for the Israeli market, subject to certain conditions, including certain regulatory matters within central European countries and England (the “Charlotte’s Web Agreement”). The arrangement is subject to the receipt of the required regulatory agreements.
We will be responsible for obtaining the regulatory approvals required in order to register the purchased products and their importation and will take appropriate marketing and sales actions. Together with Charlotte’s Web, we will explore opportunities for clinical trials, product development and Israeli product manufacturing.
The Charlotte’s Web Agreement is for a period of five years (with a one year extension option) from the date that CBD is removed from the Israeli DDO (which has yet to occur). On December 8, 2020, Israel’s Minister of Health signed a new regulation that removed CBD from the Israeli DDO. For the removal to be completed, the regulation must go before the Knesset’s Committee on Health, Welfare and Labour for a vote and ratification. As the Knesset was dissolved on December 23, 2020, the regulation did not go before the committee. We believe that once a new government will form, the legislative process removing the CBD from the DDO will continue.
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Fotmer
Fotmer is a corporation established in Uruguay that cultivates and produces medical cannabis at an internationally high level. In December 2020, we entered into an agreement with Fotmer, under which we plan to import from Fotmer approximately 3,000 kilograms of quality medical cannabis products, each year for a period of four years (the “Fotmer Agreement”).
Pursuant to the Fotmer Agreement, we have agreed to pay Fotmer an initial amount of $650,000 as a down payment for the first shipment of medical cannabis products, which will be classified as a loan, bearing an annual interest rate of 5.51% and secured by Fotmer’s Canadian parent company, until the export and import permits for the first shipment of products are obtained. The initial shipments have not yet occurred but are expected to take place after inspections of Fotmer products have concluded.
Subject to the terms set out therein, the Fotmer Agreement provides us with a seven-and-a-half year exclusivity period over all of the final Fotmer-branded products sold in Israel.
Sales and Distribution
Israel
Under current regulations, patients fill prescriptions directly from a registered pharmacy. Our products meet all of the IMCA standards and are permitted to be sold within all registered pharmacies across Israel that are otherwise permitted to dispense medical cannabis to patients. We sell our products through pharmaceutical distributors and licensed retail pharmacy locations where patients can fill their prescriptions on-site or have our products delivered directly to their residence. Under the old regulations, the IMCA instituted a fixed price for the monthly supply of cannabis products, regardless of the dosage or form of use. Under the current regulations, the price of cannabis products is not fixed and will be determined primarily by market demand.
We have developed wholesale supply relationships with government and academic research institutions and private businesses throughout Israel and these relationships require minimal selling, administrative and fulfillment costs. We believe there is potential for the wholesale of finished, packaged products to other licensed producers, and we intend to pursue this sales channel as a part of our growth strategy.
SLE
In September 2019, we entered into a distribution agreement with SLE, a subsidiary of Teva Group Pharmaceutical Industries Ltd., a leading Israeli company in the health services field (the “SLE Agreement”).
Pursuant to the SLE Agreement, SLE will provide us with logistics, storage, collection and distribution services for our medical cannabis products throughout Israel for a term of three years, with two optional extensions of two years each. SLE holds an IMC-GDP distribution license and possesses an advanced logistics facility.
Novolog
In December 2020, we entered into a distribution agreement with Novolog, a leading Israeli company in the logistic health services field.
Pursuant to the noted agreement, Novolog will provide us with logistics, storage, collection and distribution services for our medical cannabis products throughout Israel for a term of three years, with two optional extensions of two years each. Novolog holds an IMC-GDP distribution license and possesses an advanced logistics facility.
Super-Pharm
In March 2020, we entered into a binding preliminary distribution agreement with Super-Pharm, the largest chain of pharmacies in Israel (which operates approximately 260 pharmacies) (the “Super Pharm Agreement”). Super Pharm currently operates 60 pharmacies that sell cannabis for medical purposes (the “Super Pharm Pharmacies”). Pursuant to the Super Pharm Agreement, Super Pharm agreed to purchase from us, and we agreed to sell to Super Pharm, 10,000 kilograms of our medical cannabis products for a period of 3 years. The Super Pharm Agreement requires our products to be in compliance with the IMC-GMP Standards.
The parties to the Super Pharm Agreement have covenanted to negotiate in good faith and enter into a detailed agreement within 90 days from the date of the Super Pharm Agreement. The parties, by mutual agreement have agreed to extend the said period to September 30, 2021 and negotiations of the detailed agreement remain ongoing. Pursuant to the Super Pharm Agreement, Super Pharm will be responsible for distributing the final products to each individual Super Pharm pharmacy, while we will provide professional training and clinical knowledge about our products to Super Pharm and Super Pharm Pharmacies over the term of the agreement.
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Europe
For the distribution of our pharmaceutical-grade cannabis products in Germany, we have entered into an import and wholesale distribution agreement with a pharmaceutical distributor. The import of our products into the European Union is subject to our local distributor obtaining the applicable import licenses under EU-GMP standards, and is subject to changes in the Israeli laws regarding the export of Medical cannabis products from Israel.
We have also entered into a joint venture agreement with a licensed EU-GMP pharmaceutical distributor that has a license to import cannabis into the United Kingdom for medicinal purposes. United Kingdom regulations currently allow importation of cannabis products for personal use only and place limits on the quantities of cannabis products that may be imported while restricting bulk shipments and the storage of inventory of cannabis products in the United Kingdom. We are currently working with the UK Partner to pursue strategies for importing sustainable amounts of our products into the United Kingdom. Further, we will continue to monitor the regulatory landscape for changes in the import-export laws. For clarification, as of this date, the joint venture is not commercially active and our products are yet to be sold in the United Kingdom market. For clarification, as of this date, the joint venture is not commercially active and our products are yet to be sold in the United Kingdom market.
Canada
We plan to distribute our products in the Canadian market under our brand via a joint venture with our Canadian partner, a domestic cultivator and producer with a distribution network of pain treatment centers across Canada. In addition, upon receipt of the required permits and licenses, we anticipate that our products will be distributed in Canada via our partner’s e-commerce platform. While our Canadian partner has finished construction on an indoor cultivation facility, as of the date of this registration statement, it has yet to receive the final manufacturing and production license from Health Canada to commercially grow pharmaceutical-grade cannabis.
The Rest of the World
Over the years, we have been building, and continue to build, an international distribution network, with the goal of identifying and partnering with established pharmaceutical distributors. We plan to always distribute our products under conditions that meet the highest standards, whether by ourselves or through a third party. We continue to explore the costs and benefits of our distribution partnerships against the costs and benefits of conducting those activities in house.
Research and Development
We believe that innovation is a key component of our competitiveness and growth in the medium and long-term and is driven by market research and analysis of potential new products and the development of new technologies. We engage in the research of agricultural techniques that utilize climatic advantages and our agrotech capabilities to improve the yield of cannabis plants in their production of various cannabinoids.
Since 2014, we have collaborated with various world-renowned research institutions, such as Technion – Israel Institute of Technology, Volcani Center (the research arm of the Israeli Ministry of Agriculture) and other universities and institutions accredited by the Israeli Council for Higher Education. As a result of these collaborations, we have enhanced our production capabilities, improved and optimized our genetics, and developed additional cannabinoid profiles. Our research and development operations also include collaborations with a renowned governmental institute as well as various research entities, researchers, start-up companies, mature companies and commercial entities holding licenses from the IMCA.
Clinical Trials
We have not completed any clinical trials using cannabis or cannabis-based products to date. We have received IMCA feasibility approval to initiate nine clinical trials and have commenced one phase 3 clinical trial. We will be the sponsor of nine of these clinical trials and will be the sole supplier of pharmaceutical-grade cannabis for all ten of the clinical trials. We initiated a phase 3 clinical trial in a leading Israeli medical center to study our product’s influence on cognitive and adjacent capabilities on children who are on the autistic spectrum. The phase 3 trial results are expected in 2022. The other nine clinical trials have not started and are expected to begin during 2022 or 2023. The company is currently conducting discussions with leading medical institutions to take part in these clinical trials.
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The table below provides additional details regarding our and our partners’ currently planned clinical trials:
| Our Planned Clinical Trials | ||||||||
| Phase of Development | Indication | Number of Patients | Primary Endpoint(s) | Secondary Endpoint(s) | ||||
| 2 | Adult Epilepsy | 52 | ●Change in median monthly seizure frequency over study period compared to 2-month baseline period
●Treatment-emergent adverse events and serious adverse events (SAEs) during treatment |
●Changes in seizure severity
●Change in speed of post-ictal recovery
●Changes in seizure characteristics (focal/generalized)
●Changes in quality of life based on QoL31
●Changes in sleep quality based on the Pittsburgh sleep questionnaire | ||||
| 2 | CINV related to Breast Cancer Treatment | 72 | ●SAEs during treatment | ●Changes in quality of life based on QoL-BC
●Changes in blood tests (protein, leukocytes)
●Number of CINV symptoms in the active-treatment arm compared to placebo evaluated using weekly symptom diaries and incidence of treatment-emergent AEs, overall and by CTCAE grade | ||||
| 2 | Parkinson’s Disease | 60 | ●SAEs during treatment
●Change in The Parkinson’s Disease Questionnaire |
●Changes in PD motor symptoms as assessed by changes in the MDS-UPDRS
●Changes in QoL based on Non Motor PD questionnaire
●Improvement in muscle cramps | ||||
| 50 |
| 2 | Diabetic Neuropathy | 44 | ●Neuropathic Pain Diagnostic Questionnaire score (scale 4-10) | ●To assess the safety and tolerability of cannabis in diabetic subjects with neuropathic pain
●To assess the Quality of Life change by SF- 36
●To assess changes in fasting glucose and insulin dose | ||||
| 2 | Fibromyalgia | 62 | ●Safety and tolerability of the product based on AEs during treatment
●To determine the effect of the product on Fibromyalgia Impact Questionnaire
●To determine the effect of the product on Physician Global Impression of Change |
●To determine the improvement in FMS Widespread Pain Index and Symptom Severity Score.
●To determine the effect of the product on Medical Outcome Scale SF-36 | ||||
| 2 | Rheumatoid Arthritis | 64 | ●Safety and tolerability of the product based on Adverse Events during treatment
●To determine the effect of the product on ACR20 |
●Mean change from baseline over time of Global Visual Analogue Scale (VAS)
●Change from Baseline in VAS of the Physician Assessment of Arthritis
●Change in inflammatory markers – CRP and ESR
●Determine the effect the change from baseline in SF-36 | ||||
| 2 | Post-traumatic Stress Disorder | 50 | ●Safety rate of AEs
●Improvement in Insomnia Severity Index Score
●Improvement in Pittsburgh sleep quality index-addendum (PSQIA) score |
●Improvement in PTSD Checklist for DSM-5
●Determine the latency to persistent sleep and total sleep hours based on actigraph recordings
●Improvement in quality of life measured by SF-36
●Improvement of general quality of life, measured by SF-36
●Improvement in Physician Overall Impression of Change | ||||
| 2 | Lumbar Radiculopathy | 50 | ●Safety and tolerability of the product based on Adverse Events during Treatment
●To evaluate the painrelieving effect of CD-008 sublingual drops, in addition to standard of care, on Lumbar radiculopathy |
●To define the advantage of CD-008 sublingual drops +SOC versus SOC alone on Lumbar radiculopathy | ||||
| 2 | Radicular Pain | 36 | ●Safety of the product | ●To evaluate Pharmacokinetics (drug’s absorption, distribution, metabolism, and excretion continues) of cannabis oils in Radicular Pain patients
●To determine Pharmacodynamics (early estimates of activity and potential efficacy) of different cannabis oils in Radicular Pain patients by measurement of pain |
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| Current Clinical Trial | ||||||||
| Phase of Development | Indication | Number of Patients | Primary Endpoint(s) | Secondary Endpoint(s) | ||||
| 3 | Pediatric/Young Adult Autism | 75 | ● Characterize the effects of medicinal cannabis in different THC to CBD ratios on associated morbidity on the autistic spectrum
● Examine the influence of cannabis treatment on cognitive and adjustive capabilities
● Test the levels of THC and CBD levels in children treated with cannabis |
● Identify side effects and reasons for care failure
● Examine if CBD-rich cannabis is efficient in treating sleeping problems and reducing motoric restlessness and behavioral issues in children with autism
● Test change in hormonal levels and biochemical indices before and during the treatment | ||||
Note: QoL31 = Quality of Life Scale-31, a clinical standard in mental health; QOL-BC = Quality of Life Instrument - Breast Cancer, a clinical standard measured in breast cancer patients; CTCAE = Common Terminology Criteria for Adverse Events; MDS-UPDRS = Movement Disorder Society - Unified Parkinson’s Disease Rating Scale; QoL = Quality of Life; PD = Parkinson’s Disease; SF-36 = 36-Item Short Form Health Survey; FMS = Fibromyalgia; ACR20 = American College of Rheumatology’s composite score of rheumatologic improvement; CRP = C reactive protein; ESR = Erythrocyte Sedimentation Rate; DSM-5 = Diagnostic and Statistical Manual of Mental Disorders
Our ability to sell our products in any of our target territories is not dependent on the outcome of these trials; however, without clinical trial results we are limited in the claims that we may make with regard to the efficacy of our products. We hope that the results from these clinical trials will support the effectiveness of our GMP pharmaceutical-grade cannabis for the tested medical indications. The results of any clinical trial could affect our ability to market our products and may result in less acceptance or greater regulation of our products.
We will be able to use the data collected from the clinical trials for any commercial use and marketing purposes as agreed between our research partners and us and noted in the agreements, in each case, subject to applicable laws.
Assaf Harofeh
In November 2019, we entered into an agreement with the R&D Fund of Shamir (Assaf Harofeh) Medical Center, a lead research facility, for the purposes of examining the effect of our products for medical uses on approximately 75 pediatric autism examinees (the “Autism Research”). The Autism Research will be conducted at Assaf Harofeh Hospital over a period of three years.
Partnerships
Our production system (wholly owned or through partnerships) currently consists of two active facilities in Israel and one active facility in Denmark. Our Canadian partner has also constructed a cultivation facility and is in the process of obtaining final manufacturing and production licenses from Health Canada to commercially grow pharmaceutical-grade cannabis. We have access to production facilities that, assuming that the facilities are fully operational at their maximum capacity and all regulatory approvals are received, can produce over 100,000 kilograms of high-quality medical cannabis per year.
Israel
We have established two partnerships with kibbutzim in Israel for the purpose of breeding, cultivation and harvesting of pharmaceutical-grade cannabis. Our partnerships in Israel are subject to certain risks relating to land uses, see “Risk Factors”.
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The Northern Kibbutz
As noted above, we have rights to our production facility in northern Israel through a joint venture with Beit HaEmek Kibbutz, a kibbutz located in the northern region of Israel (the” Northern Kibbutz”). Our relationship with the Northern Kibbutz is governed by a partnership agreement (the “Northern Kibbutz Agreement”, establishing the “Northern Kibbutz Partnership”), entered into in May 2015. We hold 70% of the voting rights and rights to profits and losses of this partnership and the Northern Kibbutz holds the remaining 30% of such rights. The operation of the venture is done by an unregistered corporation according to the Northern Kibbutz Agreement. The Parties entered into an amendment agreement, pursuant to which and subject to the IMCA approval and the approval of the Israeli tax authorities, the operations of the Northern Kibbutz will be transferred to an “Agricultural Cooperative Organization” owned by the parties as mentioned above (70% Canndoc and remaining 30% of the Kibbutz). As of the date of this registration statement, the application for such an amendment is pending IMCA approval. During this time period and regardless of the outcome of the noted approvals, the parties agreed that the operations will continue as usual.
Under the terms of the Northern Kibbutz Agreement, the Northern Kibbutz will make the facility available for use by the partnership. The Northern Kibbutz has rights to lease the site, which it holds pursuant to a lease, dated April 26, 1990, between the Northern Kibbutz and the Israel Land Administration (the “Land Administration”). The initial term of the lease is forty-nine (49) years, ending on September 30, 2038 and the term is automatically renewed for an additional forty-nine (49) years subject to the terms of the lease. The Land Administration may cancel the lease with regard to areas of the site where protected natural resources are found. The Land Administration also has the right to pass, or allow another to pass, through the site, in the site or over the site, water, drainage, sewage or gas pipes, electric and telephone poles, electric and phone cables, or similar rights of way. The Northern Kibbutz has the right to make a claim for damages that occur as a result of the granting of such rights of way.
The Northern Kibbutz Agreement contains customary representations and warranties, ownership, confidentiality, noncompete, indemnification and insurance provisions. The Northern Kibbutz Agreement has an initial term of five years, with the addition of three extensions spanning five years each, which are automatically renewed, subject to compliance by the parties with the terms and conditions of the Northern Kibbutz Agreement. The Northern Kibbutz is entitled to terminate the Northern Kibbutz Agreement for any reason whatsoever, by giving an advance notice of the earlier of 18 months, or until such time where we find an alternate growing location and obtain the necessary approval from the appropriate regulatory authority to operate at such a location. We are entitled to terminate the Northern Kibbutz Agreement for any reason whatsoever, by giving an advance notice of three months. If we terminate the Northern Kibbutz Agreement, absent good cause, the Northern Kibbutz will be entitled to compensation in the amount of NIS 200,000. The Northern Kibbutz will not be entitled to retain any inventory of pharmaceutical-grade cannabis or products, nor any documents.
The Southern Kibbutz
As noted above, we have also entered into an agreement with Kibbutz Nir-Oz, a kibbutz located in the southern region of Israel (the “Southern Kibbutz”), to establish a large-scale production facility in southern Israel, which will also utilize climatized greenhouses and operate in tandem with our facility in northern Israel. Our relationship with the Southern Kibbutz is governed by a partnership agreement (the “Southern Kibbutz Agreement”, establishing the “Southern Kibbutz Partnership”), entered into in April 2019. We hold 74% of the voting rights of this partnership and the Southern Kibbutz holds the remaining 26% of such rights. The Kibbutz will be eligible to 26% of the profits of the partnership, once it starts generating revenue.
Under the terms of the Southern Kibbutz Agreement, the Southern Kibbutz has agreed to make the site available for use by the Southern Kibbutz Partnership during the term of the Southern Kibbutz Agreement. The Southern Kibbutz has rights to lease the site, which it holds pursuant to a lease, dated June 22, 2016, between the Southern Kibbutz and the Land Administration.
The Southern Kibbutz Agreement contains customary representations and warranties, ownership, confidentiality, noncompete, indemnification and insurance provisions. The Southern Kibbutz Agreement requires the consent of the Southern Kibbutz for certain decisions, including approval of (v) the sale of the entire assets of the Southern Kibbutz Partnership or a material part thereof or the transfer of a material business operation of the Southern Kibbutz Partnership to any other person or corporation; (w) dilution of rights or holdings of the Southern Kibbutz in the Southern Kibbutz Partnership or any other action that might affect the rights of the Southern Kibbutz; (x) change in the business of the Southern Kibbutz Partnership, including the place of its business, entry into a sphere of activity that is not part of the business of the Southern Kibbutz Partnership or termination of an existing business operation of the Southern Kibbutz Partnership, and (y) transactions between the Southern Kibbutz Partnership and related parties. The Southern Kibbutz Agreement has an initial term of ten years, with an option to extend the term for an additional ten years. This extension option is automatically renewed, subject to compliance by the parties with the terms and conditions of the Southern Kibbutz Agreement. Each party to the Southern Kibbutz Agreement is entitled to terminate the Southern Kibbutz Agreement only in the event of an uncured breach, insolvency of the other party or force majeure event. Upon expiration of the term, the Southern Kibbutz will retain all fixtures and we shall not be entitled to any reimbursement for any investment or appreciation attributed to the facility or its land.
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Under the terms of each of the Israeli Partnerships, we have agreed to provide growing materials and equipment for the production of pharmaceutical-grade cannabis. We maintain ownership of the genetic bank and the climatized greenhouses used on the respective properties. We own the equipment used during the cultivation process, including equipment for lighting, temperature, humidity, radiation, and irrigation control, extraction facilities, and other equipment necessary for complying with the IMC-GAP standards. The operations of the partnership are carried out by our employees and we receive a fee from the partnership for the use of our employees.
The Israeli Partnerships have no right in any of our other activities, including the processing of cannabis or any collaborations between us and our other partners within or outside of Israel. The profits of each partnership are divided between us and our respective Israeli partner according to our and their respective percentage holdings in the partnership.
The facilities located in the Southern Kibbutz are one of the largest medical cannabis production sites in Israel and in the world, covering a total area of 17 million square feet, of which 300,000 square feet are operation and produce up to 10,000 kilograms of pharmaceutical-grade cannabis per year. Assuming that the Southern Kibbutz is fully operational at its maximum capacity and all regulatory approvals are received, full operations of its facility will allow us to produce 88 tons of pharmaceutical-grade cannabis per year. The development of the southern site is carried out in a modular manner in accordance with the regulatory developments concerning the export of medical cannabis from Israel.
Further, in December 2020, we received a permanent license from the IMCA for our facilities located in the Southern Kibbutz for the handling and possession of dangerous drugs under Sections 6 and 7 of the Israeli DDO. The license permits us to breed and cultivate cannabis plants and process inflorescences and plants under IMC-GAP-quality conditions, subject to customary limitations.
We plan to bring our facilities located in the Southern Kibbutz to their full operational capacity subject to increased demand for our products, finalization of export regulations from Israel and the import regulations to the European Union and other regulatory approvals that are required for the expansion of production. We do not have any specific plans regarding the expansion of our capacity at facilities located in the Southern Kibbutz at this time.
Denmark
As noted above, in May 2020, we entered into a strategic supply agreement (the “EU Agreement”) with a company incorporated in Denmark (the “EU Partner”). According to the agreement, the EU Partner will supply an aggregate of 11,700 kilograms of quality EU-GMP-standard medical cannabis products to us for a period of 3 years. The EU Agreement provides that the EU Partner, who is the owner of an advanced cultivation and manufacturing facility in Denmark that is approved by the EU-GMP-standard and holds all the licenses and permits required for cultivating, manufacturing, distributing and marketing the products sold to us. The EU Partner will be responsible for the entire cultivation and production process and for the logistical process of transporting and packaging the sold products according to our requirements. We will be responsible for marketing and distribution efforts through our own efforts and through our distribution partnerships in the EU. The EU Partner will be entitled to a share of the profits from sales of the products distributed through our distribution network. This facility is operational and as of the date of this registration statement, we are in the process of finalizing licenses to import our products from Denmark into Germany pursuant to the EU Agreement. Notwithstanding the importing and exporting of the products, the sale of the products pursuant to the EU Agreement has not commenced as of the date of this registration statement and this activity does not have a material impact on our finances. During 2020, the Company completed the registration process for several products cultivated through the Company’s partnership in Denmark, which products are now registered in Germany under the Federal Institute for Drugs and Medical Devices (BfArM) and are authorized for sale in Germany. The first sales of the Company’s branded products in the German market are forecasted for the fourth quarter of 2021. The company plans to eventually obtain essential regulatory licenses in order to be able to buy, sell and distribute Medical cannabis in other EU countries.
Germany
As noted above, in June 2019, we entered into a non-exclusive distribution agreement with a licensed distributor in Germany, for the purpose of distributing our pharmaceutical-grade products within Germany (the “German Distribution Agreement”). The German Distribution Agreement contains customary obligations, intellectual property, confidentiality and indemnification provisions. The German Distribution Agreement has an initial term of 36 months, with an option to extend the term by mutual written consent of the parties. Each party to the German Distribution Agreement is entitled to terminate the German Distribution Agreement in the event of an uncured material breach of the agreement, the insolvency of the other party or a change of control event. The sale of the products pursuant to the German Distribution Agreement has not commenced as of the date of this registration statement and this activity does not have a material impact on our finances. During the first quarter of 2021, our German partner obtained an import license to import cannabis products from Denmark. The first shipment of Canndoc branded products which were cultivated under the EU Agreement will be delivered to our German partner during the last quarter of 2021. Due to the current levels of demand in the German market, we don’t estimate this partnership to have a material effect on our financial reports.
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United Kingdom
In May 2020, we entered into a joint venture (the “UK JV Agreement”, establishing the “UK Joint Venture”) with a United Kingdom company (the “UK Partner”). The UK Partner owns a manufacturing plant operating system under the EU-GMP standard and possesses all the licenses and permits required for the importation and exportation of medical cannabis products to England, Wales, Scotland, Northern Ireland and Ireland. We own 51% of the UK Joint Venture and the UK Partner owns the other 49%.
According to the UK JV Agreement, subject to the receipt of all required permits and approvals, we will sell to the UK Partner, and the UK Partner will purchase from us, all medical cannabis products we produce in Israel and any other territories where we operate. According to the UK JV Agreement, the UK Partner will be responsible for the packaging of our exported products in accordance with local regulations, as well as the overall distribution system. Since the required permits and approvals were not yet obtained, no revenue was generated under the UK Joint Venture and no material expenses were incurred to date.
The UK Partner will be responsible for providing an EU-GMP certified facility, including all equipment and other infrastructure, for the operations of the joint venture. Our UK Partner will support all of the joint venture’s local needs, including without limitation, assisting in maintaining all required legal certificates for the joint venture’s full operation in England, Wales, Scotland, Northern Ireland and Ireland, including licenses for the import of pharmaceutical-grade cannabis products into the noted territories, with such licenses to be held by the joint venture.
Pursuant to the UK JV Agreement, the UK Partner is prohibited from distributing the cannabis products of other Israeli companies and we are prohibited from distributing our products in England, Wales, Scotland, Northern Ireland and Ireland, other than through the UK Partner. The sale of products under the UK JV Agreement has not commenced as of the date of this registration statement and this activity does not have a material impact on our finances.
United Kingdom regulations currently allow importation of cannabis products for personal use only and place limits on the quantities of cannabis products that may be imported while restricting bulk shipments and the storage of inventory of cannabis products in the United Kingdom. We are currently working with the UK Partner to pursue strategies for importing sustainable amounts of our products into the United Kingdom. Further, we will continue to monitor the regulatory landscape for changes in the import-export laws. For clarification, as of this date, the joint venture is not commercially active and our products are yet to be sold in the United Kingdom market.
Canada
As noted above, we have entered into an agreement to establish a joint venture with a Canadian partner for the purpose of producing, manufacturing and distributing our pharmaceutical-grade products in Canada for medical use. Our Canadian partner has finished construction on an indoor cultivation facility but has not received the final manufacturing and production license from Health Canada to commercially grow pharmaceutical-grade cannabis. The Canadian partner will supply personnel that will service the operations of the joint venture. Pursuant to our joint venture agreement with the Canadian partner, we have granted the joint venture a license to our intellectual property, including rights to use our “CANNDOC” brand. We are assisting the joint venture with logistical procedures within the production and manufacturing facility, and we are training our partner’s employees on our breeding and cultivation practices. We are entitled to 51% of the profits, losses, votes and expenses of the joint venture.
Austria
On April 4, 2021, we entered into a partnership with an Austrian entity to operate together in the developing cannabis markets in Austria and Luxembourg. Pursuant to the agreement, the partnership will replicate the successful model of our subsidiary Canndoc in Israel to establish and manage the distribution, marketing, and sales of the company’s products in selected countries in Europe. The partnership’s planned operations will be vertically integrated and will include both online and retail distribution for our branded products. The Austrian entity has committed to invest €10 million in an Austrian joint venture, which will be equally owned by the parties, with an option for the Austrian entity to increase its shares to 51% of all outstanding shares of the joint venture at any time. The company is working together with the Austrian partner on the establishment of the joint venture entity and we expect to start business operations during the fourth quarter of 2021.
Cookies
Cookies is US cannabis brand with retail outlets in eight states. Cannolam entered into an exclusive license agreement with Cookies during 2019 by which Cannolam will have the exclusive rights to use the Cookies brand in Israel. Cannolam opened a Cookies branded pharmacy in Jerusalem and is expected to open an additional branded pharmacy in Be’er Sheva during the second quarter of 2021.
In April 2021, we expanded our partnership with Cookies by entering into a letter of intent to expand the Cookies brand into Europe. According to the letter of intent, we will establish joint ventures in European countries that will focus on cultivating, manufacturing, and distributing Cookies branded products. In addition, we will cultivate Cookies branded products at our southern facility in Israel which we also plan will supply Cookies products to Cookies stores throughout Europe.
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Other Partners
In addition to the above, we entered into strategic and exclusive agreements with international leading companies and brands such as Tilray, Organigram, Aphria, Fotmer and Charlotte’s Web. See “Cultivation and Processing” –”Exclusive Partnerships”.
Additional Investments in the Biomed field
We have invested in companies in the biomed field. As of the date hereof, we hold approximately 9.33% of the issued and paid-up capital of Regenera Pharma Ltd., a company that is under liquidation and 0.72% of the issued and paidup capital of NovellusDX Ltd. Please see “Legal Proceedings” for a description of certain lawsuits that pertain to our interest in Regenera Pharma Ltd.
Competition
The medical-use cannabis industry is characterized by intense competition and an increasing focus on quality and standards. While we believe that we hold many competitive advantages within the pharmaceutical-grade cannabis market, we face competition from many different sources, which include other companies that produce and distribute cannabis for medical use, as well as major pharmaceutical, specialty pharmaceutical and biotechnology companies. We anticipate intensifying competition in the medical-use cannabis industry as new jurisdictions allow the production and distribution of cannabis products, new therapies are approved, and advanced technologies become available.
Within the pharmaceutical-grade cannabis industry, we currently compete directly with manufacturers in Israel, including Breath Of Life Pharma, Ltd. and IM Cannabis Corp., and internationally with local licensed producers such as Bedrocan International B.V. and Aurora Cannabis Inc. In Canada, we plan to compete with licensed producers that decide to market products in the Canadian medical-use cannabis market. In the future, we expect to compete with licensed producers that choose to distribute pharmaceutical-grade cannabis products in fully regulated jurisdictions. Any product that we successfully develop and commercialize will compete with existing therapies and new therapies that may become available in the future.
Many of our competitors will have substantially greater financial, technical and human resources than we do. Competitors may also have more experience developing, obtaining regulatory approval for, and marketing products or treatments in the markets where we operate or where we are planning to operate. These factors could give our competitors an advantage over us in recruiting and retaining qualified personnel, completing clinical development, and commercializing their products.
Intellectual Property
We have submitted trademark applications for our brand and logo in Israel, Canada, the United States and member states of the European Union. These applications are currently pending.
We are also in the process of applying for protected breeding rights in Israel, and intend to apply for protective breeding rights in any jurisdiction in which such rights may be registered, under the International Convention for the Protection of New Varieties of Plants (the “Plant Convention”), or any other applicable rules and regulations that provide legal protection, similar to the protection afforded to the owners of technological inventions, to the proprietary rights of breeders in the new plant varieties they breed.
The Israeli Plant Breeders’ Rights Law 5733-1973, which is based to a large extent on the Plant Convention, is regulated by the Israeli Registrar of Plant Breeders’ Rights in accordance with the decision of the Israeli Plant Breeders’ Rights Council. Under the Israeli Plant Breeders’ Rights Law 5733-1973, a breeder is entitled to exclusive rights for registered new plant varieties for a period of 20 to 25 years, depending on the type of plant, and during this period the plant may not be used without the breeder’s permission, subject to a limited number of exceptions. After registration in Israel, a breeder is able to distribute plant species in other jurisdictions that are members of the Plant Convention, while protecting their rights.
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Seasonality
We cultivate our cannabis mostly in climatized greenhouses suitable for the production of pharmaceutical-grade cannabis. Using the experience accumulated throughout approximately 13 years of cannabis production, we have learned to neutralize the possible effects of seasonality on our operations. We currently optimize the number of production cycles per year, according to a production plan that considers various parameters such as weather changes, costs, and the availability of suitable professional work force. Our crop yields are optimal if cultivated from early spring to late autumn and harvested from late spring to early winter. By cultivating within climatized greenhouses, we are able to produce pharmaceutical-grade cannabis throughout the entire year over five to six full 15-week cycles.
Applicable Laws and Regulations
We are subject to a variety of laws and regulations in Israel and abroad that involve matters central to our business, including the following:
Israel
The competent regulatory authority in Israel in all matters concerning the oversight, control and regulation of cannabis for medical production, use and research is the IMCA. The IMCA was established by the Israeli government under decision No. 3609, which also established an inter-ministerial safety committee, composed of representatives of government ministries, government authorities and other government bodies, for intergovernmental cooperation regarding the regulation of cannabis. The IMCA examines medical recommendations for the use of cannabis for medical purposes and in accordance with established procedures. The IMCA is also authorized to examine applications and issue permits to hold, use and research cannabis.
Regulations Governing the Use of Cannabis for Medical Purposes
Under the Israeli DDO, cannabis is defined as a “dangerous drug” and the use of cannabis is prohibited unless a license is duly issued by the IMCA or a competent government agency.
Pursuant to the Israeli DDO, the use of cannabis was allowed for patients and for medical purposes, in respect of certain medical conditions, under a special approval of the MOH.
In June 2016, the Israeli government published Resolution No. 1587, which established a new regulatory framework for the “medicalization” of cannabis. Pursuant to Resolution No. 1587, the IMCA adopted regulations expanding the number of qualifying medical conditions for treatment with medical-use cannabis to include such conditions as cancer, pain, nausea, seizures, muscle spasms, epilepsy, Tourette syndrome, multiple sclerosis (MS), amyotrophic lateral sclerosis (ALS), post-traumatic stress disorder (PTSD), autism, migraines, arthritis, Parkinson’s disease, residual limb pain, spinal cord injuries, HIV/AIDS, Crohn’s disease, colitis, inflammatory bowel disease and terminal illnesses.
Regulations Governing the Production, Manufacturing and Distribution of Cannabis for Medical Purposes
In March 2017, the MOH announced the New Regulations, which set out the standards suitable for each link in the chain of production and distribution of medical cannabis-based products. The goal of the New Regulations is to achieve the standardization, reproducibility and uniformity in product quality that is similar to those standards for existing conventional drugs.
Under the New Regulations, market participants are required to apply for various licenses for the production, manufacturing and distribution of medical cannabis-based products. Each license establishes that the licensee adheres to certain protocols and standards regarding the quality and standardization of practices for (1) propagation and breeding, (2) cultivation, (3) extraction, formulation and packaging, (4) storage and delivery and (5) pharmacies. In addition, the New Regulation requires that the whole operation be secured under appropriate conditions, in accordance with the IMC-GSP standard.
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Licenses are initially granted on a provisional basis, subject to the development and completion of a facility with adequate protocols and systems to meet the standards required by the license. Applicants are not officially permitted to breed, cultivate, manufacture or distribute cannabis or cannabis products until the nursery, cultivation and manufacturing facilities are constructed and pass inspection by the IMCA. After the facilities pass inspection, the IMCA will issue the final cannabis licenses for each operation. The license is renewable subject to the limitations, terms and conditions of the IMCA, and licenses are subject to annual reviews of the licensees conduct and compliance with applicable laws and standards.
The production processes of cannabis plants used for the production of raw materials, the manufacturing and packaging processes and the procedures of distribution thereof, must all be carried out under the strict control and supervision and in accordance with the IMCA standards. Therefore, throughout the entire process, including the breeding phase, the production of the finished product and the distribution of the finished product through a pharmacy, each link in the chain is obliged to strictly maintain optimal and homogenous environmental conditions, and to strictly maintain defined and homogenous working procedures that are based on these standards. Regular and periodic analytical examinations shall be conducted throughout the entire chain of production, pursuant to the requirements, in order to ensure and to document that the plant complies with the analytical standards and the level of quality required during each of the phase of the chain of production.
Pharmacy Regulations
As part of the New regulation, pharmacy owners who wish to sell medical cannabis are required to apply for a dedicated license granted by the IMCA to sell, and store cannabis. Pharmacies are also subjected to regulations of several other governmental bodies including the MOH, the local municipality, and the district pharmacists.
Pharmacies must also obtain a business license. Granted by the MOH and the local municipality, business license to operate a pharmacy in Israel requires approval from several authorities including, the fire department, the police, and several other departments in the local municipality. The pharmacy is also required to comply with the MOH and district pharmacists’ requirements, which include different security measures, certain safety protocols, and compliance with the requirements for storage of narcotics (including cannabis).
In addition, pharmacies require a GDP license to sell medical cannabis. Granted by the IMCA after obtaining the final business licenses, the license to sell medical cannabis is subjected to compliance with GDP and GSP standards of the IMCA, which include, but not limited to, full compliance with the GSP protocols, which are dedicated security measures for storage (which is subject to certain capacity limitations). Under the GDP, only certified cannabis pharmacists are allowed to sell cannabis and advise patients.
Lastly, pursuant to applicable Israeli regulations, Intercure is prohibited from paying commissions or incentive fees, directly or indirectly, to pharmacists or doctors and Intercure has been complying with these requirements.
Medical cannabis transportation regulations
The transportation of medical cannabis is also subjected to the GDP and GSP standards and requires a transport license from the IMCA. Certain security measures are applied to the transportation of medical cannabis which vary in accordance with the quantities shipped and where the product is shipped. For example, shipping cannabis from manufacturers to wholesalers requires armed vehicles and with security personnel while home deliveries require lighter security measures as long as the quantity handles is less than one kilogram.
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Export & Import of Pharmaceutical-Grade Cannabis
The State of Israel is bound by the Narcotics Convention, which governs the import and export of cannabis between countries that are a party to the Narcotics Convention. The Narcotics Convention is an international treaty to prohibit the production and supply of specific drugs (nominally narcotic drugs and drugs with similar effects) except under license for specific purposes, such as medical treatment and research. The Commission on Narcotic Drugs and the World Health Organization were empowered to add, remove, and transfer drugs among the Narcotics Convention’s four schedules of controlled substances. The International Narcotics Control Board was authorized to administer controls on drug production, international trade, and dispensation. The United Nations Office on Drugs and Crime was delegated the Board’s day-to-day work of monitoring compliance in each country and working with national authorities to ensure compliance with the Narcotics Convention. The Narcotics Convention has 186 state parties, including all the countries in which we operate and plan to operate.
From an export perspective, in January 2019, the Israeli government approved the export of pharmaceutical-grade cannabis and cannabis-based products. As of the date of this registration statement, we believe that, as a partial result of government instability, permanent approval and regulation of the export of pharmaceutical-grade cannabis and cannabis-based products has not yet been enacted. Nevertheless, during the fourth quarter of 2020, the Israeli government, as part of a pilot project to issue export permits for licensed producers, granted us a temporary export permit. The pilot program (as well as our temporary export permit) was set to expire on December 31, 2020, but was subsequently extended to March 2021.
From an import perspective, in January 2020, due to a shortage in the Israeli market of pharmaceutical-grade cannabis, the Israeli MOH and the IMCA expedited the process of approving import licenses of such cannabis, and for the first time ever, pharmaceutical-grade cannabis and cannabis-based products were imported into Israel. In October 2020, the IMCA published a directive that included updated qualifications for a licensee to receive an import license and the guidelines under which such import may take place.
Regulation regarding CBD
On December 8, 2020, Israel’s Minister of Health signed a new regulation that removed CBD from the Israeli DDO. For the removal to be completed, the regulation must go before the Knesset’s Committee on Health, Welfare and Labour for a vote and ratification. As the Knesset was dissolved on December 23, 2020, the regulation did not go before the committee. We believe that once a new government will form, the legislative process removing the CBD from the DDO will continue.
The European Union
On February 13, 2019, the Members of the European Parliament adopted a resolution on the use of cannabis for medicinal purposes (“Resolution 2018/2775(RSP)”). Resolution 2018/2775(RSP) called for a legal definition of “medical cannabis” in order to clearly distinguish between cannabis-based medicines approved by the European Medicines Agency or other regulatory agencies and cannabis for recreational or industrial use that is not regulated by the same standards. Resolution 2018/2775(RSP) also called for increased research into the possible uses of THC, CBD and other cannabinoids for medical treatment, including their effects on the human body, and promotion of equal access to cannabis-based medicines by ensuring that health insurance schemes cover effective cannabis-based medication.
There is no formal EU definition of “medical cannabis.” Medical cannabis can be described as whole-plant cannabis-derived products (generally cannabis flower or oils) that are licensed by member state health systems for prescription by a physician. As recognized by the European Monitoring Centre for Drugs and Drug Addiction, medical cannabis refers to a wide variety of preparations and products that may contain different active ingredients and use different routes of administration.
From a legal and regulatory perspective, there are two categories of medical cannabis products:
| ● | Cannabis-derived medicinal products - Cannabis derived medicinal products are products which have been granted a marketing authorization from a regulatory authority (the European Medicines Agency at the EU level or competent national authorities at EU member state level), after going through extensive clinical trials to test the products’ safety and effectiveness. These products are regulated as (cannabis-derived) “medicinal products” in accordance with the harmonized EU regulatory system set forth by EU Directive 2001/83/EC. To date, several cannabinoid-containing medicinal products have been authorized for marketing in the EU and certain EU member states, have authorized for marketing in their states plant-based products including, but not limited to, Sativex® (nabiximols) and Epidyolex® (CBD), and synthetic products Marinol® (dronabinol) and Cesamet® (nabilone). | |
| ● | Cannabis preparations for medical use – Cannabis preparations for medical use consist of products that may be authorized through national distribution and use authorizations or licenses in certain EU member states. This group of products includes, but not limited to, raw cannabis (such as the flowering tops, resin, and oils extracted from the plant). Alternatively, raw cannabis can be transformed by a pharmacist into a magistral preparation in accordance with a medical prescription, or the raw cannabis may already have been transformed by the manufacturer into standardized cannabis preparations. These cannabis preparations can vary greatly in composition, depending for example on the strain of cannabis, the growing conditions and how the preparations are stored. |
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Since the EU is not a party to the international conventions related to the control of drugs, the determination as to whether to implement the requirements of said conventions is made by the individual EU member states. The regulation of medical cannabis falls largely within the competence of the EU member states, which may decide to permit the medical use of cannabis preparations (without requiring a marketing authorization in accordance with EU Directive 2001/83/EC) under specific conditions. Pursuant to Article 5(1) of EU Directive 2001/83/EC (which relates to so-called “named patient use” of medicinal products), the use of medical cannabis can only be authorized by member states upon medical prescription and when there is a medical need for the patient.
While each country in the European Union has its own laws and regulations, there are many commonalities in the development of the medical-use cannabis markets in the EU. For example, in order to ensure the quality and safety of products for patients, many European Union countries only permit the import and sale of cannabis and cannabis-based products for medical use when the manufacturer can demonstrate a certification of compliance, issued by a competent member state authority, with the EU-GMP standards. Under the EU-GMP system, a competent authority of any European Union member state may conduct an inspection at a drug-manufacturing site, and, if the competent authority is satisfied that the EU-GMP standards are met, issue a certificate of EU-GMP compliance to the manufacturer for specified elements of the manufacturing process being carried out at that site. Each country in the European Union will generally recognize an EU-GMP certificate issued by any competent authority within the European Union as evidence of compliance with EU-GMP standards. Certificates of compliance issued by a competent authority in another country outside of the European Union, e.g. certificates based on the GMP guidelines of the World Health Organization (WHO), will also be recognized if that country has a mutual recognition agreement with the European Union.
Many European Union member states are signatories to the Narcotics Convention. Consequently, the import and export of cannabis among those countries must comply with the terms of the Narcotics Convention.
Regulation regarding CBD
On November 19, 2020, the European Union’s highest court, the Court of Justice of the European Union, ruled that cannabidiol (CBD) is not a narcotic drug (See Case C-663/18). The court conceded that while restrictions on the free movement of goods can be justified on the basis of a “public interest” objective, such as the “protection of public health”, such restrictions should be appropriate and should not go beyond what is necessary in order for the EU member state to obtain that objective. On the facts of Case C-663/18, the court implied that the restrictions in place to restrict the movement of CBD products were not found to be justified. This was due to the fact that the nation with the CBD restrictions in place did not restrict the import of synthetic CBD, which has the same properties as the CBD at issue. The lack of such a restriction on the movement of synthetic CBD suggested to the court that the impugned legislation was not appropriately designed to attain the objective it set out (that is, the objective of protecting public health).
Nevertheless, to date, the status of CBD, which can be included in different types of regulated products (e.g. cosmetics, food, etc.), remains unclear in the European Union. For example, with respect to cosmetic products, while the European Cosmetic Ingredient database highlights the cosmetic functions of CBD (i.e., its antioxidant, anti-seborrheic, skin conditioning and skin protecting properties), it also considers that its use in cosmetic products may be prohibited if it is prepared as an extract or tincture of cannabis in accordance with the Narcotics Convention. As the Narcotics Convention uses a narrow definition of cannabis limited to “the flowering or fruiting tops of the cannabis plant” and excludes the seeds and leaves of the plant, from an EU perspective, CBD may be used in cosmetics when it is obtained from the seeds and leaves (only) of cannabis plants. EU member state regulations on controlled substances may differ in their treatment of CBD products.
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Germany
The Act on the Amendment of Narcotic Drugs and Other Regulations (Gesetz zur Änderung betäubungsmittelrechtlicher und anderer Vorschriften) which came into force on March 10, 2017, introduced an exception to allow the prescription and sale of cannabis for medical purposes. Prior to March 2017, the import of cannabis was not permitted, and pharmacies could request medical cannabis from abroad for specific patients only in exceptional circumstances, subject to a special case-by-case approval issued by BfArM. Since March 2017, cannabis cultivated for medical purposes outside Germany can be imported and marketed in Germany by private companies provided those companies have obtained relevant licenses that are in line with the Narcotics Convention.
Germany permits the import of cannabis plants and plant parts for medicinal purposes under state control subject to the requirements under the Narcotics Convention and the Good Agricultural and Collection Practice, an annex to the EU-GMP standards.
German law does not place quantitative restrictions on imports, but requires importers, exporters, traders and others who put cannabis products on the German market to apply for a license under the Federal Narcotics Act (Betäubungsmittelgesetz), (“BtMG”). In other words, any person who wishes to cultivate, produce or trade in narcotic drugs, or without engaging in their trade, to import, export, supply, sell, otherwise place them on the market, or acquire narcotic drugs, requires a license issued by the Federal Opium Authority (Bundesopiumstelle). Permissions under such a license may be restricted, without limitation, in relation to:
(a) the kind of narcotic drugs and of the trade in narcotic drugs;
(b) the annual quantity and the stock of narcotic drugs; and
(c) the location of the sites.
In addition to a narcotics trade license, each import or export of narcotic drugs with a starting or end point in Germany must be authorized by BfArM. Importers and exporters, in each case, are required to submit an application for import/export authorization to BfArM. Applications for import permits must include the specifics of the contemplated shipment. Import permits are issued on a shipment-specific basis and generally have a three-month validity period. The import permit, once granted, will specify, among other details, for each shipment:
(a) the importer;
(b) the exporter;
(c) for every narcotic to be imported:
(i) the central pharmaceutical number (if available);
(ii) the number of package units;
(iii) the number of dosage units; and
(iv) the name of the narcotic and concentration of active substances.
Medicinal cannabis imported under the Narcotics Convention, subject to a license under the BtMG, may be placed on the market only by a registered pharmacist and only in the form of dried cannabis inflorescences or cannabis extracts in a quantity that is approved for individual prescription. BfArM has approved three cannabinoid profiles for medicinal use in Germany. Besides dried cannabis flowers and cannabis extracts, the ready-to-use drugs Sativex® and Canemes® as well as the drug prepared on prescription dronabinol are permitted in the German market.
Medical cannabis falls under the definition of a medicinal product, as defined in the German Medicines Act, and requires a Wholesale Trading License if a commercial entity engages in wholesale of medical cannabis. Wholesale trading is defined broadly and includes any professional or commercial activity involving the procuring, storing, supplying or exporting of medicinal products, with the exception of the dispensing of medicinal products to consumers.
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Government Regulations – Clinical Trials
In order to conduct clinical testing on humans in Israel, special authorization must first be obtained from the ethics committee and general manager of the institution in which the clinical studies are scheduled to be conducted, as required under the Guidelines for Clinical Trials in Human Subjects implemented pursuant to the Israeli Public Health Regulations (Clinical Trials in Human Subjects), 5740-1980, as amended from time to time, and other applicable legislation. These regulations also require authorization from the MOH, except in certain circumstances, and in the case of genetic trials, special fertility trials and similar trials, an additional authorization of the overseeing institutional ethics committee. The institutional ethics committee must, among other things, evaluate the anticipated benefits that are likely to be derived from the project to determine if it justifies the risks and inconvenience to be inflicted on the human subjects, and the committee must ensure that adequate protection exists for the rights and safety of the participants as well as the accuracy of the information gathered in the course of the clinical testing. Since, at this time, we expect all of the clinical trials involving our pharmaceutical-grade cannabis products to be conducted in Israel, we and our partners will be required to obtain authorizations from the ethics committee and general manager of each institution in which we and our partners intend to conduct our clinical trials, and in most cases, from the MOH.
Initial clinical trials (Phase 1 studies) assess how to safely administer and dose a drug with a small number of healthy volunteers. If those trials are successful, Phase 2 studies are conducted to explore the effectiveness of the drug for a particular medical indication over a range of doses and to determine the short-term side effects of such drug use. These studies typically involve a few hundred subjects. If Phase 2 studies are successful, pivotal Phase 3 studies are then designed to build on the information learned in the earlier studies, and to further study safety and assess the efficacy of the investigational drug for a particular medical indication in a defined patient population. Phase 3 studies can also provide additional safety data, including information regarding the long-term effects of the drug in certain patient groups and the efficacy of different doses of the drug. These later trials can sometimes involve the enrollment of several thousand subjects to provide the needed information about the investigational drug’s safety and efficacy.
The MOH has approved the use of pharmaceutical-grade cannabis as a treatment for certain symptoms and indications, subject to filing an application with the MOH and the IMCA by the patients and a subsequent receipt of approval. Clinical trials that study pharmaceutical-grade cannabis for these purposes do not require preclinical studies or Phase 1 trials as a condition for the approval of Phase 2 trials. However, we remain obligated under the MOH guidelines to notify the MOH if a study results in a Serious Adverse Event in connection with the use of the study drug. A “Serious Adverse Event” is defined as a reversible or an irreversible event for which any of the following is true: (i) caused death, life-threatening effects, persistent or significant disability or incapacity; (ii) caused severe or prolonged morbidity; required hospitalization or prolonged the duration of hospitalization; (iii) caused a congenital defect or harmed pregnancy as a result of treatment with the product during pregnancy; or (iv) other medically/clinically significant events, which may endanger a patient or require medical intervention to prevent the situations listed in (i) through (iii).
| C. | Organizational Structure. |
The following table sets forth the legal name, location and country of incorporation and percentage ownership of each of our current principal operating subsidiaries:
| Subsidiary Name | Country of Incorporation | Ownership Percentage | |||||
| Canndoc Ltd. | Israel | 100 | % | ||||
| Cannolam Ltd. | Israel | 50.1 | |||||
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| D. | Property, Plant and Equipment. |
Southern Israel Site
Through our partnership with Kibbutz Nir-Oz, we are establishing a large-scale production facility covering a total gross area of 1.7 million square feet in southern Israel, which will also utilize climatized greenhouses and operate in tandem with our facility in northern Israel. As of the date of this registration statement, this facility is operating in its first phase of development which uses 300,000 square feet of the available space and produces 10,000 kilograms of cannabis annually (with the 2021 production plan target set at 3.5 metric tons). Once the facility reaches full operating capacity, assuming that the facility is fully operational at its maximum capacity and all regulatory approvals are received, it will be able to produce 88 tons of pharmaceutical-grade cannabis per year. Our facility and the production processes implemented there are certified under the IMC-GAP standards as well as the IMC-GSP standards, which contain strict detailed protocols for security at the site. We hold licenses for nursery and cultivation issued by the IMCA for 12 months until December 2021, which in the end of this period, following the IMCA standard audit, we will extend it to additional periods of 3 years each with respect to this facility. We will continue to develop and extend the southern facility capacity based on the regulatory development and demand for our products. We believe that operating the southern facility at its current capacity will supply our production needs for the following twelve to eighteen months. We plan to bring our facilities located in the Southern Kibbutz to their full operational capacity subject to increased demand for our products, finalization of export regulations from Israel and the import regulations to the European Union and other regulatory approvals that are required for the expansion of production. We do not have any specific plans regarding the expansion of our capacity at facilities located in the Southern Kibbutz at this time.
Northern Israel Site
Through our partnership with Beit HaEmek Kibbutz, an Israeli collective agricultural community (a “kibbutz”), we own and operate our primary production facility, located in northern Israel, utilizing climatized greenhouses. This site currently occupies approximately 55,000 square feet with the capacity to produce up to 3,000 kilograms of pharmaceutical-grade cannabis per year. Our facility and the production processes implemented there are certified under the IMC-GAP standards as well as the IMC-GSP standards, which require strict detailed protocols for security at the facility. We hold licenses for nursery and cultivation issued by the IMCA that is set to expire in September 2023 with respect to this facility. We have the option to expand our production area at this facility to a total of approximately 160,000 square feet, which would increase our total production capacity to up to 10,000 kilograms of pharmaceutical-grade cannabis per year.
Head Office (Israel)
We have leased office space located in central Israel that houses our management, financial and administrative functions. Part of the office is leased by companies that are related to Mr. Alex Rabinovich, our majority shareholder, director and CEO. These leases were approved by the Audit Committee and the Board. The amounts payable under these leases are immaterial relative to our business.
| ITEM 4A. | UNRESOLVED STAFF COMMENTS |
Not applicable.
| ITEM 5. | OPERATING AND FINANCIAL REVIEW AND PROSPECTS |
| A. | Operating Results. |
Overview
The following discussion of our financial condition and results of operations is intended to convey management’s perspective on our operational performance and financial performance as measured in accordance with IFRS. We intend this disclosure to assist readers in understanding and interpreting the audited consolidated financial statements included in this registration statement. This section is based on, and should be read in conjunction with, those audited consolidated financial statements and the notes thereto.
The following discussion contains forward-looking statements. Actual results could differ materially from those that are discussed in these forward-looking statements. Factors that could cause or contribute to such differences include those discussed below and elsewhere in this registration statement, particularly under “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements”.
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Introduction
We, through our wholly owned (100%) subsidiary Canndoc, are a pioneer in the medical cannabis industry. Throughout our 13 years of operating experience, we have developed advanced production systems, secured long-term exclusive strategic agreements with other global leaders in medical cannabis, compiled a database cataloguing the treatment of thousands of patients, sponsored an extensive set of clinical trials, established sales of our products in all cannabis-licensed pharmacies throughout Israel, and secured our position as thought leaders in the global cannabis industry.
Since our initial entry into Israel’s medical cannabis industry, we have provided our products directly to thousands of patients with a focus on quality, advanced service, and the accumulation of genetic and clinical knowledge. Following the acquisition of Canndoc in early 2019, we implemented a growth strategy to establish our leadership in Israel and the global medical cannabis industry, consistent with a growing trend toward pharmaceutical quality standards.
Since the beginning of 2020, we have focused on accelerating and growing our commercial activity in major markets around the world. As part of this strategy, we have entered into exclusive collaborations with some of the largest international cannabis companies in the world including Tilray, Organigram, Aphria and Charlotte’s Web. These strategic agreements serve to advance our capabilities and emphasize our focus on delivering premium quality and branding to Israel and other target markets. We have expanded cooperation agreements for the production, marketing and distribution of our products in countries with supportive regulations such as Germany, the United Kingdom, Canada and more, all of which are pending the permanent approval of commercial cannabis exports from Israel.
Through Cannolam, we operate the private chain Givol™ which is the first and leading chain of pharmacies focused on medical cannabis in Israel. The chain currently includes ten pharmacies across Israel. In addition, the chain operates a nationwide ordering and delivery system that serves the entire medical cannabis patient community in Israel. The chain includes nine active pharmacies and another pharmacy under construction in the city of Be’er Sheva. Six of the pharmacies hold permits and licenses for the distribution of medical cannabis and we are in the process of obtaining those licenses for the other pharmacies. In addition, Cannolam has exclusive rights to leading international cannabis brands such as Cookies and Mr. Nice.
In 2019, we invested significant resources to upgrade and expand its production systems and establish a global network of advanced production facilities that meet the quality requirements and strict standards across target markets. In December 2020, the Company was granted a permit by the MOH, as part of a cannabis-export pilot program, for the commercial export of its products to Tilray as part of a strategic partnership between the companies. The export permit was obtained after the Company secured an import permit from the Portuguese authorities, demonstrating its products complied with the requirements of European regulation in Portugal and the EU-GMP standard. The export request is a continuation of the developments that have taken place in Israel in recent months and the company’s preparations for exporting its products.
Our production system, assuming that all facilities are fully operational at their maximum capacity and all regulatory approvals are received, allows for a maximum production capacity of over 100,000 kilograms of high quality medical cannabis. This system enables us to be flexible and efficient, and to meet the standards required to execute commercial exports from Israel and to serve growing demand in Israel and around the world.
We believe in the uncompromising quality of our products and we are leading the trend towards the pharmaceutical standard in the medical cannabis industry, both through a high quality, advanced production system and through extensive research and development with 9 clinical studies approved by the MOH and one active phase 3 clinical trial. We have acquired a unique knowledge throughout our 13 years of experience operating in the cultivation, growth and genetics of cannabis strains. Combined with our analyses of patient use and experience data, we are uniquely positioned to enter into research collaboration agreements with leading organizations and companies. In addition, we have invested in a production system that adheres to the strictest regulatory and quality standards. In doing so, we achieve the highest standard of product quality for our patients and for commercial research collaborations. We believe this will enable us to enter into future partnerships and agreements with pharmaceutical companies.
We, through our wholly-owned subsidiary, Canndoc, and our 50.1% interest in Cannolam, operate primarily in the cannabis sector. As of this date, our main reporting segment is our medical cannabis segment, which generates 100% of our revenue. In addition to that, as a result of our operations prior to its acquisition of Canndoc, have financial assets in the biomed sector that were made for investments purposes and do not represent a material focus of our current business.
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Recent Developments
On February 9, 2021, we entered into an amended and restated merger agreement (hereinafter: the “Arrangement Agreement”) with Subversive Real Estate Acquisition REIT LP, a limited partnership established under the Limited Partnerships Act (Ontario) and a special purpose acquisition company (SPAC) (“Subversive LP”). As a SPAC, Subversive had limited operational activity. As of December 31, 2020, its material assets consisted of USD $226 million in cash and securities held in escrow with no material liabilities. Pursuant to the Arrangement Agreement, on April 23, 2021 our subsidiary acquired all of the outstanding Units of Subversive LP, in exchange for our ordinary shares by way of a plan of arrangement (the “SPAC Transaction”). Concurrently with the SPAC Transction, Subversive LP conducted a non-brokered private placement of 6.5 million Limited Partnership Units for an aggregate amount of $65 million. At the closing of the SPAC Transaction, which occurred on April 23, the Company issued 15,650,280 ordinary shares to Subversive LP unit holders, including those that participated in the concurrent private placement. 5,237,000 of our ordinary shares were allocated as part of the SPAC Transaction and are subject to forfeiture unless the Company’s ordinary shares are listed on NASDAQ and obtain a target weighted average price per share of $13.00 (subject to appropriate adjustments) for any five (5) consecutive trading days during the thirty (30) trading days after the shares are traded on Nasdaq. Total net funds raised from the SPAC Transaction, after redemptions, and the private placement equalled USD $56 million.
Financial Overview
Revenues. Our revenue is principally generated from distributing and marketing our medical cannabis products.
Cost of Revenues. Our cost of revenues consists of salaries and related salaries and related personnel expenses, materials, car maintenance, and subcontractor costs.
Operating Expenses. Our current operating expenses consist of three components:
| ● | General and Administrative. General and administrative expenses consist primarily of salaries and related personnel expenses, professional service fees for accounting, legal, bookkeeping, directors’ fees and associate costs, depreciation and amortization, and insurance. | |
| ● | Research and Development. Our research and development expenses consist primarily of salaries, including share-based compensation and related personnel expenses, cost of third party consultants, equipment, patent costs, regulatory costs and travel expenses. | |
| ● | Selling and Marketing. Our selling and marketing expenses consist primarily of salaries, including share-based compensation and related personnel expenses to selling, marketing and business development and related personnel expenses. |
Financial Expenses and Income. Financial expenses and income consist primarily of interest on deposits, interest paid on leases and loans and foreign exchange gains and losses. For additional details regarding the manner in which we record financial expenses and income, see the discussion under the caption “Critical Accounting Policies and Estimates” below.
Taxes on Income. We are subject to income taxes in Israel. For additional details regarding our income taxes, see Note 18 to our audited consolidated financial statements included elsewhere in this registration statement, and the discussion in “Item 10E – Taxation” below.
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Non-IFRS Financial Measures
In this registration statement, we use certain non-IFRS financial measures to measure, compare and explain our operating results and financial performance. These measures are commonly used by companies operating in the cannabis industry as useful metrics for measuring performance. However, they do not have any standardized meaning prescribed by IFRS and are not necessarily comparable to similar measures presented by other publicly traded entities. These measures should be considered as supplemental in nature and not as a substitute for related financial information prepared in accordance with IFRS. We define such financial measures as follows:
“Adjusted EBITDA” means EBITDA adjusted for changes in the fair value of inventory, share-based payment expense, impairment losses (and gains) on financial assets, non-controlling interest and other expenses (or income);
“EBITDA” means net income (loss) before interest, taxes, depreciation and amortization; and
“EBITDA run rate” means EBITDA, annualized irrespective of the length of the applicable period.
“Run Rate Revenue” means revenue, annualized irrespective of the length of the applicable period.
These measures should not be considered in isolation or used in substitute for measures of performance prepared in accordance with IFRS. For a reconciliation of net losses from continuing operations to EBITDA and Adjusted EBITDA, please see “Results of Operations” below.
Financial Instruments and Financial Risk Exposure
We are exposed to a variety of financial risks, which results from our financing, operating and investing activities. The objective of financial risk management is to contain, where appropriate, exposures in these financial risks to limit any negative impact on our financial performance and position.
Our financial instruments are our cash, trade and other receivables, payables, other payables and loans. The main purpose of these financial instruments is to raise finance for our operation. We actively measure, monitor and manage our financial risk exposures by various functions pursuant to the segregation of duties and principals. The risks arising from our financial instruments are mainly credit risk and currency risk. The risk rate on loans is fixed. The risk management policies employed by us to manage these risks are discussed below.
Credit risk
Credit risk arises when a failure by counterparties to discharge their obligations could reduce the amount of future cash inflows from financial assets on hand at the balance sheet date. We closely monitor the activities of our counterparties and control access to our intellectual property, which enables us to ensure the prompt collection of customers’ balances. Our main financial assets are cash and cash equivalents as well as other receivables and represent our maximum exposure to credit risk in connection with its financial assets.
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Capital management
We consider our capital to be comprised of shareholders’ equity. Our objectives in managing our capital is to maintain our ability to continue as a going concern and to further develop our business. To effectively manage our capital requirements, we have a planning and budgeting process in place to meet its strategic goals. In order to facilitate the management of our capital requirements, we prepare expenditure budgets that are updated as necessary depending on various factors, including successful capital deployment and general industry conditions. Management reviews the capital structure on a regular basis to ensure the above objectives are met. There have been no changes to our approach to capital management during the year ended December 31, 2020. There are no externally imposed restrictions on our capital.
Critical Accounting Policies and Estimates
The preparation of our consolidated financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the consolidated financial statements and reported amounts of expenses during the reporting period. Actual outcomes could differ from these estimates. The consolidated financial statements include estimates, which, by their nature, are uncertain. The impacts of such estimates are pervasive throughout the consolidated financial statements and may require accounting adjustments based on future occurrences. Revisions to accounting estimates are recognized in the period in which the estimate is revised and also in future periods when the revision affects both current and future periods.
The functional currency for each of our subsidiaries is the currency of the primary economic environment in which the respective entity operates; we have determined the functional currency of each entity to be the NIS. Such determination involves certain judgements to identify the primary economic environment. The Company reconsiders the functional currency of its subsidiaries if there is a change in events and conditions which determine the primary economic environment.
The critical judgments and significant estimates in applying accounting policies that have the most significant effect on the amounts recognized in the consolidated financial statements are:
Biological assets
The fair value of biological assets and the cost of inventory at point of harvest is determined based on the overall estimates of management (key assumptions - expected selling price according to the determined arrangements, completion and processing costs, percentage of mature plants), changes in assumptions used to measure fair value may affect the fair value of biological assets or the net realizable value.
Shared-based payment transactions
Employees / other service providers of the Company are entitled to benefits in the form of the Company’s equity-settled share-based payment plans. The cost of equity-settled transactions with employees is measured according to the fair value of the equity instrument on the grant date. The fair value is established using a generally accepted options pricing model. When the Company makes changes to the terms of an equity-settled grant, an additional expense is recognized, beyond the original expense which was calculated in respect of the change, which increases the overall fair value of the compensation which is granted or which benefits the employee / other service provider, according to the fair value on the date of the change.
Goodwill
For the purpose of determining whether impairment of goodwill has occurred, Company management estimates the value in use of cash-generating units to which goodwill has been allocated. changes in assumptions used to measure the Goodwill may affect our financial statements.
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Results of Operations
The following discussion of our results of operations for the years ended December 31, 2020, 2019 and 2018, including the following tables, which present selected financial information, is based upon our consolidated statements of operations contained in our consolidated financial statements for those periods, and the related notes, included in this registration statement.
For the year ended December 31 | ||||||||||||
| 2020 | 2019 | 2018 | ||||||||||
| NIS in thousands (except for per share data) | ||||||||||||
| Revenue | 65,035 | 8,926 | - | |||||||||
| Cost of revenue before fair value adjustments | 34,649 | 7,456 | - | |||||||||
| Gross income before impact of changes in fair value | 30,386 | 1,470 | - | |||||||||
| Unrealized changes to fair value adjustments of biological assets | 3,202 | 3,076 | - | |||||||||
| Profit from fair value changes realized in the current year | (1,613 | ) | (3,067 | ) | - | |||||||
| Gross income | 31,975 | 1,479 | - | |||||||||
| Research and development expenses | 1,576 | 1,710 | - | |||||||||
| General and administrative expenses | 18,601 | 80,109 | 9,810 | |||||||||
Selling and marketing expenses | 8,440 | 2,693 | - | |||||||||
| Other expenses (income), net | 4,563 | (58,962 | ) | 324 | ||||||||
| Company’s share in the profit or loss of associate | - | 340 | 1 | |||||||||
Changes in the fair value of financial assets through profit or loss, net | 37,195 | (20,996 | ) | 577 | ||||||||
| Operating loss | 38,400 | 3,415 | 10,712 | |||||||||
| Finance income | 620 | 141 | 6 | |||||||||
| Finance expenses | 528 | 3,292 | 2,092 | |||||||||
| Total finance expenses (income), net | (92 | ) | 3,151 | 2,176 | ||||||||
| Loss before tax | 38,308 | 6,566 | 12,798 | |||||||||
| Tax income | 2,268 | 673 | - | |||||||||
| Total comprehensive loss for the year | 36,040 | 5,893 | 12,798 | |||||||||
| Interest / Financing cost | (92 | ) | 3,151 | 2,176 | ||||||||
| Tax expenses (income) | (2,268 | ) | (673 | ) | - | |||||||
| Depreciation and amortization | 3,253 | 829 | 10 | |||||||||
| EBITDA | (35,147 | ) | (2,586 | ) | (10,612 | ) | ||||||
| Share-based payment expenses | 10,008 | 68,036 | 7,829 | |||||||||
| Other expenses (income), net | 4,563 | (58,962 | ) | 324 | ||||||||
| Impairment losses and (gains) on financial assets through profit or loss | 37,195 | (20,996 | ) | 487 | ||||||||
| Fair value adjustment to inventory | (1,589 | ) | (9 | ) | - | |||||||
| Adjusted EBITDA | 15,030 | (14,517 | ) | (1,972 | ) | |||||||
| Loss per share | ||||||||||||
| Basic and diluted loss | (1.42 | ) | (0.25 | ) | (0.71 | ) | ||||||
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The tables below shows the breakdown of our sales and profit by operating segment, both with regard to the medical cannabis segment and the biomed segment, for the financial years ended December 31, 2020, 2019 and 2018. Reconciliation of operating segment data includes the cancellation of assets of the medical cannabis segment, the addition of investments in accordance with the equity method, and the addition of assets and liabilities which were not attributed to segments.
| NIS in thousands | ||||||||||||||||
| Cannabis segment | Biomed segment | Reconciliations | Total | |||||||||||||
| Year ended December 31, 2020 | ||||||||||||||||
| External sales | 65,035 | - | - | 65,035 | ||||||||||||
| Segment profit (loss) | 14,250 | (37,195 | ) | - | (22,945 | ) | ||||||||||
| General and administrative expenses not attributable to segments | (10,892 | ) | ||||||||||||||
| Other expense, net | (4,563 | ) | ||||||||||||||
| Equity losses | - | |||||||||||||||
| Operating profit (loss) | (38, 400) | |||||||||||||||
| Segment assets (1) | 114,559 | 3,517 | 208,194 | 326,270 | ||||||||||||
| Segment liabilities | 23,935 | - | 10,227 | 34,162 | ||||||||||||
| NIS in thousands | ||||||||||||||||
| Cannabis segment | Biomed segment | Reconciliations | Total | |||||||||||||
| Year ended December 31, 2019 | ||||||||||||||||
| External sales | 9,609 | - | (683 | ) | 8,926 | |||||||||||
| Segment profit (loss) | (12,567 | ) | 20,996 | 895 | 9,324 | |||||||||||
| General and administrative expenses not attributable to segments | (71,361 | ) | ||||||||||||||
| Other income, net | 58,962 | |||||||||||||||
| Equity losses | (340 | ) | ||||||||||||||
| Operating profit (loss) | (3,415 | ) | ||||||||||||||
| Segment assets (1) | 47,846 | 40,087 | 194,300 | 282,233 | ||||||||||||
| Segment liabilities | (53,518 | ) | 27,486 | (26,032 | ) | |||||||||||
(1) In 2019 the Company consolidated Canndoc’s operating results for the first time, beginning in February 2019.
Comparison of the year ended December 31, 2020 to the year ended December 31, 2019
As mentioned above, through our wholly-owned subsidiary, Canndoc, and our 50.1% interest in Cannolam, we operate primarily in the cannabis sector. As of this date, our main reporting segment is our medical cannabis segment, which generates 100% of our revenue. In addition to that, as a result of our operations prior to its acquisition of Canndoc, we have financial assets in the biomed sector that were made for investments purposes and do not represent a material focus of our current business. Our investments in the biomed sector are mainly presented in our financial statement as Investment in Assets Measured at Fair Value through Profit or Loss.
Revenues – Total revenues was NIS 65 million in 2020, an increase of approximately 625% from 2019. The growth in revenue was primarily due to (a) the initial consolidation of Cannolam’s results as of the second quarter of 2020, which accounted for approximately NIS 11.1 million; and (b) the growing medical cannabis market, which has increased the demand for our products. Since the beginning of 2020, the Company has focused on accelerating and growing its commercial activity in the medical cannabis sector in the local market and in major markets around the world. As part of the growth strategy, the Company works in strategic and exclusive collaborations with international cannabis leaders Tilray, Organigram and Aphria. As a result of these partnerships, the party launched new products lines that led to high demand and increased market growth and market share.
The cannabis segment’s yearly revenues grew significantly, with revenue of NIS 65 million in 2020, or an increase of approximately 575% from 2019. Revenues for the cannabis segment in the fourth quarter grew to a record turnover of approximately NIS 27 million, representing an annual rate of approximately NIS 108 million, a growth of 15 times greater than the fourth quarter of 2019 and 20% greater than the third quarter of 2020.
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Gross profit after effect of fair value –We ended 2020 with yearly gross profit of approximately 50% as compared to 13% in 2019 in the segment, with continuous improvement from quarter to quarter when the profit in the fourth quarter of 2020 stands at 50% and reached NIS 14 million in the quarter, an improvement of over one thousand percent compared to the previous year where the profit rate was NIS 1 million, mainly in light of the accelerated growth in revenue. During the reporting period, Canndoc successfully completed the first commercial cycle of high-quality Canndoc products and began marketing them during the first quarter of 2021.
General and Administrative – Our general and administrative expenses were NIS 18.6 million in 2020, a decrease of approximately 77% from 2019. This decrease was mainly due to a decrease in share-based payment expenses, which amounted to NIS 10.0 million and NIS 68.0 million in 2020 and 2019, respectively. Significant share-based payment expenses were incurred in 2019 as part of the Company’s acquisition of 100% of Canndoc’s ordinary shares.
Marketing and selling expenses – Our Marketing and selling expenses were NIS 8.4 million in 2020 compared with NIS 2.6 million for the year ended December 31, 2019. The increase in the marketing and selling expenses were directly connected to the increase in revenues and other operating activity in 2019.
Changes in the fair value of financial assets through profit or loss, net – The changes in our financial assets in 2020 as compared to 2019 were due to our investment in assets measured at fair value through profit or loss in the biomed sector.
Other revenue (expenses) – The primary change in 2020 as compared to 2019 was due to gain from obtaining control in Canndoc in 2019 (from 38% to 100%). .
EBITDA – Our EBITDA was a negative NIS 35.1 million in 2020, as compared to EBITDA of a negative 2.6 million in 2019. This decrease was mainly due to impairment losses on financial assets of NIS 37.1 million in 2020.
Adjusted EBITDA- Our Adjusted EBITDA was NIS 15 million in 2020, as compared to Adjusted EBITDA of a negative NIS 14.5 million in 2019. The significant improvement is due to increase in our revenues and operations during 2020.
With regard to the medical cannabis segment, the company achieved positive Adjusted EBITDA of approximately NIS 9 million in the fourth quarter of 2020, representing an EBITDA run rate of approximately NIS 35 million. By comparison, EBITDA for the segment was approximately negative NIS 3 million in the fourth quarter of 2019. This increase was primarily due to revenue growth and improvement in gross profit.
Comparison of the Year Ended December 31, 2019 to the Year Ended December 31, 2018
Revenues – Total revenues was NIS 65 million in 2019, as compared to zero revenues in 2018. A substantial proportion of our revenue growth in 2019 was due the fact that Canndoc’s revenues were consolidated with that of Intercure for the first time in February 2019. In addition to that, the New Regulations came into effect in April 2019. As mentioned above, the New Regulations led to significant changes in our financial results given the changes to the pricing model.
Gross profit after effect of fair value - A substantial proportion of our gross profit growth was also due to the fact that Canndoc’s income was consolidated with that of Intercure for the first time in February 2019. While the New Regulation led to a moderate increase in the cost of sales, the relationships between the cost and revenue weren’t linear and revenue grew more than the costs.
General and Administrative – The material increase in expenses was primarily due to the consolidation of Canndoc’s expenses with those of Intercure for the first time in February 2019 and the overall increased activity in 2019.
Marketing and selling expenses – The changes in our marketing and selling expenses is due to the consolidation of Canndoc’s operation from the first time in February 2019.
Impairment losses (gains) on financial assets - The changes in our financial assets in 2019 as compared to 2018 were due to our investment in assets measured at fair value through profit or loss in the biomed sector.
Other revenue (expenses) – The increase was primarily due to the recognition of a profit in the amount of approximately NIS 58.8 million as a result of the fair value measurement of Intercure’s equity holdings (at a rate of 38%) in Canndoc, which were held before obtaining control in February 2019.
EBITDA – The increase was primarily due to the fact that Canndoc’s revenue was consolidated for the first time in February 2019.
Adjusted EBITDA- Our Adjusted EBITDA was negative NIS 14.7 million in 2019, as compared to Adjusted EBITDA of negative NIS 1.9 million in 2018. The decrease in the Adjusted EBITDA related to Canndoc expenses (General and Administrative and marketing and selling expenses) in 2019 which were consolidated for the first time.
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| B. | Liquidity and Capital Resources. |
Intercure’s approach to liquidity is to always have sufficient liquidity to meet its liabilities as they come due. This is achieved by continuously monitoring cash flows and reviewing actual operating expenditures and revenue against budget.
Intercure has been generating profits and has experienced positive cash flows, which are the expected to be the primary sources to fund its future operations. In addition, Intercure has cash reserves as a result of the completion of the noted private placements. Lastly, as a public company, Intercure may access the public and private markets to finance any additional needs it may have, including through the issuance of debt or equity securities.
Intercure does not expect to require any additional funding in the future as it projects a positive cash flow from operations.
The table below presents our cash flows for the periods indicated:
| NIS in thousands | December 31, | |||||||||||
| 2020 | 2019 | 2018 | ||||||||||
| Operating activities | 7,803 | (11,569 | ) | (1,486 | ) | |||||||
| Investing activities | (22,763 | ) | (26,087 | ) | (7,955 | ) | ||||||
| Financing activities | 25,289 | 63,234 | 10,614 | |||||||||
| Cash and cash equivalents | 37,888 | 27,338 | 3,416 | |||||||||
Operating Activities
The increase in 2020 relative to 2019 was primarily due high demand to its quality products lines, and shows a continuous improvement in all profitability indices which is reflected both in the improvement of operating profitability and in continuous improvement and positive cash flow from operating activities.
The increase in 2019 relative to 2018 was primarily due to the consolidation of Canndoc’s results with those of Intercure as a result of Intercure obtaining control over Canndoc in February 2019.
Investing Activities
The main investment in 2020 is in fixed assets in the expansion of Canndoc’s production capacity (investments in the southern facility).
The decrease in 2019 relative to 2018 was primarily as a result of the continued investment in fixed assets by expanding the production system (including investments in the Southern facility).
Financing Activities
The changes in 2020 relative to 2019 were primarily due to the private placement of Intercure Shares that was completed in August 2020 in the amount of NIS 38.1 million and repayment of NIS 13 million shareholder loan.
The increase in 2019 relative to 2018 was primarily due to a private placement that was completed in February 2019 in the amount of NIS 62 million.
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| C. | Research and Development |
For information concerning our research and development policies and a description of the amount spent during each of the last three fiscal years on company-sponsored research and development activities, see Item 5. Operating and Financial Review and Prospects—Results of Operations.”
| D. | Trend Information |
See Item 4, Item 5.A and Item 5.B.
| E. | Critical Accounting Estimates |
Not applicable.
| ITEM 6. | DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES |
| A. | Directors and Senior Management. |
The following table sets forth information regarding our executive officers, key employees and directors as of April 6, 2021:
| Name | Age | Position | ||
| Ehud Barak | 79 | Chairman | ||
| Alexander Rabinovich | 50 | Chief Executive Officer | ||
| David Salton | 61 | Independent Director | ||
| Lennie Grinbaum | 45 | External Director | ||
| Gideon Hirschfeld | 55 | External Director | ||
| Alon Granot | 60 | Director | ||
| Amos Cohen | 42 | Chief Financial Officer | ||
| Michael Auerbach* | 46 | Director Nominee | ||
| Rami Levy | 56 | Chief of Operations | ||
| Moshe Gavrielov | 41 | Vice President S&M |
* Subject to approval of the IMCA
Ehud Barak has served on Intercure’s board of directors as Chairman since March 2019. Mr. Barak also currently serves on the board of three other Israeli companies: Carbyne Ltd., Guardicore Ltd. and Cypertoka Ltd. Mr. Barak served as the tenth Prime Minister of Israel from 1999 to 2001. Before being elected Prime Minister, Mr. Barak completed an illustrious 36-year career in the Israeli Defense Forces (the “IDF”), as the most decorated soldier in its history. Mr. Barak served in top positions in the IDF, including Head of Planning, Head of Military Intelligence, Commander of the Central Command and Deputy Chief of General Staff. As Chief of the General Staff of the IDF, he was involved in the negotiation and implementation of the 1994 peace treaty with Jordan. Mr. Barak has also served Israel as Minister of the Interior, Minister of Foreign Affairs and Defense Minister. Mr. Barak holds a B.S. degree in mathematics and physics from the Hebrew University in Jerusalem and received his M.S.C in economic engineering systems from Stanford University. Since September 2016, he has served as Senior Fellow non-resident at the Belfer Center for Science and International Affairs at Harvard University. Since March 2013, he has served as founder and Chief Executive Officer of Ergo, a strategic consulting firm.
Alexander Rabinovich has served on Intercure’s board of directors since October 2018 and is also the Chief Executive Officer of Intercure. He has significant public company experience with both Nasdaq and TASE listed companies. Mr. Rabinovich is currently the Chief Executive Officer and director of Intercure and G.F.C Green Fields Capital Ltd., a public company listed on the TASE, engaged in investments in renewable energies. Mr. Rabinovich also serves on the board of directors of XTL Biopharmaceuticals Ltd., a public company listed on the Nasdaq, and, until 2014, served on the board of directors of Pilat Media Global PLC, a public company listed on TASE and on the Alternative Investment Market of the London Stock Exchange. Mr. Rabinovich holds a B.A. degree in economics and accounting from the University of Haifa.
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Alon Granot has served on Intercure’s board of directors since November 2020 and Canndoc’s board of directors since February 2019. Mr. Granot saved as Canndoc’s Chief Executive Officer from September 2019 to December 2020. From 2001 to 2018, Mr. Granot served as Chief Financial Officer and Executive Vice President at Frutarom Industries Ltd., or Frutarom, where he led mergers and acquisitions, business development and overall financial management until Frutarom was acquired for approximately $7.1 billion in 2018. From 2008 to 2016, Mr. Granot served as an external director at Inter Industries Ltd., a company that is publicly traded on the TASE. He also served as director in the semiconductor division of Kulicke & Soffa Industries, Inc., a public company listed on Nasdaq, from 1998 to 2001. Mr. Granot holds a B.A. in economics and business administration from Haifa University and received an M.A. in economics and business administration from Technion-Israel Institute of Technology.
Amos Cohen has served as Intercure’s Chief Financial Officer since March 2020. Mr. Cohen has over 15 years of financial and business experience, including as the CFO of Trendline Information and Communication Services Ltd., a TASE-listed company. Mr. Cohen has also served as the VP of finance at Walla (a Bazek group entity, which is the biggest telecommunications company in Israel) and as a director of FP&A at Reshet, the largest TV channel is Israel. Mr. Cohen holds a B.A. in economics from Ben-Gurion University and received an M.A. in accounting from College of Management Academic Studies.
David Salton has served as an independent director of Intercure Ltd. since December 2014. He has over twenty-five years of management experience related to investment banking, investment companies and funds, and start-up companies in the life science industry. In addition to Intercure, Mr. Salton serves as independent director of ARAN Ltd. (TASE: 1085265) and SHL Telemedicine Limited (SHLTN:SIX). Since October 2019, Mr. Salton has served as the Chief Executive Officer of Vilrility Medical, a startup company, developing consumer medical device. From 2009 to September 2019, Mr. Salton served as Chief Executive Officer and President of Dentack Implants Ltd. Mr. Salton has previously served as the Chief Executive Officer of DCL Technologies Ltd., an investment company (previously listed on TASE) and of Leumi Star Ltd., a public-non-listed venture fund. Mr. Salton also served as Chief Executive Officer of the following private companies: Dyn-Bioshaf Ltd.; Darely Pharmaceutical Ltd.; and DYN Diagnostics Holdings (2000) Ltd., and as board member of several companies listed on Tase. Mr. Salton also served as the Deputy General Manager and Head of Investments Sector for Leumi Partners with $100 million under management and 25 portfolio companies in various sectors. Mr. Salton holds, B.Sc., Economics & Management degree from the Technion, Industrial Engineering faculty, Israel.
Lennie Michelson Grinbaum has served on Intercure’s board of directors as an External Director since September 2015. Ms Grinbaum has in depth experience in Contract Research Organisation as a contract specialist and has worked for a subsidiary of a major Israeli financial institution. Ms Grinbaum holds an LLB in Law and a BA in Business from The Interdisciplinary Center Hertzliya as well as an MBA specializing in finance from Imperial College London.
Gideon Hirschfeld joined Intercure’s board of directors in 2018 as external director. Mr. Hirschfeld has extensive experience in business development for various corporations, such as the Israel Post, where he served as Director, Marketing and Business Development, from July 2009 until March 2016, the Israeli Basketball Super League Administration and Academon Stores Ltd.. Prior to joining Intercure’s board, Gideon initiated joint ventures for technology-based products and services, mainly in the logistics and distribution fields. Mr. Hirschfeld has a proven track record in financial matters related to current operations and short and long-range financial plans. Mr. Hirschfeld holds an MBA degree and MA degree in education as well as two BA degrees in international relations and political science from the Hebrew University in Jerusalem.
Michael B. Auerbach is an entrepreneur, investor, business consultant, and private diplomat. He founded Subversive Capital LLC as a vehicle to invest in radical companies whose core missions subvert the status quo and require sophisticated government and regulatory strategies for success. Michael is an expert in the global cannabis industry and is a significant shareholder and board director of both Tilray, Inc. and Privateer Holdings, Inc. Mr. Auerbach has served as Senior Vice President of Albright Stonebridge Group LLC, a global strategy firm since 2012, and he also serves as a general partner of Subversive Capital, a venture capital firm and a private investment fund. From September 2009 to July 2012, he was Vice President, Social Risk Consulting at Control Risks Group Limited, a global risk consulting firm which acquired Social Risks, LLC, a consulting firm Mr. Auerbach founded in 2007. From 2005 to 2007, he was Associate Director for The Century Foundation, Inc., a progressive, non-partisan think tank. He began his career in technology in 1983 when he founded Panopticon Inc., a venture capital incubator concentrating on internet and mobile technology, and served as its Chief Executive Officer until January 2004. Mr. Auerbach also sits on the boards of Privateer Holdings, Inc., Tilray, Inc. and Duco Advisors, Inc. He also sits on the boards of Next for Autism and the KiDS Advisory Board of New York University’s Hassenfeld Children’s Hospital. He has an M.A. in International Relations from Columbia University and B.A. in Critical Theory from the New School.
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Moshe Gavrielov has served as Canndoc’s Director and vice president of sales and marketing since January 2020. Mr. Gavrielov has nearly 20 of experience in the pharma sector, including 18-year career at Teva Pharmaceuticals in executive sales and marketing positions where he established distribution channels in emerging markets. Mr. Gavrielov holds a BSc in industrial engineer from the open University and MBA from Bar-Ilan University.
Rami Levy has serves as Canndoc’s chief of operation since July 2019. Mr. Levy has more then 20 years of lead management and operational experience at Netafim, the largest Israeli aggrotech company, expanding global operations development to more than 190 territories. Mr. Levy holds a BSc in in industrial engineers and MBA from Ben Gurion University.
Family Relationships
There are no family relationships between any of the directors or members of senior management named above.
We are not aware of any arrangements or understandings with major shareholders, customers, suppliers or others, pursuant to which any person referred to above was selected as a director or member of senior management.
| B. | Compensation. |
The following table provides a summary of compensation earned by or paid, directly or indirectly, to our five most highly compensated directors and executive officers on an individual basis for the year ended December 31, 2020:
| (NIS in thousands) | Non-Equity Incentive Plan Compensation | |||||||||||||||||||||||||||||||
| Name and Principal Position | Fiscal | Salary | Share
Based Awards | Option
Based Awards | Annual Incentive Plans | Long-Term Incentive Plans | All
Other Compensation (3) | Total
Compensation | ||||||||||||||||||||||||
Alexander Rabinovich Chief Executive Officer | 2020 | 120 | - | - | - | - | - | 120 | ||||||||||||||||||||||||
Amos Cohen Chief Financial Officer | 2020 | 389 | - | - | - | - | 122 | 511 | ||||||||||||||||||||||||
Ehud Barak Chairman of the Board | 2020 | 274 | - | 9,874 | - | - | - | 10,148 | ||||||||||||||||||||||||
Rami Levy Chief Operating Officer (Canndoc) | 2020 | 537 | - | 60 | 597 | |||||||||||||||||||||||||||
Moshe Gabrilov Chief Marketing Officer (Canndoc) | 2020 | 221 | - | 87 | 105 | 351 | ||||||||||||||||||||||||||
| (1) | These options were granted during March 2021 in accordance with the Company 2015 ESOP plan. |
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Stock Options and Other Compensation Securities
The following table provides a summary of all compensation securities earned by, granted to or issued to our five most highly compensated directors and executive officers on an individual basis for the year ended December 31, 2020.
| Option-based Awards | ||||||||||||||
| Name and Principal Position | Number of securities underlying unexercised options (#) | Option exercise price (NIS) | Option expiration date | Value
of unexercised in-the-money options (NIS) | ||||||||||
Alexander Rabinovich Chief Executive Officer | - | - | - | - | ||||||||||
Amos Cohen Chief Financial Officer | 134,708 | (1) | 18.38 | Four years from grant date | 214,000 | |||||||||
| Ehud Barak | 206,065 | 8.90 | March 31, 2023 | 3,567,000 | ||||||||||
| Chairman | 412,130 | 13.35 | 6,989,000 | |||||||||||
| 412,130 | 17.80 | 6,866,000 | ||||||||||||
Rami Levy Chief Operating Officer (Canndoc) | 186,569 | (1) | 18.38 | Four years from grant date | 299,600 | |||||||||
Moshe Gabrilov Chief Marketing Officer (Canndoc) | 134,708 | (1) | 18.38 | Four years from grant date | 214,000 | |||||||||
| (1) | These options were granted during March 2021in accordance with the Company 2015 ESOP plan. |
Compensation of Other Senior Management and Directors
The aggregate compensation paid by us to our other executive officers and directors (not listed above) for the year ended December 31, 2020, was approximately NIS 842 thousand, including approximately NIS 144 thousand set aside or accrued to provide pension, severance, retirement or similar benefits or expenses, but does not include business travel, relocation, professional and business association dues and expenses reimbursed to officers, and other benefits commonly reimbursed or paid by companies in Israel.
Employment Agreements
We have entered into written employment or services agreements with each of our executive officers. All of these agreements contain customary provisions regarding noncompetition, confidentiality of information and most of them contain also customary provisions regarding assignment of inventions. However, the enforceability of the noncompetition provisions may be limited under applicable law. In addition, we have entered into agreements with each executive officer and director pursuant to which we have agreed to indemnify each of them up to a certain amount and to the extent that these liabilities are not covered by directors and officers insurance. Members of our senior management may be eligible for bonuses in accordance with our compensation policy and as set forth by our board of directors.
Directors’ Service Contracts
We do not have written agreements with any director providing for benefits upon the termination of his or her engagement with our company.
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Oversight and Description of Compensation
Compensation of Directors
Under Companies Law, the compensation of external directors is set in the regulations thereto, and the compensation of directors of a public company requires the approval of the compensation committee, the subsequent approval of the board of directors and, unless exempted under regulations promulgated under Companies Law, the approval of the shareholders at a general meeting. If the compensation of directors is inconsistent with a company’s stated compensation policy, then, those provisions that must be included in the compensation policy according to Companies Law must have been considered by the compensation committee and board of directors, and shareholder approval will also be required, provided that:
| ● | At least a majority of the shares held by shareholders who are not controlling shareholders and do not have a personal interest in such matter, present and voting at such meeting, are voted in favor of the compensation package, excluding abstentions; or | |
| ● | The total number of shares of non-controlling shareholders and shareholders who do not have a personal interest in such matter voting against the compensation package does not exceed 2% of the aggregate voting rights in the company. |
Compensation of Executive Officers
Our Compensation Committee is responsible for, among other things, evaluating the performance of our executive officers, determining or making recommendations to the board with respect to the compensation of our executive officers, making recommendations to the board with respect to director compensation, incentive compensation plans and equity-based plans, making recommendations to the board with respect to the compensation policy for our employees and ensuring that we are in compliance with all legal requirements with respect to compensation disclosure. In performing its duties, the Compensation Committee has the authority to engage such advisors, including executive compensation consultants, as it considers necessary.
Philosophy and Objectives
The compensation program for senior management of the Company is designed to ensure that the level and form of compensation achieves certain objectives, including:
| a) | attracting and retaining talented and highly-qualified executives; |
| b) | motivating the short and long term performances of executives; and |
| c) | creating a corporate environment which aligns their interests with those of the shareholders. |
The compensation program is designed to provide competitive levels of compensation. We recognize the need to provide a total compensation package that will attract and retain qualified and experienced executives as well as align the compensation level of each executive to that executive’s level of responsibility. In general, the Company’s executive officers may receive compensation that is comprised of three components: (a) a base salary; (b)) equity participation through the Company’s Stock Option Plan or all such forms of compensation.
Base Salary
In our view, we pay base salaries which are competitive in the markets in which we operate. We believe that this is a first step to attracting and retaining talented, qualified and effective executives.
Equity Participation through Equity Incentive Plan
We have, as a part of our long-term incentive, adopted an Equity Incentive Plan. The purpose of the Equity Incentive Plan is to provide us with a share-related mechanism to attract, retain and motivate qualified directors, employees and consultants, to reward such of those non-employee directors, employees and consultants as may be granted securities under the Equity Incentive Plan by the Board from time to time for their contributions towards our long term goals and success and to enable and encourage such non-employee directors, employees and consultants to acquire our shares as long term investments and proprietary interests in Intercure.
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Pension Plan Benefits
Our executive officers are entitled to social benefits according to the Israeli law, which include a standard pension plan.
Israeli Corporate Law Matters Impacting Executive Compensation
Under Companies Law, the compensation of external directors is set in the regulations thereto, and the compensation of directors of a public company requires the approval of the compensation committee, the subsequent approval of the board of directors and, unless exempted under regulations promulgated under Companies Law, the approval of the shareholders at a general meeting. If the compensation of directors is inconsistent with a company’s stated compensation policy, then, those provisions that must be included in the compensation policy according to Companies Law must have been considered by the compensation committee and board of directors, and shareholder approval will also be required, provided that:
| ● | At least a majority of the shares held by shareholders who are not controlling shareholders and do not have a personal interest in such matter, present and voting at such meeting, are voted in favor of the compensation package, excluding abstentions; or | |
| ● | The total number of shares of non-controlling shareholders and shareholders who do not have a personal interest in such matter voting against the compensation package does not exceed 2% of the aggregate voting rights in the company. |
Companies Law also requires the approval of the compensation of a public company’s executive officers (other than the chief executive officer) in the following order: (i) the compensation committee, (ii) the company’s board of directors, and (iii) if such compensation arrangement is inconsistent with the company’s stated compensation policy, the company’s shareholders (by a special majority vote as discussed above with respect to the approval of director compensation). However, if the shareholders of the company do not approve a compensation arrangement with an executive officer that is inconsistent with the company’s stated compensation policy, the compensation committee and board of directors may override the shareholders’ decision if each of the compensation committee and the board of directors provide detailed reasons for their decision.
Under Companies Law, the compensation of a public company’s chief executive officer is required to be approved by: (i) the company’s compensation committee; (ii) the company’s board of directors, and (iii) the company’s shareholders (by a special majority vote as discussed above with respect to the approval of director compensation). However, if the shareholders of the company do not approve the compensation arrangement with the chief executive officer, the compensation committee and board of directors may override the shareholders’ decision if each of the compensation committee and the board of directors provide a detailed report for their decision. The approval of each of the compensation committee and the board of directors should be in accordance with the company’s stated compensation policy; however, in special circumstances, they may approve compensation terms of a chief executive officer that are inconsistent with such policy provided that they have considered those provisions that must be included in the compensation policy according to the Companies Law and that shareholder approval was obtained (by a special majority vote as discussed above with respect to the approval of director compensation). In addition, the compensation committee may waive the shareholder approval requirement with regards to the approval of the engagement terms of a candidate for the chief executive officer position, if they determine that the compensation arrangement is consistent with the company’s stated compensation policy, and that the chief executive officer did not have a prior business relationship with the company or a controlling shareholder of the company and that subjecting the approval of the engagement to a shareholder vote would impede the company’s ability to employ the chief executive officer candidate.
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| C. | Board Practices |
Foreign Private Issuer Status
The Nasdaq Rules include certain accommodations in the corporate governance requirements that allow foreign private issuers, such as us, to follow “home country” corporate governance practices in lieu of the otherwise applicable corporate governance standards of the Nasdaq. The application of such exceptions requires that we disclose any significant ways in which our corporate governance practices differ from the Nasdaq Rules that we do not follow. When our shares are listed on the Nasdaq, we intend to continue to follow Canadian corporate governance practices in lieu of the requirement under Rule 5620(c) of the Nasdaq Rules that a company’s articles of incorporation provide for a quorum for any meeting of the holders of the company’s ordinary shares that is not less than 33 1/3% of the outstanding ordinary shares of the company. Our articles of incorporation provide that a quorum of shareholders is constituted by the holders of at least 5% of the shares entitled to vote at the meeting, present in person or represented by proxy, and at least two persons entitled to vote at the meeting, present in person or represented by proxy. In addition, we do not intend to follow Rule 5635 of the Nasdaq Rules that requires that shareholder approval be required for the Company to issue securities in connection with certain events, such as the acquisition of shares or assets of another company, the establishment of or amendments to equity-based compensation plans for employees, rights issues at or below market price, certain private placements, directed issues at or above market price and issuance of convertible notes. Neither Israeli securities laws nor corporate law require shareholder approval for such transactions, except where such transactions constitute a “related party transaction” or “business combination” under Canadian securities laws or where such transaction is structured in a way that requires shareholder approval under the Companies Law, or where the TSXV requires the shareholder approval for the establishment of or amendments to equity-based compensation plans, in which case, we intend to applicable Israeli law requirements.
Corporate Governance
Except as stated above, we intend to comply with the rules generally applicable to U.S. domestic companies listed on the Nasdaq. We may in the future decide to use other foreign private issuer exemptions with respect to some of the other Nasdaq listing requirements. Following our home country governance practices, as opposed to the requirements that would otherwise apply to a company listed on the Nasdaq, may provide less protection than is accorded to investors under the Nasdaq Rules applicable to U.S. domestic issuers.
Intercure’s Canadian corporate governance disclosure obligations are set out in the Canadian Securities Administrators’ NI 52-110, National Instrument 58-101 – Disclosure of Corporate Governance Practices (“NI 58-101”) and National Policy 58-201 – Corporate Governance Guidelines. These instruments set out a series of guidelines and requirements for effective corporate governance (collectively, the “Guidelines”). The Guidelines address matters such as the constitution and independence of corporate boards, the functions to be performed by boards and their committees and the effectiveness and education of Board members. NI 58-101 requires the disclosure by each listed corporation of its approach to corporate governance with reference to the Guidelines. Such Guidelines will be applicable to Intercure provided that they do not contravene Companies Law.
The disclosure set out below includes disclosure required by NI 58-101 describing our approach to corporate governance in relation to the Corporate Governance Guidelines.
Board of Directors
The primary function of the Board is to supervise the management of the business and affairs of Intercure, including the responsibility for the strategic planning process, assessing the performance of and overseeing Intercure’s management, the issuance of securities, succession planning, ensuring effective and adequate communication with shareholders, other stakeholders and the public, oversight of Intercure’s internal control and management information systems, corporate governance, director compensation and assessment and approving material transactions and contracts. The Board will also be responsible for reviewing the succession plans for Intercure, including appointing, training and monitoring senior management to ensure that the Board and management have the appropriate skills and experience. The Board has appointed an Audit Committee, and expect to appoint a Compensation Committee and a Corporate Governance and Nominating Committee. See below under “Committees of the Board”. The Board has delegated to the applicable committee those duties and responsibilities set out in each committee’s charter.
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Director Independence
Under the Nasdaq Rules, independent directors must comprise a majority of a listed company’s board of directors within a specified period after listing. For purposes of the Nasdaq Rules, an independent director means a person other than an executive officer or employee of the company who, in the opinion of the board of directors, has no relationship with the company that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. Under NI 58-101, a director is considered to be independent if he or she is independent within the meaning of Section 1.4 of National Instrument 52-110—Audit Committees. Section 1.4 of NI 52-110 generally provides that a director is independent if he or she has no direct or indirect “material relationship” with the issuer which could, in the view of the issuer’s board of directors, be reasonably expected to interfere with the exercise of the director’s independent judgment. Notwithstanding the foregoing, the following are deemed as being in a material relationship: (a) an individual who is, or has been within the last three years, an employee or executive officer of the issuer; (b) an individual whose immediate family member is, or has been within the last three years, an executive officer of the issuer; (c) an individual who: (i) is a partner of a firm that is the issuer’s internal or external auditor, (ii) is an employee of that firm, or (iii) was within the last three years a partner or employee of that firm and personally worked on the issuer’s audit within that time; (d) an individual whose spouse, minor child or stepchild, or child or stepchild who shares a home with the individual: (i) is a partner of a firm that is the issuer’s internal or external auditor, (ii) is an employee of that firm and participates in its audit, assurance or tax compliance (but not tax planning) practice, or (iii) was within the last three years a partner or employee of that firm and personally worked on the issuer’s audit within that time; (e) an individual who, or whose immediate family member, is or has been within the last three years, an executive officer of an entity if any of the issuer’s current executive officers serves or served at that same time on the entity’s compensation committee; and (f) an individual who received, or whose immediate family member who is employed as an executive officer of the issuer received, more than $75,000 in direct compensation from the issuer during any 12 month period within the last three years.
Our board has undertaken a review of the independence of each director. Based on information provided by each director concerning his or her background, employment and affiliations, our board has determined that Gideon Hirshfeld, David Salton and Lennie Grinbaum, are “independent” as that term is defined under the Nasdaq Rules and NI 58-101. In making this determination, our board considered the current and prior relationships that each non-employee director has with our company and all other facts and circumstances our board deemed relevant in determining their independence, including the beneficial ownership of our shares by each non-employee director.
Certain members of our board are also members of the boards of other public companies. See “—Directors, Executive Officers and Significant Employees”. Our board has not adopted a director interlock policy, but is keeping informed of other public directorships held by its members.
Meetings of Independent Directors
The Board and committees will meet without management and non-independent directors at meetings of the Board, if considered necessary. These discussions will generally form part of the committee chairs’ reports to the Board. The Chair will chair the meetings and encourage open and candid discussions among the independent directors by providing them with an opportunity to express their views on key topics before decisions are taken.
Code of Conduct
The board has not adopted a formal written Code of Business Conduct and Ethics. However, the small size of the board and number of officers and employees allows the board to monitor on an ongoing basis the activities of management and to ensure that the highest standard of ethical conduct is maintained. The board views good corporate governance as an integral component to its success and to meet its responsibilities to shareholders. As the Company grows in size and scope, the board anticipates that it will formulate and implement a formal Code of Business Conduct and Ethics.
Monitoring Compliance with the Code of Conduct
Our nominating and corporate governance committee will be responsible for reviewing and evaluating the code of conduct at least annually and will recommend any necessary or appropriate changes to our board for consideration. The nominating and corporate governance committee will assist our board with the monitoring of compliance with the code of conduct, and will be responsible for considering any waivers therefrom (other than waivers applicable to members of the nominating and corporate governance committee, which shall be considered by the audit committee, or waivers applicable to our directors or executive officers, which shall be subject to review by our Board as a whole).
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Requirement for Directors and Officers to Disclose Interest in a Contract or Transaction
In accordance with the BCBCA, each director and officer must disclose the nature and extent of any interest that he or she has in a material contract or material transaction whether made or proposed with us, if the director or officer is a party to the contract or transaction, is a director or an officer or an individual acting in a similar capacity of a party to the contract or transaction, or has a material interest in a party to the contract or transaction. Subject to certain limited exceptions under the BCBCA, no director may vote on a resolution to approve a material contract or material transaction which is subject to such disclosure requirement.
As of the date hereof, except as otherwise disclosed in this registration statement, to the knowledge of the board or the management of the Company, there are no material interests, whether direct or indirect, of any informed person of the Company, any proposed director of the Company, or any associate or affiliate of any informed person or proposed director, in any transaction since the commencement of the Company’s most recently completed financial year or in any proposed transaction which has materially affected or would materially affect the Company of any of its subsidiaries.
Complaint Reporting
In order to foster a climate of openness and honesty in which any concern or complaint pertaining to a suspected violation of the law, our code of conduct or any of our policies, or any unethical or questionable act or behavior, our code of conduct will require that our employees promptly report the violation or suspected violation. In order to ensure that violations or suspected violations can be reported without fear of retaliation, harassment or an adverse employment consequence, we will adopt a whistleblowing policy which will contain procedures that are aimed to facilitate confidential, anonymous submissions of complaints by our directors, officers, employees and others.
Committees of the Board
We currently have an audit committee, a compensation committee and a corporate governance and nominating committee, with each committee having a written charter.
Audit Committee
Our Audit Committee is currently comprised of three (3) members, David Salton, Lennie Grinbaum and Gideon Hirschfeld. Our board has determined that each is financially literate and meets the independence requirements for directors, including the heightened independence standards for members of the audit committee under Rule 10A-3 under the Exchange Act and NI 52-110. Our board has determined that David Salton is “financially sophisticated” within the meaning of the Nasdaq Rules, “financially literate” within the meaning of NI 52-110, and a “financial expert” as defined by Rule 10A-3 under the Exchange Act. For a description of the education and experience of each member of the audit committee, see “—Directors, Executive Officers and Significant Employees”.
Israeli Law Matters Pertaining to Audit Committees
Under Companies Law, Intercure is required to appoint an Audit Committee. The Audit Committee must be comprised of at least three directors, including all of the external directors, one of whom must serve as chairman of the committee.
Under Companies Law, the Audit Committee may not include the chairman of the Board, a controlling shareholder of the company or a relative of a controlling shareholder, a director employed by or providing services on a regular basis to the company, to a controlling shareholder or to an entity controlled by a controlling shareholder or a director most of whose livelihood depends on a controlling shareholder.
In addition, under Companies Law, the Audit Committee must consist of a majority of unaffiliated directors. In general, an “unaffiliated director” under Companies Law is defined as either an external director or as a director who meets the following criteria:
● he or she meets the qualifications for being appointed as an external director, except for the requirement that the director be an Israeli resident (which does not apply to companies whose securities have been offered outside of Israel or are listed outside of Israel); and
● he or she has not served as a director of the company for a period exceeding nine consecutive years, provided that, for this purpose, a break of less than two years in service shall not be deemed to interrupt the continuation of the service.
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Companies Law further requires that generally, any person who does not qualify to be a member of the Audit Committee may not attend the Audit Committee’s meetings and voting sessions, unless such person was invited by the chairperson of the committee for the purpose of presenting on a specific subject; provided, however, that an employee of the company who is not the controlling shareholder or a relative of a controlling shareholder may attend the discussions of the committee, provided that any resolutions approved at such meeting are voted on without his or her presence. A company’s legal advisor and company secretary who are not the controlling shareholder or a relative of a controlling shareholder may attend the meeting and voting sessions, if required by the committee.
The quorum required for the convening of meetings of the Audit Committee and for adopting resolutions by the Audit Committee is a majority of the members of the Audit Committee, provided such majority is comprised of a majority of independent directors, at least one of whom is an external director.
Approval of transactions with related parties
Under Companies Law, the approval of the Audit Committee is required to effect specified actions and transactions with office holders and controlling shareholders and their relatives, or in which they have a personal interest. The Audit Committee may not approve an action or a transaction with a controlling shareholder or with an office holder unless at the time of approval the Audit Committee meets the composition requirements under Companies Law.
Audit Committee role
The Board has adopted an Audit Committee charter setting forth the responsibilities of the audit committee consistent with the rules of the SEC and the Nasdaq Marketplace Rules, which include, but are not limited to:
● Retaining and terminating our independent auditors, subject to the ratification of the Board, and in the case of retention, to that of the shareholders;
● Pre-approving of audit and non-audit services and related fees and terms, to be provided by the independent auditors;
● Overseeing accounting and financial reporting processes and audits of financial statements, the effectiveness of internal control over financial reporting and making such reports as may be required of an audit committee under the rules and regulations promulgated under the Exchange Act;
● Reviewing with management and our independent auditor our annual and quarterly financial statements prior to publication or filing (or submission, as the case may be) to the SEC;
● Recommending to the Board the retention and termination of the internal auditor, and the internal auditor’s engagement fees and terms, in accordance with Companies Law as well as approving the yearly or periodic work plan proposed by the internal auditor;
● Reviewing with the general counsel and external counsel, as deem necessary, legal and regulatory matters that could have a material impact on the financial statements;
● Identifying irregularities in our business administration, inter alia, by consulting with the internal auditor or with the independent auditor, and suggesting corrective measures to the Board; and
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● Reviewing policies and procedures with respect to transactions (other than transactions related to the compensation or terms of services) between Intercure and its officers and directors, or affiliates of such officers or directors, or transactions that are not in the ordinary course of business and deciding whether to approve such acts and transactions if so required under Companies Law.
Under Companies Law, the Audit Committee is responsible for:
● Determining whether there are deficiencies or irregularities in the business management practices of the company, including in consultation with the internal auditor or the independent auditor, and making recommendations to the board of directors to improve such practices;
● Determining the approval process for transactions with a controlling shareholder or in which a controlling shareholder has a personal interest;
● Determining whether to approve certain related party transactions (including transactions in which an office holder has a personal interest and whether such transaction is extraordinary or material under Companies Law);
● Where the board of directors approves the working plan of the internal auditor, to examine such working plan before its submission to the board of directors and proposing amendments thereto;
● Examining our internal controls and internal auditor’s performance, including whether the internal auditor has sufficient resources and tools to dispose of its responsibilities;
● Examining the scope of our auditor’s work and compensation and submitting a recommendation with respect thereto to the board of directors or shareholders, depending on which of them is considering the appointment of our auditor; and
● Establishing procedures for the handling of employees’ complaints as to the management of the business and the protection to be provided to such employees.
Audit Committee Charter
The Board has adopted a written charter for the Audit Committee (the “Charter of the Audit Committee”), which sets out the Audit Committee’s responsibility in reviewing and approving the financial statements of Intercure and public disclosure documents containing financial information and reporting on such review to the Board, ensuring that adequate procedures are in place for the reviewing of Intercure’s public disclosure documents that contain financial information, overseeing the work and reviewing the independence of the external auditors. The Charter of the Audit Committee complies with both the above Israeli legal requirements and Canadian legal requirements.
Compensation Committee
The Compensation Committee consists of three (3) members, David Salton, Lennie Grinbaum and Gideon Hirschfeld and assists the Board in determining compensation for Intercure’s directors and officers. The Board has determined that each member of our compensation committee is independent under the Nasdaq Marketplace Rules (and as defined in NI 58-101), including the additional independence requirements applicable to the members of a compensation committee.
Israeli Law Matters Pertaining to Compensation Committees
Under Companies Law, the board of directors of a public company must appoint a compensation committee. The duties of the compensation committee include the recommendation to the company’s board of directors of a policy regarding the terms of engagement of office holders, to which we refer as a compensation policy and which we are required to adopt under Companies Law. That policy must be adopted by the company’s board of directors, after considering the recommendations of the compensation committee, and will need to be brought for approval by the company’s shareholders, which approval, or a Special Approval for Compensation, requires that either:
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● At least a majority of the shares held by shareholders who are not controlling shareholders and do not have a personal interest in such matter and who are present and voting (excluding abstentions) are voted in favor; or
● The total number of shares of non-controlling shareholders and shareholders who do not have a personal interest in the matter and who vote against, does not exceed 2% of the company’s aggregate voting rights The compensation committee must be comprised of at least three directors, including all of the external directors, who must constitute a majority of the members of the compensation committee, and one of the external directors must serve as chairman of the committee. Each compensation committee member that is not an external director must be a director whose compensation does not exceed an amount that may be paid to an external director. The compensation committee is subject to the same Companies Law restrictions as the audit committee as to who may not be a member of the committee.
In accordance with Companies Law, the roles of the compensation committee include, but are not limited to, the following:
● Recommending to the board of directors with respect to the approval of the compensation policy for office holders and, once every three years regarding any extensions to a compensation policy that was adopted for a longer period of time;
● Reviewing the implementation of the compensation policy and periodically recommending to the board of directors with respect to any amendments or updates of the compensation plan;
● Resolving whether or not to approve arrangements with respect to the terms of office and employment of office holders; and
● Exempting, under certain circumstances, a transaction with a candidate to the position of chief executive officer from the approval of the general meeting of our shareholders.
The Board has adopted a compensation committee charter setting forth the responsibilities of the committee consistent with the Nasdaq Marketplace Rules.
In general, under Companies Law, a public company must have a compensation policy approved by the board of directors after receiving and considering the recommendations of the compensation committee. In addition, the compensation policy must be approved at least once every three years, first, by the Board, upon recommendation of the Compensation Committee, and second, by a majority of the Intercure Shares present, in person or by proxy, and voted at a shareholders meeting, provided that either:
● Such majority includes at least a majority of the shares held by shareholders who are not controlling shareholders and do not have a personal interest in such compensation arrangement and who are present and voting (excluding abstentions); or
● The total number of shares of non-controlling shareholders and shareholders who do not have a personal interest in the compensation arrangement and who vote against the arrangement, does not exceed 2% of the company’s aggregate voting rights.
Pursuant to Companies Law, under special circumstances, the board of directors may approve the compensation policy despite the objection of the shareholders on the condition that the compensation committee and then the board of directors decide, on the basis of detailed arguments and after discussing again the compensation policy, that approval of the compensation policy, despite the objection of the meeting of shareholders, is for the benefit of the company.
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The compensation policy must serve as the basis for decisions concerning the financial terms of employment or engagement of office holders, including exculpation, insurance, indemnification or any monetary payment or obligation of payment in respect of employment or engagement. The compensation policy must relate to certain factors, including advancement of the company’s objectives, business plan and long-term strategy, and creation of appropriate incentives for office holders. It must also consider, among other things, the company’s risk management, size and the nature of its operations. The compensation policy must furthermore consider the following additional factors:
● The education, skills, experience, expertise and accomplishments of the relevant office holder;
● The office holder’s position, responsibilities and prior compensation agreements with him or her;
● The ratio between the cost of the terms of employment of an office holder and the cost of the employment of other employees of the company, including employees employed through contractors who provide services to the company, in particular the ratio between such cost, the average and median salary of the employees of the company, as well as the impact of such disparities on the work relationships in the company;
● If the terms of employment include variable components—the possibility of reducing variable components at the discretion of the board of directors and the possibility of setting a limit on the value of non-cash variable equity-based components; and
● If the terms of employment include retirement grants—the term of employment or office of the office holder, the terms of his or her compensation during such period, the company’s performance during the such period, his or her individual contribution to the achievement of the company goals and the maximization of its profits and the circumstances under which he or she is leaving the company.
The compensation policy must also include, among other required provisions:
● With regards to variable components:
● With the exception of office holders who report directly to the chief executive officer, determining the variable components on long-term performance basis and on measurable criteria; however, the company may determine that an immaterial part of the variable components of the compensation package of an office holder’s shall be awarded based on non-measurable criteria, if such amount is not higher than three monthly salaries per annum, while taking into account such office holder contribution to the company; and
● The ratio between variable and fixed components, as well as the limit of the values of variable components at the time of their grant.
● A condition under which the office holder will return to the company, according to conditions to be set forth in the compensation policy, any amounts paid as part of his or her terms of employment, if such amounts were paid based on information later to be discovered to be wrong, and such information was restated in the company’s financial statements;
● The minimum holding or vesting period of variable equity-based components to be set in the terms of office or employment, as applicable, while taking into consideration long-term incentives; and
● A limit to retirement grants.
Intercure’s compensation policy is designed to promote retention and motivation of directors and executive officers, incentivize superior individual excellence, align the interests of its directors and executive officers with long-term performance and provide a risk management tool. To that end, a portion of an executive officer compensation package is targeted to reflect short and long-term goals, as well as the executive officer’s individual performance. On the other hand, Intercure’s compensation policy includes measures designed to reduce the executive officer’s incentives to take excessive risks that may harm us in the long-term, such as limits on the value of cash bonuses and equity-based compensation, limitations on the ratio between the variable and the total compensation of an executive officer and minimum vesting periods for equity-based compensation.
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Corporate Governance and Nominating Committee
It is expected that a Corporate Governance and Nominating Committee will be formed and will be comprised of directors that are considered to be “independent” as defined in NI 58-101. A charter for the Corporate Governance and Nominating Committee will be adopted.
Certain Israeli Corporate Compliance Matters
Internal Auditor
Under Companies Law, the board of directors of a public company must appoint an internal auditor based on the recommendation of the Audit Committee. The role of the internal auditor is, among other things, to examine whether a company’s actions comply with applicable law and orderly business procedure. Under Companies Law, the internal auditor cannot be an interested party or an office holder or a relative of an interested party or an office holder, nor may the internal auditor be the company’s independent auditor or its representative. An “interested party” is defined in Companies Law as: (i) a holder of 5% or more of the issued share capital or voting power in a company, (ii) any person or entity who has the right to designate one or more directors or to designate the chief executive officer of the company, or (iii) any person who serves as a director or chief executive officer of the company. As of the date of this registration statement, Intercure’s internal auditor is Mr. Yisrael Gewitz.
Fiduciary Duty Matters
Companies Law imposes a duty of care and a duty of loyalty on all office holders of a company. The duty of care of an office holder is based on the duty of care set forth in connection with the tort of negligence under the Israeli Torts Ordinance (New Version), 5728-1968. The duty of care requires an office holder to act with the degree of proficiency with which a reasonable office holder in the same position would have acted under the same circumstances. The duty of care includes, but is not limited to, a duty to use reasonable means, in light of the circumstances, to obtain:
● Information on the advisability of a given action brought for his or her approval or performed by virtue of his or her position; and
● All other important information pertaining to these actions.
The duty of loyalty requires an office holder to act in good faith and for the benefit of the company, and includes, but is not limited to, the duty to:
● Refrain from any act involving a conflict of interest between the performance of his or her duties in the company and his or her other duties or personal affairs;
● Refrain from any activity that is competitive with the business of the company;
● Refrain from exploiting any business opportunity of the company for the purpose of gaining a personal benefit for himself or herself or for others; and
● Disclose to the company any information or documents relating to the company’s affairs which the office holder received as a result of his or her position as an office holder.
Intercure may approve an act specified above that would otherwise constitute a breach of the duty of loyalty of an office holder, provided, that the office holder acted in good faith, the act or its approval does not harm the company, and the office holder discloses his or her personal interest, including any related material information or document, a sufficient time before the approval of such act. Any such approval is subject to the terms of Companies Law, setting forth, among other things, the methods of obtaining such approval.
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Disclosure Matters
Disclosure of personal interests of an office holder and approval of acts and transactions Companies Law requires that an office holder promptly disclose to the company any personal interest that he or she may have and all related material information or documents relating to any existing or proposed transaction with the company. An interested office holder’s disclosure must be made promptly and in any event no later than the first meeting of the board of directors at which the transaction is considered. An office holder is not obliged to make such disclosure if the personal interest of the office holder derives solely from the personal interest of his or her relative in a transaction that is not considered as an extraordinary transaction.
Under Companies Law, once an office holder has complied with the above disclosure requirements, a company may approve, in a manner stipulated in the Companies Law and subject to the conditions therein, a transaction between the company and the office holder or a third party in which the office holder has a personal interest, or approve an action by the office holder that would otherwise be deemed a breach of the duty of loyalty, however, a company may not approve a transaction or action that is not performed by the office holder in good faith or is not in the company’s interest.
Under Companies Law, unless the articles of association of a company provide otherwise, a transaction with an office holder or a transaction with a third party in which the office holder has a personal interest and an action of an office holder that would otherwise be deemed a breach of the duty of loyalty, which is not an extraordinary transaction, requires approval of the board of directors. The Intercure Articles do not provide otherwise.
Under Companies Law, an extraordinary transaction in which an office holder has a personal interest requires approval first by the company’s audit committee and subsequently by the board of directors. The compensation of, or an undertaking to indemnify or insure, an office holder who is not a director requires approval first by the company’s compensation committee, then by the company’s board of directors, and, if such compensation arrangement or an undertaking to indemnify or insure is inconsistent with the company’s stated compensation policy or if the office holder is the chief executive officer (apart from a number of exceptions), then such arrangement is subject to a “Special Approval for Compensation”. Arrangements regarding the compensation, indemnification or insurance of a director or the chief executive officer of the company, require the approval of the compensation committee, board of directors and, subject to certain exceptions, shareholders by an ordinary majority, in that order, and in the case of the chief executive officer or under certain circumstances, a “Special Approval for Compensation”.
An office holder who has a personal interest in a matter that is considered at a meeting of the board of directors or the audit committee may generally not be present at the meeting or vote on the matter unless a majority of the directors or members of the audit committee have a personal interest in the matter, or unless the chairman of the audit committee or board of directors (as applicable) determines that he or she should be present to present but not vote on the transaction that is subject to approval. If a majority of the directors have a personal interest in the matter, such matter also requires approval of the shareholders of the company.
Under Companies Law, the definition of a “personal interest” includes the personal interest of a person in an action or a transaction of a company, including the personal interest of such person’s relative or the interest of any corporation in which the person or such person’s relative is a director or chief executive officer, a 5% or more shareholder or holds 5% or more of the voting rights, or has the right to appoint at least one director or the chief executive officer, but excluding a personal interest stemming solely from the fact of holding shares in the company. A personal interest also includes (1) a personal interest of a person who votes according to a proxy of another person, including in the event that the other person has no personal interest, and (2) a personal interest of a person who gave the proxy to another person to vote on his or her behalf, regardless of whether the proxy holder has discretion how to vote on the matter.
Under Companies Law, an “extraordinary transaction” is defined as any of the following:
● A transaction other than in the ordinary course of business;
● A transaction that is not on market terms; or
● A transaction that may have a material impact on the company’s profitability, assets or liabilities.
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Disclosure of personal interests of a controlling shareholder and approval of transactions
Under Companies Law, the disclosure requirements that apply to an office holder also apply to a controlling shareholder of a public company. Unless exempted under Companies Law, extraordinary transactions with a controlling shareholder or in which a controlling shareholder has a personal interest, which includes transactions for the provision of services by a controlling shareholder or his or her relative, whether directly or indirectly, including through a company controlled by such controlling shareholder, and if such controlling shareholder or relative thereof is an office holder in the company, any transactions regarding his or her terms of office, require the approval of the audit committee, the board of directors and a majority of the shares voted by the shareholders of the company participating and voting on the matter in a shareholders’ meeting. In addition, the shareholder approval must fulfill one of the following requirements, which we refer to as a Special Majority:
● At least a majority of the shares held by shareholders who do not have a personal interest in the transaction are voted in favor of approving the transaction, excluding abstentions; or
● The shares voted by shareholders who do not have a personal interest in the transaction who vote against the transaction represent no more than 2% of the voting rights in the company.
In addition, an extraordinary transaction with a controlling shareholder or in which a controlling shareholder has a personal interest, and an engagement of the company, directly or indirectly, with a controlling shareholder or a controlling shareholder’s relative (including through a corporation controlled by a controlling shareholder), regarding the company’s receipt of services from the controlling shareholder, and if such controlling shareholder is also an office holder or employee of the company, regarding his or her terms of employment, in each case with a term of more than three years requires the abovementioned approval every three years, however, transactions not involving the receipt of services or compensation can be approved for a longer term, provided that the audit committee determines that such longer term is reasonable under the circumstances. In addition, transactions with a controlling shareholder or a controlling shareholder’s relative who serves as an officer in a company, directly or indirectly (including through a corporation under his control), involving the receipt of services by a company or their compensation can have a term of five years from the company’s initial public offering under certain circumstances.
Arrangements regarding the compensation, indemnification or insurance of a controlling shareholder in his or her capacity as an office holder require the approval of the compensation committee, board of directors and shareholders by a Special Majority and the terms thereof may not be inconsistent with the company’s stated compensation policy.
Pursuant to regulations promulgated under Companies Law, certain transactions and arrangements with a controlling shareholder or his or her relative, or with directors or office holders, which would otherwise require approval of a company’s shareholders, may be exempt from shareholder approval under certain conditions.
Companies Law requires that every shareholder that participates, in person, by proxy or by voting instrument, in a vote regarding a transaction with a controlling shareholder, must indicate in advance or in the ballot whether or not that shareholder has a personal interest in the vote in question. Failure to so indicate will result in the invalidation of that shareholder’s vote.
Duties of shareholders
Under Companies Law, a shareholder has a duty to refrain from abusing its power in the company and to act in good faith and in an acceptable manner in exercising its rights and performing its obligations to the company and other shareholders, including, among other things, when voting at general meetings of shareholders on the following matters:
● An amendment to the articles of association;
● An increase in the company’s authorized share capital;
● A merger; and
● The approval of related party transactions and acts of office holders that require shareholder approval.
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A shareholder also has a general duty to refrain from discriminating against other shareholders.
The remedies generally available upon a breach of contract will also apply to a breach of the above mentioned shareholder duties, and in the event of discrimination against other shareholders, additional remedies are available to the injured shareholder.
In addition, any controlling shareholder, any shareholder that knows that its vote can determine the outcome of a shareholder vote and any shareholder that, under a company’s articles of association, has the power to appoint or prevent the appointment of an office holder, or any other power with respect to the company, has a duty to act with fairness towards the company. Companies Law does not describe the substance of this duty, except to state that the remedies generally available upon a breach of contract will also apply in the event of a breach of the duty to act with fairness, taking the shareholder’s position in the company into account.
Approval of private placements
Under Companies Law and the regulations promulgated thereunder, a private placement that involves a controlling shareholder, a material private placement, an extra-ordinary private placement, or TASE registration of securities does not require approval at a general meeting of the shareholders of a company; provided however, that in special circumstances, such as a private placement completed intended to obviate the need to control a special tender offer, or a private placement which qualifies as a related party transaction, approval at a general meeting of the shareholders of a company is required.
Exculpation, Insurance and Indemnification of Office Holders
Under Companies Law, a company may not exculpate an office holder from liability for a breach of the duty of loyalty. A company may exculpate an office holder in advance from liability to the company, in whole or in part, for damages caused to the company as a result of a breach of the duty of care but only if a provision authorizing such exculpation is included in its articles of association. The Intercure Articles include such a provision. An Israeli company may not exculpate a director from liability arising out of a breach of the duty of care with respect to a dividend or distribution to shareholders.
Under Companies Law and Israeli securities law, a company may indemnify an office holder in respect of the following liabilities, payments and expenses incurred for acts performed as an office holder, either pursuant to an undertaking made in advance of an event or following an event, provided a provision authorizing such indemnification is contained in its articles of association:
● A monetary liability incurred by or imposed on him or her in favor of another person pursuant to a judgment, including a settlement or arbitrator’s award approved by a court. However, if an undertaking to indemnify an office holder with respect to such liability is provided in advance, then such undertaking must be limited to certain events which, in the opinion of the board of directors, can be foreseen based on the company’s activities when the undertaking to indemnify is given, and to an amount or according to criteria determined by the board of directors as reasonable under the circumstances, and such undertaking shall detail the foreseen events and amount or criteria;
● Reasonable litigation expenses, including reasonable attorneys’ fees, incurred by the office holder as (1) a result of an investigation or proceeding instituted against him or her by an authority authorized to conduct such investigation or proceeding, provided that (i) no indictment was filed against such office holder as a result of such investigation or proceeding; and (ii) no financial liability was imposed upon him or her as a substitute for the criminal proceeding as a result of such investigation or proceeding or, if such financial liability was imposed, it was imposed with respect to an offense that does not require proof of criminal intent; or (2) in connection with a monetary sanction;
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● A monetary liability imposed on him or her in favor of an injured party at an Administrative Procedure (as defined below) in certain circumstances;
● Expenses incurred by an office holder in connection with an Administrative Procedure under the Israeli securities law, including reasonable litigation expenses and reasonable attorneys’ fees; and
● Reasonable litigation expenses, including attorneys’ fees, incurred by the office holder or imposed by a court in proceedings instituted against him or her by the company, on its behalf or by a third party or in connection with criminal proceedings in which the office holder was acquitted or as a result of a conviction for an offense that does not require proof of criminal intent.
An “Administrative Procedure” is defined as a procedure pursuant to chapters H3 (Monetary Sanction by the Israeli Securities Authority), H4 (Administrative Enforcement Procedures of the Administrative Enforcement Committee) or I1 (Arrangement to prevent Procedures or Interruption of procedures subject to conditions) to Israeli securities law. Under Companies Law and Israeli securities law, a company may insure an office holder against the following liabilities incurred for acts performed by him or her as an office holder if and to the extent provided in the company’s articles of association:
● A breach of the duty of care to the company or to a third party, to the extent such a breach arises out of the negligent conduct of the office holder;
● A breach of the duty of loyalty to the company, provided that the office holder acted in good faith and had a reasonable basis to believe that the act would not harm the company;
● A monetary liability imposed on the office holder in favor of a third party;
● A monetary liability imposed on the office holder in favor of an injured party at an Administrative Procedure pursuant certain Israeli securities law; and
● Expenses incurred by an office holder in connection with an Administrative Procedure, including reasonable litigation expenses and reasonable attorneys’ fees.
Under Companies Law, a company may not indemnify, exculpate or insure an office holder against any of the following:
● A breach of the duty of loyalty, except for indemnification and insurance for a breach of the duty of loyalty to the company to the extent that the office holder acted in good faith and had a reasonable basis to believe that the act would not harm the company;
● A breach of the duty of care committed intentionally or recklessly, excluding a breach arising out of the negligent conduct of the office holder;
● An act or omission committed with intent to derive illegal personal benefit; or
● A fine or forfeit levied against the office holder.
Under Companies Law, exculpation, indemnification and insurance of office holders must be approved by the compensation committee and the board of directors and, with respect to certain office holders or under certain circumstances, also by the shareholders.
The Intercure Articles permit Intercure to exculpate, indemnify and insure our office holders as permitted under Companies Law. Intercure’s office holders are currently covered by a directors and officers’ liability insurance policy. Intercure has entered into agreements with each of its directors and executive officers exculpating them, to the fullest extent permitted by law, from liability to us for damages caused to us as a result of a breach of the duty of care, and undertaking to indemnify them to the fullest extent permitted by law. The maximum amount set forth in such agreements is (1) with respect to indemnification in connection with a public offering of our securities, the gross proceeds raised by us and any selling shareholder in such public offering, and (2) with respect to all other permitted indemnification, the lower of (i) an amount equal to 25% of Intercure’s equity on a consolidated basis, based on our most recent financial statements made publicly available before the date on which the indemnity payment is made and (ii) $20 million.
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| D. | Employees. |
Our employees are classified as either production workers or administrative workers. As of December 31, 2020 we employ 21 production workers and 19 administrative employees. During the 2019 peak months of harvesting, we employed a total of 53 production workers. During 2018, we employed an average of 18 production workers in any given month.
We pay substantial attention to the ongoing training of our employees, which we believe plays a significant role in strengthening the leadership and efficiency of our company. Our training focuses on strengthening technical knowledge, building efficiency and improve other aspects of professional development. Our training programs also support the various certifications that we are required to maintain, such as IMC-GAP and IMC-GSP.
| E. | Share Ownership. |
The following table sets forth information regarding beneficial ownership of our ordinary shares as of May 31, 2021, by:
| ● | each of our directors and executive officers; | |
| all of our directors and executive officers as a group; | ||
| ● | each person, or group of affiliated persons, known to us to be the beneficial owner of more than 5% of our outstanding ordinary shares. |
The beneficial ownership of our ordinary shares is determined in accordance with the rules of the SEC and generally includes any shares over which a person exercises sole or shared voting or investment power, or the right to receive the economic benefit of ownership. For purposes of the table below, we deem ordinary shares issuable pursuant to options and warrants that are currently exercisable or exercisable within 60 days of May 31, 2021 to be outstanding and to be beneficially owned by the person holding the options for the purposes of computing the percentage ownership of that person, but we do not treat them as outstanding for the purpose of computing the percentage ownership of any other person.
The percentage of shares beneficially owned has been computed on the basis of 42,735,052 ordinary shares outstanding as of May 31, 2021.
As mentioned above, on April 8, 2021 we effectuated a 1-for-4.44926 capital consolidation of our outstanding ordinary shares, pursuant to which the number of our outstanding ordinary shares was decreased to 27,021,100. We have adjusted all outstanding options, warrants and other rights entitling their holders to purchase ordinary shares, as required by the terms of these securities. In particular, we have reduced the conversion ratio used in the Share Consolidation, and increased the exercise price in accordance with the terms of each security based on the same ratio. The reverse stock split did not otherwise affect any of the rights currently accruing to holders of our ordinary shares, or options or warrants exercisable for our ordinary shares. All share and related option and warrant information presented in this registration statement have been retroactively adjusted to reflect the reduced number of shares outstanding and the increase in share price that resulted from the Share Consolidation.
Unless otherwise noted below, the address of each shareholder, director and executive officer 85 Medinat ha-Yehudim Street Herzliya, 4676670, Israel.
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Except as indicated in footnotes to this table, we believe that the shareholders named in this table have sole voting and investment power with respect to all shares shown to be beneficially owned by them, based on information provided to us by such shareholders. The shareholders listed below do not have any different voting rights from any of our other shareholders.
| No.
of Shares Beneficially Owned,1 | Percentage Beneficially | |||||||
| More than 5% shareholders 2 | ||||||||
| Yael Fegal | 4,508,786 | 10.51 | ||||||
| Directors and executive officers: | ||||||||
| Alexander Rabinovich 3,4 | 12,348,595 | 27.02 | ||||||
| Ehud Barak | 896,766 | 2.06 | ||||||
| David Salton | 2,023 | * | ||||||
| Lennie Grinbaum | 8,766 | * | ||||||
| Gideon Hirschfeld | 2,023 | * | ||||||
| Alon Granot | — | — | ||||||
| Amos Cohen | 25,258 | * | ||||||
| Michael Auerbach | — | — | ||||||
| Rami Levy | 35,361 | * | ||||||
| Moshe Gavrielov | 25,258 | * | ||||||
| All directors and executive officers as a group (10 persons) | 13,344,050 | 28.58 | ||||||
| * | Indicates beneficial ownership of less than 1% of the total ordinary shares outstanding |
(1) Includes options to purchase ordinary shares granted which are vested or will vest within 60 days of May 31, 2021 as follows:
| Shareholder, director or executive officer | No.
of Shares Underlying Options | |||
| Yael Fegal | 171,423 | |||
| Alexander Rabinovich | 2,973,755 | |||
| Ehud Barak | 896,766 | |||
| David Salton | 2,023 | |||
| Lennie Grinbaum | 2,023 | |||
| Gideon Hirschfeld | 2,023 | |||
| Amos Cohen | 25,258 | |||
| Rami Levy | 35,361 | |||
| Moshe Gavrielov | 25,258 | |||
(2) In connection with the SPAC Transaction, Subversive Real Estate Sponsor LLC, the sponsor of Subversive LP (the “Sponsor”), received 3,871,695 of our ordinary shares. Pursuant to a lock-up and forfeiture agreement, the Sponsor is restricted from selling these shares for a period of 6 months following the closing date of the SPAC Transaction. In addition, 3,209,916 of these shares must be forfeited to us if our ordinary shares do not obtain a target weighted average price per share of $13.00 (subject to appropriate adjustments) for any five (5) consecutive trading days during the thirty (30) trading days after the shares begin trading on Nasdaq. In addition, pursuant to the authority granted in our amended and restated articles of association, our board of directors has decided that 1,739,216 of the ordinary shares held by the Sponsor be deemed to be Dormant Shares (as described below) due to the fact that the aggregate number of our ordinary shares held by the Sponsor exceed the Applicable Limit. As a result of the foregoing, due to the fact that such shares have been declared Dormant Shares and that such shares are subject to a lock-up and right of forfeiture, as of May 31, 2021 the Sponsor does not beneficially own five percent (5%) or more of our ordinary shares.
(3) Mr. Rabinovich is entitled to 224,756 options to purchase 224,756 ordinary shares of the Company (the “Options”) conditional upon (a) a direct or indirect sale by Intercure to a third party outside Israel of all or substantially all of Intercure’s cannabis business at the time of sale directly; (b) a direct or indirect initial public offering on any non-Israeli stock exchange, of all or substantially all of Intercure’s cannabis business at the time of the offering; or (c) a direct or indirect merger of all or substantially all of Intercure’s cannabis business at the time of the merger with an entity whose securities are listed on a foreign stock exchange. The Options will expire in September 2021 and have an exercise price of 1.69 NIS per Intercure Share. On April 27, 2021, the Company issued to Mr. Alexander Rabinovich the Options following the General Assembly approval from August 2019 as part of Canndoc acquisition transaction and as approved by the Company’s general assembly on April 1, 2021 as part of the SPAC Transaction.
(4) By himself and via companies fully owned by him.
Equity Incentive Plan
The Equity Incentive Plan was originally adopted by the Board in March 2015 and is scheduled to expire in March 2025. The Equity Incentive Plan provides for the grant of options to Intercure’s directors, officers, employees, nonemployee service providers and controlling shareholders (as defined the Israeli Income Tax Ordinance [New Version], 5721-1961). As of December 31, 2020, options to purchase 5,338,184 shares were outstanding and up to 57,889,128 shares are available for issuance. Of such outstanding options, options to purchase 3,902,202 shares were vested as of December 31, 2020, with a weighted average exercise price of 3.891 NIS per share, and each will expire ten years from the date of grant.
In addition to that, on February 2021 the issued 967,208 options to purchase shares to certain employees of the Company which will expire in four years from the date of issuance with an exercise price of NIS 18.37 per share.
The Equity Incentive Plan provides for options to be granted at the determination of the Board (which is entitled to delegate its powers under the Equity Incentive Plan to the Compensation Committee), in each case, subject to applicable laws. Upon termination of employment without cause (as defined in the Equity Incentive Plan), in the event of death, retirement or disability, all unvested options will expire and all vested options at the time of termination will generally be exercisable for three months (which may be extended to up to 12 months in the governing option agreement) following such termination, subject to the terms of the Equity Incentive Plan and the governing option agreement. If we terminate an optionee’s employment or engagement for cause (as defined in the Equity Incentive Plan) the optionee’s right to exercise all vested and unvested the options granted to him or her will expire immediately.
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In the event that options allocated under the Equity Incentive Plan expire or otherwise terminate, such expired or terminated options can become available following Board approval under the Equity Incentive Plan.
Section 102 of the Israeli Tax Ordinance allows Intercure’s employees, directors and officers who are not controlling shareholders (as such term is defined in the Israeli Tax Ordinance) and are considered Israeli residents to receive favorable tax treatment for compensation in the form of shares or options. Intercure’s non-employee service providers and controlling shareholders may only be granted options under another section of the Israeli Tax Ordinance, which does not provide for similar tax benefits. Section 102 of the Israeli Tax Ordinance includes two alternatives for tax treatment involving the issuance of options or shares to a trustee for the benefit of the grantees and also includes an additional alternative for the issuance of options or shares directly to the grantee. The most favorable tax treatment for the grantees is under Section 102(b)(2) of the Israeli Tax Ordinance, the issuance to a trustee under the “capital gains track.” The Board selected the “capital gains track” for grants to Israeli employees under the Equity Incentive Plan. Under this track, we are not allowed to deduct an expense with respect to the issuance of the options or shares.
| ITEM 7. | MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS |
| A. | Major Shareholders. |
Except as set forth in “Item 6. Directors, Senior Management and Employees—E. Share Ownership,” to the best of our knowledge, no other person who we know beneficially owns 5% or more of our ordinary shares outstanding as of May 31, 2021. None of our shareholders has different voting rights from other shareholders. Other than as described herein, to the best of our knowledge, we are not owned or controlled, directly or indirectly, by another corporation, by any foreign government or by any natural person or legal persons, severally or jointly, and we are not aware of any arrangement that may, at a subsequent date, result in a change of control of our company.
Changes in Percentage Ownership by Major Shareholders
During the past three years, there have been no significant percentage ownership changes in the ownership of our ordinary shares by any major shareholder.
Record Holders
Based upon a review of the information provided to us by our transfer agent, as of May 6, 2021, there were a total of 4,030 holders of record of our shares, of which approximately 46.28% are located in Israel.
| B. | Related Party Transactions. |
The following is a description of material transactions, or series of related material transactions since January 1, 2018, pursuant to which we are a party and in which the other parties include our directors, executive officers, holders of more than 5% of our voting securities, or any member of the immediate family of any of the foregoing persons.
Line of Credit
On December 23, 2015, Intercure entered into an agreement with Mr. Alexander Rabinovich, its controlling shareholder director and CEO, pursuant to which Mr. Rabinovich undertook to provide, independently or through a company under his control, a total amount of $1.25 million, as a loan or guarantee (the “Line of Credit”).
Intercure will be obligated to repay the Line of Credit on a date which will be agreed upon between the parties. The foregoing Line Of Credit was entered into under eligible transaction conditions - i.e., the amount of the loan / guarantee will not accrue interest.
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Canndoc
On June 24, 2018, Intercure reported an agreement for the acquisition of Canndoc. The acquisition was partially financed by a loan provided by Mr. Alexander Rabinovich, its controlling shareholder, director and CEO. The loan amount was 9 million NIS (the “Canndoc Loan”).
The cash component of the Loan bears annual interest that is calculated annually, at a rate equal to the minimum interest rate prescribed in section 3J of the Income Tax Ordinance (2.61% in 2018). The Canndoc Loan principal, plus interest, will be paid within one year after the date when the loan was made.
The Line of Credit and the Canndoc Loan maturity dates were extend several times as approved by the Audit Committee and Board, with the last extension extending both to October 2020. In October 2020, both the Line of Credit and the Canndoc Loan were fully repaid, in the amount of approximately 13.8 million NIS.
Loans from related party
Following Canndoc’s acquisition and the appointment of Mr. Avner Barak as a director of Intercure, a previous loan from Mr. Avner Barak to Canndoc in the amount of 0.72 million NIS was assumed by Intercure. The loan principal bears annual interest, calculated annually, according to the minimum interest rate prescribed in section 3J of the Income Tax Ordinance (2.61% in 2018). The loan will be repaid in equal monthly installments (principal and interest) in the amount of 15,000 NIS per installment. The balance of the loan as of December 31, 2020 was approximately 407,000 NIS.
Sublease agreement with companies related to a related party
Canndoc subleases part of its headquarter offices to three related companies to Intercure’s controlling shareholder, Mr. Alexander Rabinovich. The aggregate revenue generated by Intercure from those lease are in negligible amounts per month. The subleases are back-to-back in terms of Canndoc’s lease with the landlord relative to its leases with Mr. Rabinovich.
Executive Compensation
See “Item 6.B Compensation” for compensation to our directors and officers.
Share Reorganization
See “Item 4A History and Development of the Company”.
| C. | Interests of Experts and Counsel. |
None.
| ITEM 8. | FINANCIAL INFORMATION. |
| A. | Consolidated Statements and Other Financial Information. |
See “Item 18. Financial Statements.”
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Legal Proceedings
From time to time we may be subject to legal proceedings and claims in the ordinary course of business.
We are currently a party to a number of lawsuits in Israel, summaries of all our ongoing material lawsuits are provided below.
Class Action - T.Z. 35676-08-19
In August 2019, a motion was filed for approval of a class action that was filed against 17 companies operating in the field of medical cannabis, including Intercure. In the motion, the court was asked to certify the class as “Any person to whom any of the respondents provided cannabis products whose concentrations of active substances were not accurately marked as customary in the pharmaceutical field, from December 1, 2015 until the date of approval of this claim”.
The applicant’s allege that the defendants did not accurately label the concentration of active ingredients in their products. The damages claimed are 685,740,000 NIS for the entire class, or 15,585 NIS per member of the class (with the class being comprised of 44,000 consumers).
The defendants’ have taken the position that the class should not be certified as the threshold conditions for certification were not met as a result of the lack of any reasonable possibility that the alleged claim will succeed at trial. A prehearing on the matter has been set for July 2021.
Supreme Court of Justice 2335/19
In March 2019, an organized group of patients filed a petition with the Israeli supreme court and against the MOH and the Agriculture department. The petition asks the Israeli supreme court to (1) require the MOH to immediately suspend the implementation of the new regulation that disproportionally harms medical cannabis patients; (2) order a declaration that the MOH’s implementation of the new regulation, as currently drafted, would constitute a violation of the constitutional rights of the medical cannabis patients; (3) require the MOH to amend the flaws of the new regulation, prior to their becoming effective; and (4) order the MOH to establish new regulations regarding labeling and the use of pesticides.
In October 2019, all the parties that were a part of the medical cannabis production chain, including Canndoc, were added as respondents and received notice of the decision regarding the petition that was filed against the MOH and the Agriculture department.
The decision has extended the validity of patient licenses until the earlier of either March 31, 2020 or 10 days after the date the MOH comes to a conclusion regarding the price control of medical cannabis products.
In December 2020, the Court issued a decision, pursuant to which, the MOH is required to file supplemental submissions regarding the prices of medical cannabis products. On March 25,.2021, the respondents represented by the State Attorney’s Office filed an updating notice stating that the Prices Committee had come to a decision against imposing price controls on medical cannabis products. However, the Prices Committee announced that it will issue an request for input to the corporations engaged in the medical cannabis market and assess the market every six months. Following the aforementioned, the respondents represented by the State Attorney’s Office believe that the appeal should be rejected and the interim injunction should be canceled.
Class Action 56441-05-20 (Tel Aviv District) Shenhav Industries Ltd. V. Intercure Ltd.
In May 2020, an application to approve a class action lawsuit against Intercure and its officers was filed. The main claim of the applicant was that Intercure violated its obligations regarding reports to the public, in according with the Israeli securities law and its regulations, regarding material events and developments with material implications for the value of its holding in Regenera Pharma Ltd. The plaintiff alleges that the non-disclosure of the information amounts to a breach of the duty of disclosure by Intercure and its officers. According to the application, the shareholders of Intercure were misled and the suffered personal damages in the amount 88 million NIS.
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Intercure’s position is that the disclosure made about Regenera Pharma Ltd. did not breach Israeli securities laws for a number of reasons, including the fact that it was made when the company had sufficient information to ensure that the disclosure is appropriate. In January 2021, a preliminary hearing was held in which the court proposed the parties turn to an expert who would examine the issue of the claim to damages. The proceeding is ongoing. Request for dismissal of the lawsuit was denied and, according to the court’s decision of March 8, 2021, the court will appoint an expert unless the parties decide on one. In light of the fact that this is an early stage in the procedure, and since the existence of a group and the question of damage have not yet been clarified, the chances of approval of the application cannot be assessed at this time.
Procedure No.: Civil lawsuit (Shalom Kafar-saba) 18673-12-20, Natalie Buskila v. Canndoc.
A lawsuit was filed on December 8, 2020 against Canndoc, claiming damages of 2,271,310 NIS. The plaintiff claims that Canndoc fundamentally breached a cooperation agreement between the parties. The allegations are that Canndoc was to purchase from the plaintiff goods weighing 386.5kg, the value of which according to the agreement was approximately 2,241,700 NIS (including VAT). The plaintiff also requested additional remedies for alleged breach of Canndoc’s contractual obligation to provide the plaintiff with seedlings. Canndoc’s position is that the agreement was breached by the plaintiff who did not comply with Canndoc’s guidelines, as required by the agreement, and therefore the product was deficient.
Dividends
During the last ten years, we have not declared or paid any cash dividends on our ordinary shares and do not anticipate paying any cash dividends in the foreseeable future. Payment of cash dividends, if any, in the future will be at the discretion of our board of directors and will depend on then-existing conditions, including our financial condition, operating results, contractual restrictions, capital requirements, business prospects and other factors our board of directors may deem relevant.
The Israeli Companies Law imposes further restrictions on our ability to declare and pay dividends. See Item 10.B “Memorandum and Articles of Association—Dividend and Liquidation Rights” for additional information.
Payment of dividends may be subject to withholding taxes. See “Item 10E. Taxation”, for additional information.
| B. | Significant Changes. |
On February 9, 2021, we entered into an amended and restated merger agreement (hereinafter: the “Arrangement Agreement”) with Subversive Real Estate Acquisition REIT LP, a limited partnership established under the Limited Partnerships Act (Ontario) and a special purpose acquisition company (SPAC) (“Subversive LP”). As a SPAC, Subversive had limited operational activity. As of December 31, 2020, its material assets consisted of USD $226 million in cash and securities held in escrow with no material liabilities. Pursuant to the Arrangement Agreement, on April 23, 2021 our subsidiary acquired all of the outstanding Units of Subversive LP, in exchange for our ordinary shares by way of a plan of arrangement (the “SPAC Transaction”). Concurrently with the SPAC Transction, Subversive LP conducted a non-brokered private placement of 6.5 million Limited Partnership Units for an aggregate amount of $65 million. At the closing of the SPAC Transaction, which occurred on April 23, the Company issued 15,650,280 ordinary shares to Subversive LP unit holders, including those that participated in the concurrent private placement. 5,237,000 of our ordinary shares were allocated as part of the SPAC Transaction and are subject to forfeiture unless the Company’s ordinary shares are listed on NASDAQ and obtain a target weighted average price per share of $13.00 (subject to appropriate adjustments) for any five (5) consecutive trading days during the thirty (30) trading days after the shares are traded on Nasdaq. Total net funds raised from the SPAC Transaction, after redemptions, and the private placement equalled USD $56 million.
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| ITEM 9. | THE OFFER AND LISTING |
| A. | Offer and Listing Details. |
Our ordinary shares have been trading on the TASE under the symbol “INCR” since 2018 and we have submitted an application for dual listing on the TSX under the symbol “INCR”. No trading market currently exists for our ordinary shares in the United States. We have applied to have our ordinary shares listed on the Nasdaq Capital Market under the symbol “INCR”.
| B. | Plan of Distribution. |
Not applicable.
| C. | Markets. |
Our ordinary shares have been trading on the TASE under the symbol “INCR” since 2018 and we have submitted an application for dual listing on the TSX under the symbol “INCR”. No trading market currently exists for our ordinary shares in the United States. We have applied to have our ordinary shares listed on the Nasdaq Capital Market under the symbol “INCR”.
| D. | Selling Shareholders. |
Not applicable.
| E. | Dilution. |
Not applicable.
| F. | Expenses of the Issue. |
Not applicable.
| ITEM 10. | ADDITIONAL INFORMATION |
| A. | Share Capital. |
As of the date hereof, our authorized capital consists of 100,000,000 ordinary shares, with a no par value, of which 42,735,052 are issued and outstanding. All of our issued and outstanding ordinary shares are validly issued, fully paid and non-assessable.
The following is a summary of certain of the rights, privileges, restrictions and conditions attaching to the Intercure Shares.
Ordinary Shares
Holders of Intercure Shares are entitled to receive notice of and to attend any meeting of shareholders of Intercure and to one vote per Intercure Share at any such meetings, to receive dividends if, as and when declared by the Board, and to receive on a pro rata basis the remaining property and assets of Intercure upon its dissolution or winding-up.
Dividend Rights
Subject to the preferential rights (if any) of different types of shares that may exist in the future, holders of Intercure Shares are entitled to receive dividends out of the assets available for the payment or distribution of dividends at such times and in such amount and form as the Board may from time to time determine.
Liquidation Rights
In the event of the liquidation, dissolution or winding-up of Intercure or any other distribution of its assets among its shareholders for the purpose of winding-up its affairs, whether voluntarily or involuntarily, the holders of Intercure Shares will be entitled to receive all of Intercure’s assets remaining after payment of all debts and other liabilities on a pro rata basis and otherwise without preference or distinction among or between the Intercure Shares.
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Pre-emptive and Redemption Rights
Holders of Intercure Shares will not have any pre-emptive or redemption rights.
Transfer of Shares
The Intercure Share are issued in registered form and may be freely transferred under the Intercure Articles, unless the transfer is restricted or prohibited by another instrument, applicable law or the rules of a stock exchange on which the shares are listed for trade.
Ownership Restrictions
The Israeli DDO, and regulations promulgated thereunder as well as directives and guidelines issued from time to time by the IMCA (the “Israeli Cannabis Laws”), set out the framework for obtaining a license to conduct medical cannabis activities in Israel, which includes an assessment by the Israeli police as to the fitness of the applicant and making a recommendation to the IMCA or other relevant regulatory authority whether a license should be granted.
In the event of a corporate applicant, such as Intercure (or its subsidiaries), the assessment by the Israeli police extends to the interested parties of such applicant. An “interested party” for these purposes is defined as: (i) a Holder (as that term is defined below) of 5% or more of the issued share capital or voting power in a company, (ii) any person who has the right to designate one or more directors or to designate the chief executive officer of the company or (iii) any person who serves as a director or chief executive officer of the company.
Under the Israeli Cannabis Laws and the relevant terms of the IMCA licenses, each of the following actions requires the prior approval of the IMCA (the “Approval Requirement”): (i) a Holder (as that term is defined below) becoming an interested party or a person obtaining control of an interested party, or an effective interested party, in each case, whether by virtue of its shareholdings or by virtue of a shareholders agreement; (ii) any share issuances pursuant to which the recipient of the shares becomes an interested party or an effective interested party; and (iii) appointing a director or chief executive officer, or extending the terms of their appointment. In the event that prior approval from the IMCA is not obtained for any of the above, our IMCA licenses may be suspended or revoked. In addition, the terms of our current IMCA licenses provide that they will automatically lapse in the event of any changes to: (i) the ownership of the Intercure Shares by way of a share transfer exceeding 5% of Intercure’s share capital, in any manner whatsoever; and (ii) the identity of our authorized representatives as detailed in the IMCA license changes without authorization.
The Intercure Articles attempt to mitigate the risk of a contravention of the noted regulatory requirements by including provisions that limit the aggregate ownership or control or direction over ownership interests or voting rights of any Holder to no more than 4.99% of the issued and outstanding Intercure Shares (the “Applicable Limit”), unless such Holder has obtained prior approval from the IMCA. As discussed further below, to the extent a Holder acquires, becomes the Holder of or obtains control or direction over ordinary shares in excess of the Applicable Limit in breach of the Approval Requirement, such excess number of ordinary shares will automatically, upon the decision of the Board, be forfeited or become Dormant Shares (the consequences of which are explained below).
Intercure has adopted internal procedures designed to monitor ownership, control or direction and voting power of Holders and to identify any Holder of the Intercure Shares in excess of the Applicable Limit. Following the end of each taxation year, every Holder holding a number of Ordinary Shares in excess of the Applicable Limit must provide Intercure with a written notice of such Holder’s name and address, the number of Intercure Shares held and a description of the manner in which such Intercure Shares are held.
There can be no assurance that the IMCA will consider the provisions contained in the Intercure Articles or these procedures as sufficient to avoid the automatic expiry of the IMCA licenses in the event that a Holder exceeds the Applicable Limit.
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Solely for the purposes of the this section, a “Holder” means a person or group of persons acting together who, directly or indirectly, acquire, hold or maintain control or direction over Intercure Shares, and shall include, if the Holder is a corporation, its subsidiaries and affiliated companies, or, if the Holder is an individual, her or his immediate family members who reside together or whose livelihood is dependent on one another, and for greater certainty shall also include any person or group of persons that acquires control of any such Holder, all within the meaning of such terms as they are used in, and interpreted and applied under Companies Law.
Dormant Shares
Dormant Shares shall not have attached to them any rights, privileges or benefits attached to the non-dormant Intercure Shares during the period they are dormant, including the right to vote, the right to receive dividends or the right to participate in the liquidation and distribution of our assets upon dissolution, and shall remain Dormant Shares until such time as either (a) Intercure, in its sole discretion, are satisfied that the Holder has received the required approval from the IMCA, and that no prejudice to Intercure, its IMCA licenses, or otherwise, will arise as a result of such Dormant Shares regaining all of the rights, privileges and benefits attached to Intercure Shares generally, or (b) such Dormant Shares have been transferred or sold by the Holder to a different Holder that does not exceed the Applicable Limit before and after such sale. Notwithstanding the foregoing, a Holder of Dormant Shares shall be entitled to sell any such Dormant Shares and retain the proceeds associated with such sale.
For greater certainty, if a Holder that exceeds the Applicable Limit is a group of persons acting together, the Intercure Shares held by each member of such group will automatically become Dormant Shares on a pro rata basis within the group.
IMCA Approval to Exceed the Applicable Limit
A holder of Dormant Shares may, at any time, apply to the IMCA or by notice to Intercure, require Intercure to make an application for approval from the IMCA on such person’s behalf in order to seek approval to permit such Holder to acquire or hold Intercure Shares in excess of the Applicable Limit. There is no assurance that the IMCA will provide such approval. As a condition precedent for such approval, pursuant to the Intercure Articles, the Holder will be required to execute an agreement with Intercure undertaking that such Holder will cooperate with Intercure in respect of any future IMCA license applications or renewals, including by providing any required or requested documentation or information in a timely manner.
The Intercure Articles further provide that if a Holder who has obtained approval from the IMCA ceases to continue to maintain the IMCA’s approval for any reason, including a failure to satisfy any conditions attached to any approval granted by the IMCA, then any of the Intercure Shares held by such Holder in excess of the Applicable Limit or in contravention of the IMCA approval shall immediately and upon a decision of the Board, are either forfeited or become Dormant Shares.
The procedures for seeking approval from the IMCA may include, among other things, police record checks and the submission of certain information to the IMCA and the Israeli police. Non-Israeli Holders may be subject to additional administrative and procedural requirements in obtaining the approval from the IMCA than would be required for Israeli Holders (such as the provision of certain declarations), and as a result the applications of non-Israeli Holders may be subject to longer processing times than those submitted by Israeli Holders.
| B. | Memorandum and Articles of Association. |
Meetings of Directors
Pursuant to Companies Law and the Intercure Articles, a resolution proposed at any meeting of the Board at which a quorum is present is adopted if approved by a vote of a majority of the directors present and voting. A quorum of the Board requires at least a majority of the directors then in office who are lawfully entitled to participate in the meeting. If after half an hour, a quorum is not present, the meeting may be adjourned to a future date as decided by the chairman of the board, and in their absence, the directors present at the meeting, provided that all the directors will receive notice of the adjourned meeting at least 24 hours prior to its proposed time of commencement. The quorum for such adjourned meeting of the board shall be not less than 3 members of the board.
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Election of Directors
The Intercure Articles provide that the Board must consist of not less than five but no more than 11 directors, including two external directors required to be appointed by Companies Law. The Intercure Articles provide that, other than the external directors, for whom special election requirements apply, and any directors appointed by the Board to fill vacancies, each of director will be appointed by a simple majority vote of the Intercure Shares, duly voted at a shareholders’ annual meeting for a term of office that will last until the next annual meeting at which point, a new director may be elected by the shareholders.
The Intercure Articles allow, if a director’s office becomes vacant, the remaining serving directors may continue to act in any manner, provided that their number is of the minimal number specified in the Intercure Articles. If the number of serving directors is lower than such minimum number, then the Board may only act in an emergency or to fill the office of director which has become vacant pursuant to the Intercure Articles, or in order to call a general meeting of our shareholders for the purpose of electing directors to fill any of the vacancies. In addition, the directors may appoint additional director(s) to fill vacancies of any director who resigned, provided that three quarters of the remaining directors vote in favour of such appointment. Such directors serve for a term of office equal to the remaining period of the term of office of the directors(s) whose office(s) have been vacated or in the case of new directors, to serve until the subsequent annual general meeting of shareholders.
Under Companies Law, the chief executive officer of a public company or their relatives may not serve as the chairman of the Board unless approved by the holders of a majority of the shares of the company represented and voted at the meeting in person or by proxy or written ballot, for periods not exceeding 3 years each time, provided that:
● at least a majority of the shares of non-controlling shareholders or shareholders that do not have a personal
interest in the approval voted at the meeting are voted in favor (disregarding abstentions); or
● the total number of shares of non-controlling shareholders or shareholders that do not have a personal interest in the approval voted against the proposal does not exceed 2% of the aggregate voting rights in the company.
In addition, a person subordinated, directly or indirectly, to the chief executive officer may not serve as the chairman of the board of directors; the chairman of the board of directors may not be vested with authorities that are granted to those subordinated to the chief executive officer; and the chairman of the board of directors may not serve in any other position in the company or a controlled company, except as a director or chairman of a controlled company.
In addition, under Companies Law, the Board must determine a minimum of one director is are required to have financial and accounting expertise. Under applicable regulations, a director with financial and accounting expertise is a director who, by reason of his or her education, professional experience and skill, has a high level of proficiency in and understanding of business accounting matters and financial statements. He or she must be able to thoroughly comprehend the financial statements of the listed company and initiate debate regarding the manner in which financial information is presented. In determining the number of directors required to have such expertise, the board of directors must consider, among other things, the type and size of the company and the scope and complexity of its operations. The Board has determined that Intercure requires at least one director with the requisite financial and accounting expertise pursuant to applicable Israeli regulations. The Board has determined that Mr. Rabinovich, Mr. Salton and Mr. Hirshfeld have the requisite financial and accounting expertise.
Moreover, pursuant to the Intercure Articles, a person may not be appointed or elected to the Board, nor may the term of appointment of any director be extended, without the prior approval from the IMCA or other relevant regulatory authority having been obtained.
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External Directors
Under Companies Law, companies incorporated under the laws of the State of Israel that are “public companies” are required to appoint at least two external directors, subject to certain exceptions that are not currently available to Intercure. The appointment of external directors must be made by a general meeting of shareholders no later than three months following the company becoming a “public company”.
A person may not be appointed as an external director if the person is a relative of a controlling shareholder or if on the date of the person’s appointment or within the preceding two years the person or his or her relatives, partners, employers or anyone to whom that person is subordinate, whether directly or indirectly, or entities under the person’s control have or had any affiliation with any of the following, or an affiliated entity: (1) Intercure; (2) any person or entity controlling us on the date of such appointment; (3) any relative of a controlling shareholder; or (4) any entity controlled, on the date of such appointment or within the preceding two years, by Intercure or by a controlling shareholder. If there is no controlling shareholder or any shareholder holding 25% or more of voting rights in the company, a person may not be appointed as an external director if the person has any affiliation to the chairman of the board of directors, the chief executive officer (referred to in Companies Law as a general manager), any shareholder holding 5% or more of the company’s shares or voting rights or the senior financial officer as of the date of the person’s appointment.
The term “controlling shareholder” means a shareholder with the ability, together or with others, to direct the activities of the company, other than by virtue of being an office holder. Without limitation to the above, a shareholder is presumed to have “control” of the company and thus to be a controlling shareholder of the company if the shareholder holds 50% or more of the “means of control” of the company or has the power to prevent the making of business decisions in the corporation, excluding resolutions regarding issuance of control means or regarding sale or liquidation of the corporation’s business. “means of control” is defined as (1) the right to vote at a general meeting of a company or a corresponding body of another corporation; or (2) the right to appoint directors of the corporation or its general manager, the right to participate in the profits of the corporation and the right to the company’s asset upon dissolution. For the purpose of approving related-party transactions, the term also includes any shareholder that holds 25% or more of the voting rights of the company if the company has no shareholder that owns more than 50% of its voting rights. For the purpose of determining the holding percentage stated above, two or more shareholders who have a personal interest in a transaction that is brought for the company’s approval are deemed as joint holders.
The term affiliation includes:
● an employment relationship;
● a business or professional relationship maintained on a regular basis;
● control; and
● service as an office holder, excluding service as a director in a private company prior to the first offering of its shares to the public if such director was appointed as a director of the private company in order to serve as an external director following the initial public offering.
The term “relative” is defined as a spouse, sibling, parent, grandparent, descendant, spouse’s descendant, sibling and parent and the spouse of each of the foregoing.
The term “office holder” is defined as a chief executive officer (referred to sometimes as the general manager), chief business manager, deputy general manager, vice general manager, any other person assuming the responsibilities of any of these positions regardless of that person’s title, a director and any other manager directly subordinate to the general manager.
A person may not serve as an external director if that person is the controlling shareholder’s relative, or if that person’s relative, partner, employer, a person to whom such person is subordinate (directly or indirectly) or any entity under the person’s control, at the date of appointment or during the previous 2 years, has an affiliation with the company, the controlling shareholder of the company, or controlling shareholder’s relative, or to any affiliated entity, or if such person has a business or professional relationship with any entity that has an affiliation, even if such relationship is intermittent (excluding insignificant relationships). Additionally, any person who has received compensation other than compensation permitted under Companies Law may not serve as an external director.
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No person can serve as an external director if the person’s position or other affairs create, or may create, a conflict of interest with the person’s responsibilities as a director or may otherwise interfere with the person’s ability to serve as a director or if such a person is an employee of the Israeli Securities Authority or of an Israeli stock exchange. If at the time an external director is appointed all current members of the board of directors, who are not controlling shareholders or relatives of controlling shareholders, are of the same gender, then the external director to be appointed must be of the other gender.
According to regulations promulgated under Companies Law, at least one of the external directors is required to have “financial and accounting expertise,” and the other external director or directors are required to have “professional expertise”. An external director may not be appointed for additional terms unless: (1) such director has “accounting and financial expertise” or (2) he or she has “professional expertise,” and on the date of appointment for another term there is another external director who has “accounting and financial expertise” and the number of “accounting and financial experts” on the board of directors is at least equal to the minimum number determined appropriate by the board of directors. Certain exemptions are granted to companies that are “dually listed”.
The regulations promulgated under Companies Law define an external director with requisite professional qualifications as a director who satisfies one of the following requirements: (1) the director holds an academic degree in either economics, business administration, accounting, law or public administration, (2) the director either holds an academic degree in any other field or has completed another form of higher education in the company’s primary field of business or in an area which is relevant to his or her office as an external director in the company, or (3) the director has at least five years of experience serving in any one of the following, or at least five years of cumulative experience serving in two or more of the following capacities: (a) a senior business management position in a company with a substantial scope of business, (b) a senior position in the company’s primary field of business or (c) a senior position in public administration.
Until the lapse of a two-year period from the date that an external director of a company ceases to act in such capacity, the company in which such external director served, and its controlling shareholder or any entity under control of such controlling shareholder may not, directly or indirectly, grant such former external director, or his or her spouse or child, any benefit, including by way of (i) the appointment of such former director or his or her spouse or his child as an officer in the company or in an entity controlled by the company’s controlling shareholder, (ii) the employment of such former director, and (iii) the engagement, directly or indirectly, of such former director as a provider of professional services for compensation, directly or indirectly, including via an entity under his or her control. With respect to a relative who is not a spouse or a child, such limitations only apply for one year from the date such external director ceased to be engaged in such capacity.
The provisions of Companies Law set forth special approval requirements for the election of external directors. External directors must be elected by a majority vote of the shares present and voting at a shareholders meeting, provided that either:
● such majority includes at least a majority of the shares held by shareholders who are non-controlling shareholders and do not have a personal interest in the election of the external director (other than a personal interest not deriving from a relationship with a controlling shareholder) that are voted at the meeting, excluding abstentions, to which we refer as a disinterested majority; or
● the total number of shares voted by non-controlling shareholders and by shareholders who do not have a personal interest in the election of the external director, against the election of the external director, does not exceed 2% of the aggregate voting rights in the company.
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The initial term of an external director is three years. Thereafter, an external director may be re-elected by shareholders to serve in that capacity for up to two additional three-year terms, provided that:
● his or her service for each such additional term is recommended by one or more shareholders holding at least 1% of the company’s voting rights and is approved at a shareholders meeting by a disinterested majority, where the total number of shares held by non-controlling, disinterested shareholders voting for such reelection exceeds 2% of the aggregate voting rights in the company. In such event, the external director so reappointed may not be a “Related” or a “Competing Shareholder”, as defined below, or a relative of such shareholder, at the time of the appointment, and is not and has not had any affiliation with a Related or Competing Shareholder, at such time or during the two years preceding such person’s reappointment to serve an additional term as external director. The term “Related” or “Competing Shareholder” means a shareholder proposing the reappointment or a shareholder holding 5% or more of the outstanding shares or voting rights of the company, provided, that at the time of the reappointment, such shareholder, the controlling shareholder of such shareholder, or a company controlled by such shareholder, have a business relationship with the company or are competitors of the company;
● the external director proposed his or her own nomination, and such nomination was approved in accordance with the requirements described above;
● his or her service for each such additional term is recommended by the board of directors and is approved at a shareholders meeting by the same majority required for the initial election of an external director (as described above).
The term of office for external directors for Israeli companies traded on certain foreign stock exchanges, may be extended indefinitely in increments of additional three-year terms, in each case provided that the audit committee and the board of directors of the company confirm that, in light of the external director’s expertise and special contribution to the work of the board of directors and its committees, the re-election for such additional period(s) is beneficial to the company, and provided that the external director is re-elected subject to the same shareholder vote requirements as if elected for the first time (as described above).
External directors may be removed from office by a special general meeting of shareholders called by the board of directors, which approves such dismissal by the same shareholder vote percentage required for their election, after receiving the board of directors arguments for such removal, or by a court, in each case, only under limited circumstances, including ceasing to meet the statutory qualifications for appointment, or violating their duty of loyalty to the company. If an external directorship becomes vacant and there are fewer than two external directors on the board of directors at the time, then the board of directors is required under the Companies Law to call a shareholders meeting as soon as practicable to appoint a replacement external director.
Each committee of the board of directors that is authorized to exercise the powers of the board of directors must include at least one external director, except that the audit committee and the compensation committee must include all external directors then serving on the board of directors.
External directors may be compensated only in accordance with regulations adopted under Companies Law.
Dividend and Liquidation Rights
Intercure may declare a dividend to be paid to the holders Intercure Shares on a pro rata basis. Under Companies Law, dividend distributions are determined by the Board and do not require the approval of the shareholders of a company unless the company’s articles of association provide otherwise. The Intercure Articles do not require shareholder approval of a dividend distribution and provide that dividend distributions may be determined by the Board.
Pursuant to Companies Law, the distribution amount is limited to the greater of retained earnings or earnings generated over the previous two years, according to our then last reviewed or audited financial statements, provided that the end of the period to which the financial statements relate is not more than six months prior to the date of the distribution, after the deduction of prior distribution to the extent not already made (and deducted). If Intercure does not meet such criteria, then Intercure may declare and pay dividends with court approval. In each case, Intercure is only permitted to distribute a dividend if the Board and the court, if applicable, determines that there is no reasonable concern that payment of the dividend will prevent Intercure from satisfying its existing and foreseeable obligations as they become due.
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In the event of the liquidation of Intercure, after satisfaction of liabilities to creditors, Intercure’s assets will be distributed to the holders of the Intercure Shares on a pro rata basis. This right, as well as the right to receive dividends, may be affected by the grant of preferential dividend or distribution rights to the holders of a class of shares with preferential rights that may be authorized in the future.
Shareholder Meetings
Under Israeli law and pursuant to the Intercure Articles, Intercure is required to hold an annual general meeting of shareholders once every calendar year, which meeting must be held no later than 15 months after the date of the previous annual general meeting. The Board may call special general meetings whenever it sees fit, at such time and place, as it may determine. In addition, Companies Law provides that the Board is required to convene a special general meeting upon the written request of (i) any two or more of directors or one-quarter or more of the members the Board or (ii) one or more shareholders holding, in the aggregate, either (a) 5% or more of the outstanding issued Intercure Share and 1% or more of the outstanding voting power or (b) 5% or more of the outstanding voting power.
Subject to the provisions of Companies Law and the regulations promulgated thereunder, shareholders entitled to participate and vote at general meetings are the shareholders of record on a date to be decided by the Board, which may generally be between 28 and 40 days prior to the date of the meeting. Furthermore, Companies Law requires that resolutions regarding the following matters must be passed at a general meeting of shareholders:
| ● | Amendments to the Intercure Articles; | |
| ● | Appointment or termination of Intercure’s auditors; | |
| ● | Appointment of external directors; | |
| ● | Approval of certain related party transactions; | |
| ● | Increases or reductions of our authorized share capital; | |
| ● | A merger; and | |
| ● | The exercise of the Board’s powers by a general meeting, if the Board is unable to exercise its powers and the exercise of any of its powers is required for proper management. | |
| ● | The dissolution of the company |
Quorum
Pursuant to both Israeli law and the Intercure Articles, holders of Intercure Shares have one vote for each Intercure Share held on all matters submitted to a vote before the shareholders at a general meeting. The quorum required for general meetings of shareholders is at least two shareholders present in person, by proxy or written ballot, who hold or represent between them at least 1/3 of our outstanding voting rights. A meeting adjourned for lack of a quorum shall be adjourned either to the same day the following week, at the same time and place, or to such day and at such time and place as the Board of the meeting determines. At the reconvened meeting, two shareholders who hold no less than 10% of the issued and outstanding Intercure Shares present in person or by proxy shall constitute quorum.
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Voting
The Intercure Articles provide that all resolutions of shareholders require a simple majority vote, unless otherwise required by Companies Law or the Intercure Articles. Under Companies Law, the following transactions require specific internal approvals: (1) a transaction by a company with an officeholder thereof, or a transaction of a company with another person in which an officeholder of the company has a personal interest; provided however, that an officeholder of a parent company as well as a wholly-owned and controlled subsidiary thereof shall not be considered as having a personal interest in a transaction between the parent company and the subsidiary solely due to them being an officeholder of both of them; (2) the engagement by the company with an office holder, including a director, regarding terms of engagement and other roles; (3) an extraordinary transaction of a public company with a controlling shareholder, or an extraordinary transaction of a public company with another person in which the controlling shareholder has a personal interest, including a private placement that is an extraordinary transaction; (4) the direct or indirect engagement by a public company with a controlling shareholder, or their relatives (including through a company under their control), for services provided to the company or if the person is an officeholder or employee – as to the conditions of their office and employment; (5) a private placement issuing more than 20% of the voting rights in the company that as a result of which, (i) the holdings of a substantial shareholder of securities in the company will increase; (ii) a person will become a substantial shareholder of the Company after the issuance; or (iii) a person becoming controlling shareholder. Pursuant to the Intercure Articles, the alteration of the rights, privileges, preferences or obligations of any class of our shares requires a simple majority of the class so affected (or such other percentage of the relevant class that may be set forth in the governing documents relevant to such class), in addition to the ordinary majority vote of all classes of shares voting together as a single class at a shareholder meeting. An exception to the simple majority vote requirement is a resolution for the voluntary winding up, or an approval of a scheme of arrangement or reorganization, of the company, increasing its share capital, or changes to the company’s stated objectives, all of which requires the approval of holders of 75% of the voting rights represented at the meeting and voting on the resolution. Another exception to the simple majority voting requirement is an amendment to the Intercure Articles, which requires a special majority vote.
Access to corporate records
Pursuant to Companies Law, all shareholders generally have the right to review minutes of Intercure’s general meetings, Intercure’s shareholder register, including with respect to material shareholders, the Intercure Articles, Intercure’s financial statements and certain other public documents. Any shareholder who specifies the purpose of its request may request to review any document in Intercure’s possession that relates to any action or transaction with a related party which requires shareholder approval under Companies Law. Intercure may deny a request to review a document if it determines that the request was not made in good faith, that the document contains a commercial secret or a patent or that the document’s disclosure may otherwise impair its interests.
Acquisitions under Israeli law
Full tender offer
A person wishing to acquire shares of a public Israeli company and who would as a result hold over 90% of the target company’s issued and outstanding share capital or that of a certain class of shares is required by Companies Law to make a tender offer to all of the company’s shareholders or the shareholders who holds shares of the same class for the purchase of all of the issued and outstanding shares of the company or of the same class, as applicable.
If the shareholders who do not respond to or accept the offer hold less than 5% of the issued and outstanding share capital of the company or of the applicable class of the shares, and more than 50% of the offerees that do not have a personal interest in the offer accept it, all of the shares that the acquirer offered to purchase will be transferred to the acquirer by operation of law. However, a tender offer will also be accepted if the shareholders who do not accept the offer hold less than 2% of the issued and outstanding share capital of the company or of the applicable class of shares.
Upon a successful completion of such a full tender offer, any shareholder that was an offeree in such tender offer, whether the shareholder accepted the tender offer or not, may, within six months from the date of acceptance of the tender offer, petition the Israeli court to determine whether the tender offer was for less than fair value and that the fair value should be paid as determined by the court unless the acquirer stipulated that a shareholder that accepts the offer may not seek appraisal rights. If the shareholders who did not respond or accept the tender offer hold at least 5% of the issued and outstanding share capital of the company or of the applicable class, or the shareholders who did not accept the tender offer hold 2% or more of the issued and outstanding share capital of the company (or of the applicable class), the acquirer may not acquire shares of the company that will increase its holdings to more than 90% of the company’s issued and outstanding share capital or of the applicable class from shareholders who accepted the tender offer.
In addition, a person is prohibited from purchasing additional shares (or additional shares of a specific class) if the person holds more than 90% of the issued and outstanding share capital in general or 90% of the issued and outstanding shares of a specific class.
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Special tender offer
Companies Law provides that an acquisition of shares of a public Israeli company must be made by means of a special tender offer if as a result of the acquisition the purchaser would become a holder of at least 25% of the voting rights in the company. This rule does not apply if there is already another holder of at least 25% of the voting rights in the company. Similarly, Companies Law provides that an acquisition of shares in a public company must be made by means of a tender offer if as a result of the acquisition the purchaser would become a holder of more than 45% of the voting rights in the company, if there is no other shareholder of the company who holds more than 45% of the voting rights in the company.
These requirements do not apply if the acquisition (i) occurs in the context of a private placement, provided that the general meeting approved the acquisition as a private offering whose purpose is to give the acquirer at least 25% of the voting rights in the company if there is no person who holds at least 25% of the voting rights in the company, or as a private offering whose purpose is to give the acquirer 45% of the voting rights in the company, if there is no person who holds 45% of the voting rights in the company, (ii) was from a shareholder holding at least 25% of the voting rights in the company and resulted in the acquirer becoming a holder of at least 25% of the voting rights in the company, or (iii) was from a holder of more than 45% of the voting rights in the company and resulted in the acquirer becoming a holder of more than 45% of the voting rights in the company.
The special tender offer may be consummated only if (i) at least 5% of the voting power attached to the company’s outstanding shares will be acquired by the offeror and (ii) the special tender offer is accepted by a majority of the votes of those offerees who gave notice of their position in respect of the offer, excluding the votes of a holder of control in the offeror, a person who has personal interest in acceptance of the special tender offer, holders of 25% or more of the voting rights in the company or anyone on their behalf, including their relatives and entities controlled by them.
In the event that a special tender offer is made, a company’s board of directors is required to express its opinion on the advisability of the offer, or shall abstain from expressing any opinion if it is unable to do so, provided that it gives the reasons for its abstention. In addition, the board of directors must disclose any personal interest each member of the board of directors has in the offer or stems therefrom. An office holder in a target company who, in his or her capacity as an office holder, performs an action the purpose of which is to cause the failure of an existing or foreseeable special tender offer or is to impair the chances of its acceptance, is liable to the potential purchaser and shareholders for damages resulting from his or her acts, unless such office holder acted in good faith and had reasonable grounds to believe he or she was acting for the benefit of the company. However, office holders of the target company may negotiate with the potential purchaser in order to improve the terms of the special tender offer, and may further negotiate with third parties in order to obtain a competing offer.
If a special tender offer was accepted by a majority of the shareholders who announced their stand on such offer, then shareholders who did not respond to the special tender offer or had objected to the offer may accept the offer within four days of the last day set for the acceptance of the offer.
In the event that a special tender offer is accepted, then the purchaser or any person or entity controlling it or under common control with the purchaser or such controlling person or entity shall refrain from making a subsequent tender offer for the purchase of shares of the target company and cannot execute a merger with the target company for a period of one year from the date of the offer, unless the purchaser or such person or entity undertook to effect such an offer or merger in the initial special tender offer.
Mergers
Companies Law permits merger transactions if approved by each party’s board of directors and, unless certain requirements described under Companies Law are met, a majority of each party’s shareholders and, in the case of the target company, a majority vote of each class of its shares, voted on the proposed merger at a shareholders meeting. The board of directors of a merging company is required pursuant to Companies Law to discuss and determine whether in its opinion there exists a reasonable concern that as a result of a proposed merger, the surviving company will not be able to satisfy its obligations towards its creditors, such determination taking into account the financial status of the merging companies. If the board of directors has determined that such a concern exists, it may not approve a proposed merger. Following the approval of the board of directors of each of the merging companies, the boards of directors must jointly prepare a merger proposal for submission to the Israeli Registrar of Companies.
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For the purposes of the shareholder vote, unless a court rules otherwise, the merger will not be deemed approved if a majority of the shares represented at the shareholders meeting that are held by parties other than the other party to the merger, or by any person (or group of persons acting in concert) who holds 25% or more of the outstanding shares or the right to appoint 25% or more of the directors of the other party, vote against the merger. In addition, if the nonsurviving entity of the merger has more than one class of shares, the merger must be approved by each class of shareholders. If the transaction would have been approved but for the separate approval of each class or the exclusion of the votes of certain shareholders as provided above, a court may still approve the merger upon the request of holders of at least 25% of the voting rights of a company, if the court holds that the merger is fair and reasonable, taking into account the value of the parties to the merger and the consideration offered to the shareholders. Pursuant to Companies Law, if a merger is with a company’s controlling shareholder or if the controlling shareholder has a personal interest in the merger, then the merger is instead subject to the same special majority approval that governs all extraordinary transactions with controlling shareholders.
Under Companies Law, each merging company must send a copy of the proposed merger plan to its secured creditors. Unsecured creditors are entitled to receive notice of the merger pursuant to regulations promulgated under Companies Law. Upon the request of a creditor of either party to the proposed merger, the court may delay or prevent the merger if it concludes that there exists a reasonable concern that, as a result of the merger, the surviving company will be unable to satisfy the obligations the target company. The court may further give instructions to secure the rights of creditors.
In addition, a merger may not be completed unless at least 50 days have passed from the date that a proposal for approval of the merger was filed with the Israeli Registrar of Companies and 30 days from the date that shareholder approval of both merging companies was obtained.
Borrowing Powers
Pursuant to Companies Law and the Intercure Articles, the Board may exercise all powers to borrow money for company purposes, including the issuances of debentures or bonds guaranteed by all or part of Intercure’s current and future assets, including Intercure’s capital that was not issued at the time.
Changes in Capital
The Intercure Articles enable Intercure to increase or reduce its share capital. Any such changes is subject to Israeli law and must be approved by a resolution duly passed by Intercure’s shareholders at a general meeting.
Transfer Agent and Registrar
Our transfer agent is AST Trust Company.
| C. | Material Contracts. |
We have not entered into any material contract within the two years prior to the date of this registration statement, other than contracts entered into in the ordinary course of business, or as otherwise described herein in “Item 4.A. History and Development of the Company” above, “Item 4.B. Business Overview” above, “Item 7A. Major Shareholders” above, or “Item 8B. Significant Changes”.
| D. | Exchange Controls. |
Dividends paid or deemed to be paid or credited by the Company to a U.S. Holder are subject to Canadian withholding tax under Part XIII of the Tax Act. The default rate of withholding tax is 25% of the gross dividend paid to a non-resident of Canada.
Under the Treaty, the rate of withholding tax on dividends paid to a U.S. Holder is generally limited to 15% of the gross dividend. In the case of a U.S. Holder that is a corporation owning at least 10% of the Company’s voting shares, the applicable withholding rate is 5% of the gross dividend, provided the U.S. Holder can establish entitlement to the benefits of the Treaty.”
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Except as provided in the Investment Canada Act, or the Act, there are no limitations under the laws of Canada, the Province of British Columbia or in the charter or any other constituent documents of the Company on the right of foreigners to hold or vote the ordinary shares of the Company.
The following discussion summarizes the principal features of the Investment Canada Act for a non-resident who proposes to acquire the ordinary shares.
The Investment Canada Act generally prohibits an “entity” that is not Canadian-controlled from effecting an acquisition of control of a Canadian business that exceeds the applicable financial threshold for review, unless after review, the Director of Investments appointed by the Minister responsible for the Investment Canada Act is satisfied that the investment is likely to be of net benefit to Canada. The financial thresholds for review vary according to whether the direct acquisition of control is made by (i) an investor that is controlled by nationals of a specified free trade party; (ii) a national of a World Trade Organization (WTO) member state; or (iii) a state-owned enterprise. Any investment, regardless of the applicable financial threshold for review, may be reviewed on national security grounds. An acquisition of control is presumed to occur under the Investment Canada Act if a non-Canadian acquires a majority of the ordinary shares. An acquisition resulting in the non-Canadian purchaser holding one third or more, but less than a majority, of the ordinary shares would be presumed to be an acquisition of control of the Company unless it could be established that, on the acquisition, the Company was not controlled in fact by the acquirer through the ownership of the ordinary shares. Certain transactions relating to the ordinary shares would be exempt from the Investment Canada Act, including: (a) an acquisition of the ordinary shares by a person in the ordinary course of that person’s business as a trader or dealer in securities; (b) an acquisition of control of the Company in connection with the realization of security granted for a loan or other financial assistance and not for a purpose related to the provisions of the Investment Canada Act; and (c) an acquisition of control of the Company by reason of an amalgamation, merger, consolidation or corporate reorganization following which the ultimate direct or indirect control in fact of the Company, through the ownership of the ordinary shares, remained unchanged
| E. | Taxation. |
U.S. Tax Considerations
U.S. Federal Income Tax Considerations
THE FOLLOWING SUMMARY IS INCLUDED HEREIN FOR GENERAL INFORMATION AND IS NOT INTENDED TO BE, AND SHOULD NOT BE CONSIDERED TO BE, LEGAL OR TAX ADVICE. EACH U.S. HOLDER SHOULD CONSULT WITH HIS OR HER OWN TAX ADVISOR AS TO THE PARTICULAR U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND SALE OF SHARES, INCLUDING THE EFFECTS OF APPLICABLE STATE, LOCAL, FOREIGN OR OTHER TAX LAWS AND POSSIBLE CHANGES IN THE TAX LAWS.
This section describes the material U.S. federal income tax consequences to a U.S. holder (as defined below) of owning ordinary shares. It applies only to ordinary shares that are held as capital assets for tax purposes. This section does not apply to a holder of ordinary shares that is a member of a class of holders subject to special rules, including a financial institution, a dealer or trader in securities, a regulated investment company, a real estate investment trust, a grantor trust, a U.S. expatriate, a tax-exempt organization, an insurance company, a person liable for alternative minimum tax, a person who actually or constructively owns 10% or more of the stock of the Company, a person that holds ordinary shares as part of a straddle or a hedging or conversion transaction, a person that purchases or sells ordinary shares as part of a wash sale for tax purposes, or a person whose functional currency is not the U.S. dollar. Further, this description does not address state, local, non-U.S, or other tax laws, nor does it address the 3.8% U.S. federal Medicare tax on net investment income, the alternative minimum tax or the U.S. federal gift and estate tax consequences of owning and disposing of ordinary shares.
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For purposes of this description, a “U.S. holder” is a beneficial owner of ordinary shares who holds such ordinary shares as capital assets within the meaning of the Code and is, for U.S. federal income tax purposes: (i) an individual citizen or resident of the United States; (ii) a corporation created or organized in or under the laws of the United States or any state thereof, including the District of Columbia; (iii) an estate the income of which is subject to U.S. federal income taxation regardless of its source; or (iv) a trust that either (a) is subject to the supervision of a court within the United States and has one or more U.S. persons with authority to control all substantial decisions or (b) has a valid election in effect under applicable Treasury Regulations to be treated as a U.S. person.
If a partnership holds the ordinary shares, the U.S. federal income tax treatment of a partner generally will depend on the status of the partner and the tax treatment of the partnership. A partner in a partnership holding the ordinary shares should consult its tax advisor with regard to the U.S. federal income tax treatment of an investment in the ordinary shares.
Distributions
Subject to the Passive Foreign Investment Company, or PFIC, rules discussed below, U.S. holders generally will include as dividend income the U.S. dollar value of the gross amount of any distributions of cash or property (without deduction for any withholding tax), other than certain pro rata distributions of ordinary shares, with respect to ordinary shares to the extent the distributions are made from our current or accumulated earnings and profits, as determined for U.S. federal income tax purposes. A U.S. holder will include the dividend income on the day actually or constructively received by the holder. We do not intend to maintain calculations of earnings and profits, as determined for U.S. federal income tax purposes. Consequently, any distributions generally will be treated as dividend income.
Dividends paid to a non-corporate U.S. holder on shares will generally be taxable at the preferential rates applicable to long-term capital gains provided (a) that certain holding period requirements are satisfied, (b) (i) the U.S.-Canada income tax treaty, or the Treaty, is a qualified treaty and we are eligible for benefits under the Treaty or (ii) our ordinary shares are readily tradable on a U.S. securities market, and (c) provided that we were not, in the taxable year prior to the year in which the dividend was paid, and are not, in the taxable year in which the dividend is paid, a PFIC. The Treaty has been approved for the purposes of the qualified dividend rules. If the Company is a PFIC, any dividends paid to a noncorporate U.S. holder will not qualify for the preferential tax rates ordinarily applicable to “qualified dividends.” In the case of a corporate U.S. holder, dividends on shares are taxed as ordinary income and will not be eligible for the dividends received deduction generally allowed to U.S. corporations in respect of dividends received from other U.S. corporations.
The amount of any cash distribution paid in any foreign currency will be equal to the U.S. dollar value of such currency, calculated by reference to the spot rate in effect on the date such distribution is received by the U.S. holder, regardless of whether and when the foreign currency is in fact converted into U.S. dollars. If the foreign currency is converted into U.S. dollars on the date received, the U.S. holder generally should not recognize foreign currency gain or loss on such conversion. If the foreign currency is not converted into U.S. dollars on the date received, the U.S. holder will have a basis in the foreign currency equal to its U.S. dollar value on the date received, and generally will recognize foreign currency gain or loss on a subsequent conversion or other disposal of such currency. Such foreign currency gain or loss generally will be treated as U.S. source ordinary income or loss for foreign tax credit limitation purposes.
Dividends will be income from sources outside the United States, and generally will be “passive category” income or, for certain taxpayers, “general category” income, which are treated separately from each other for the purpose of computing the foreign tax credit allowable to a U.S. holder. The availability of the foreign tax credit and the application of the limitations on its availability are fact specific and are subject to complex rules. In general, a taxpayer’s ability to use foreign tax credits may be limited and is dependent on the particular circumstances. U.S. holders should consult their own tax advisors with respect to these matters.
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Sale, Exchange or other Disposition of ordinary shares
Subject to the PFIC rules discussed below, a U.S. holder who sells or otherwise disposes of ordinary shares will recognize a capital gain or loss for U.S. federal income tax purposes equal to the difference between the U.S. dollar value of the amount realized and the holder’s tax basis, determined in U.S. dollars, in those ordinary shares. The gain or loss will generally be income or loss from sources within the United States for foreign tax credit limitation purposes. The capital gain of a non-corporate U.S. holder is generally taxed at preferential rates where the holder has a holding period greater than 12 months in the shares sold. There are limitations on the deductibility of capital losses.
The U.S. dollar value of any foreign currency received upon a sale or other disposition of ordinary shares will be calculated by reference to the spot rate in effect on the date of sale or other disposal (or, in the case of a cash basis or electing accrual basis taxpayer, at the spot rate of exchange on the settlement date). A U.S. holder will have a tax basis in the foreign currency received equal to that U.S. dollar amount, and generally will recognize foreign currency gain or loss on a subsequent conversion or other disposal of the foreign currency. This foreign currency gain or loss generally will be treated as U.S. source ordinary income or loss for foreign tax credit limitation purposes. If such foreign currency is converted into U.S. dollars on the date received by the U.S. holder, a cash basis or electing accrual basis U.S. holder should not recognize any gain or loss on such conversion.
Passive Foreign Investment Company
A non-U.S. corporation will be a PFIC for U.S. federal income tax purposes for any taxable year if either:
| ● | 75% or more of its gross income for such year is “passive income” which for this purpose generally includes dividends, interest, royalties, rents and gains from commodities and securities transactions and gains from assets that produce passive income; or | |
| ● | 50% or more of the value of its gross assets (based on an average of the quarterly values of the gross assets) during such year is attributable to assets that produce passive income or are held for the production of passive income. |
Passive income does not include rents and royalties derived from the active conduct of a trade or business. If the stock of a non-U.S. corporation is publicly traded for the taxable year, the asset test is applied using the fair market value of the assets for purposes of measuring such corporation’s assets. If we own at least 25% (by value) of the stock of another corporation, we will be treated, for purposes of the PFIC tests, as owning our proportionate share of the other corporation’s assets and receiving our proportionate share of the other corporation’s income for purposes of the PFIC income and asset tests. If the stock of a non-U.S. corporation is publicly-traded for the taxable year, the asset test is applied using the fair market value of the assets for purposes of measuring such corporation’s assets. If we were a PFIC in any year during a U.S. holder’s holding period for our ordinary shares, we would ordinarily continue to be treated as a PFIC for each subsequent year during which the U.S. holder owned the ordinary shares. Based on the composition of our assets and income, we believe that we should not be treated as a PFIC for U.S. federal income tax purposes with respect to our 2019 taxable year and we do not intend or anticipate becoming a PFIC for any future taxable year. However, the determination of PFIC status is a factual determination that must be made annually at the close of each taxable year and therefore, there can be no certainty as to our status in this regard until the close of the current or any future taxable year. Changes in the nature of our income or assets or a decrease in the trading price of our ordinary shares may cause us to be considered a PFIC in the current or any subsequent year. Therefore, there can be no assurance that we or any of our subsidiaries will not be classified as a PFIC until the close of the current taxable year or for any future taxable year.
U.S. Information Reporting and Back-up Withholding
Dividend payments with respect to our ordinary shares and proceeds from the sale or other disposition of our ordinary shares may be subject to information reporting to the IRS and possible U.S. backup withholding. Back-up withholding will not apply, however, to a U.S. holder who furnishes a correct taxpayer identification number and makes any other required certification or who is otherwise exempt from back-up withholding. U.S. holders who are required to establish their exempt status may be required to provide such certification on Internal Revenue Service, or the IRS, Form W-9. U.S. holders should consult their tax advisors regarding the application of the U.S. information reporting and back-up withholding rules.
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Back-up withholding is not an additional tax. Amounts withheld as back-up withholding may be credited against a U.S. holder’s U.S. federal income tax liability, and such holder may obtain a refund of any excess amounts withheld under the back-up withholding rules by timely filing the appropriate claim for refund with the IRS and furnishing any required information.
Information With Respect to Foreign Financial Assets
Certain U.S. holders that own “specified foreign financial assets” with an aggregate value in excess of $50,000 are generally required to file an information statement along with their U.S. federal tax returns, currently on IRS Form 8938, with respect to such assets. “Specified foreign financial assets” include any financial accounts held at a non-U.S. financial institution, as well as securities issued by a non-U.S. issuer that are not held in accounts maintained by financial institutions. If a U.S. holder does not include in such holder’s gross income an amount relating to one or more specified foreign financial assets, and the amount such U.S. holder omits is more than $5,000, any tax such U.S. holder owes for the tax year can be assessed at any time within 6 years after the filing of such U.S. holder’s federal tax return. U.S. holders who fail to report the required information could be subject to substantial penalties. U.S. holders are encouraged to consult with their own tax advisors regarding the possible application of the foregoing or other United States informational reporting requirements to our ordinary shares in light of their particular circumstances.
Canadian Tax Considerations
Certain Canadian Federal Income Tax Information for United States Residents
The following summarizes the principal Canadian federal income tax considerations generally applicable to the holding and disposition of ordinary shares of the Company by a holder (a) who, for the purposes of the Income Tax Act (Canada) the, or the Tax Act, and at all relevant times, is not resident in Canada or deemed to be resident in Canada, deals at arm’s length and is not affiliated with the Company, holds the ordinary shares as capital property and does not use or hold the ordinary shares in the course of carrying on, or otherwise in connection with, a business in Canada, and (b) who, for the purposes of the Canada-United States Income Tax Convention, or the Treaty, and at all relevant times, is a resident of the United States, has never been a resident of Canada, has not held or used (and does not hold or use) ordinary shares in connection with a permanent establishment or fixed base in Canada, and who qualifies for the full benefits of the Treaty. The Canada Revenue Agency has introduced special forms that the Company will request from each non-resident shareholder to be used in order to substantiate the particular shareholder’s eligibility for Treaty benefits; affected holders should consult with their own advisers with respect to the completion of these forms as and when requested, in addition to any other relevant compliance matters.
Holders who meet all such criteria in clauses (a) and (b) above are referred to herein as a “U.S. Holder” or “U.S. Holders”, and this summary only addresses such U.S. Holders. The summary does not deal with special situations, such as particular circumstances of traders or dealers, limited liability companies, tax-exempt entities, insurers, financial institutions (including those to which the mark-to-market provisions of the Tax Act apply), entities considered fiscally transparent under applicable law, or otherwise.
This summary is based on the current provisions of the Tax Act and the regulations thereunder, all proposed amendments to the Tax Act and regulations publicly announced by the Minister of Finance (Canada) to the date hereof, the current provisions of the Treaty and our understanding of the current administrative practices of the Canada Revenue Agency. It has been assumed that all currently proposed amendments to the Tax Act and regulations will be enacted as proposed and that there will be no other relevant change in any governing law, the Treaty or administrative policy, although no assurance can be given in these respects. This summary does not take into account provincial, U.S. or other foreign income tax considerations, which may differ significantly from those discussed herein.
This summary is not exhaustive of all possible Canadian income tax consequences. It is not intended as legal or tax advice to any particular U.S. Holder and should not be so construed. The tax consequences to a U.S. Holder will depend on that U.S. Holder’s particular circumstances. Accordingly, all U.S. Holders or prospective U.S. Holders should consult their own tax advisers with respect to the tax consequences applicable to them having regard to their own particular circumstances. The discussion below is qualified accordingly.
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Dividend
Dividends paid or deemed to be paid or credited by the Company to a U.S. Holder are subject to Canadian withholding tax under Part XIII of the Tax Act. The default rate of withholding tax is 25% of the gross dividend paid to a non-resident of Canada.
Under the Treaty, the rate of withholding tax on dividends paid to a U.S. Holder is generally limited to 15% of the gross dividend. In the case of a U.S. Holder that is a corporation owning at least 10% of the Company’s voting shares, the applicable withholding rate is 5% of the gross dividend, provided the U.S. Holder can establish entitlement to the benefits of the Treaty.
The Company is required to withhold Part XIII tax from each dividend, and remit the withheld amount directly to the Receiver General of Canada for the account of the shareholder. U.S. Holders entitled to reduced withholding under the Treaty must satisfy the Company regarding any such entitlement, which may include the provision of the special forms referenced above, so as to ensure that the correct amount of tax is withheld and remitted. U.S. Holders are not required to file a separate income tax return to report dividends received from the Company in a given year.
Disposition
A U.S. Holder is generally not subject to tax under the Tax Act in respect of a capital gain realized on the disposition or deemed disposition of a common share in the open market or otherwise, unless the share is “taxable Canadian property” to the holder thereof and the U.S. Holder is not entitled to relief under the Treaty.
Provided that the Company’s ordinary shares are listed on a “designated stock exchange” for purposes of the Tax Act (which currently includes the TSX Venture) at the time of disposition, a common share will generally not constitute taxable Canadian property to a U.S. Holder unless, at any time during the 60 month period ending at the time of disposition, (i) the U.S. Holder, persons with whom the U.S. Holder did not deal at arm’s length for purposes of the Tax Act, partnerships in which the U.S. Holder or such persons holds a membership interest directly or indirectly, (or the U.S. Holder together with any such foregoing persons) or partnerships, owned 25% or more of the issued shares of any class or series of the Company AND at the time (ii) more than 50% of the fair market value of the share was derived directly or indirectly from certain types of assets, including real or immoveable property situated in Canada, Canadian resource properties or timber resource properties, and options, interests or rights in respect of any of the foregoing.
Even if a common share is taxable Canadian Property to a U.S. Holder, a capital gain resulting of the disposition of that share will not be included in computing the U.S. Holder’s taxable income for the purposes of the Tax Act, provided that the share constitutes “treaty-protected property” of such U.S. Holder. Ordinary shares owned by a U.S. Holder will generally be treaty-protected property if the gain from the disposition of such share would, because of the Treaty, be exempt from tax under the Tax Act.
U.S. Holders holding Ordinary shares as taxable Canadian property should consult with the U.S. Holder’s own tax advisers in advance of any disposition or deemed disposition thereof under the Tax Act in order to determine whether any relief from tax under the Tax Act may be available by virtue of the Treaty, and any related compliance procedures.
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If a U.S. Holder realizes a capital gain or capital loss from the disposition of a common share that constitutes taxable Canadian property and is not treaty-protected property for the purposes of the Tax Act, the capital gain or capital loss is the amount, if any, by which the U.S. Holder’s proceeds of disposition exceed (or are exceeded by, respectively) the aggregate of the U.S. Holder’s adjusted cost base of the share and reasonable expenses of disposition as determined under the Tax Act. The capital gain or loss must be computed in Canadian currency using a weighted average cost base for identical properties and the rate of exchange quoted by the Bank of Canada as at the day in which the particular amount (e.g. proceeds and adjusted cost base) first arose. Generally, one-half of a capital gain, or taxable capital gain, is included in income for Canadian tax purposes in the year of disposition and one-half of a capital loss, or allowable capital loss, must be deducted from taxable capital gains realized on the disposition of other taxable Canadian property by the U.S. Holder in that year. Allowable capital losses in excess of taxable capital gains from the dispositions of taxable Canadian property for that year may generally be carried back up to three years, or forward indefinitely, and deducted against net taxable capital gains from the disposition of taxable Canadian property in those years, in the manner permitted under the Tax Act. Reporting and filing requirements will also arise. Such U.S. Holders should consult their own tax advisors.
| F. | Dividends and Paying Agents. |
During the last ten years, we have not declared or paid any cash dividends on our ordinary shares and do not anticipate paying any cash dividends in the foreseeable future. Payment of cash dividends, if any, in the future will be at the discretion of our board of directors and will depend on then-existing conditions, including our financial condition, operating results, contractual restrictions, capital requirements, business prospects and other factors our board of directors may deem relevant.
| G. | Statement by Experts. |
Not applicable.
| H. | Documents on Display. |
When this registration statement becomes effective, we will be subject to the information reporting requirements of the Exchange Act, applicable to foreign private issuers and under those requirements will file reports with the SEC. You may read and copy the registration statement, including the related exhibits and schedules, and any document we file with the SEC without charge at the SEC’s public reference room at 100 F Street, N.E., Room 1580, Washington, DC 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. The SEC also maintains an Internet website that contains reports and other information regarding issuers that file electronically with the SEC. Our filings with the SEC will also available to the public through the SEC’s website at www.sec.gov.
As a foreign private issuer, we will be exempt from the rules under the Exchange Act related to the furnishing and content of proxy statements, and our officers, directors and principal shareholders will be exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we will not be required under the Exchange Act to file annual, quarterly and current reports and financial statements with the SEC as frequently or as promptly as U.S. domestic companies whose securities are registered under the Exchange Act. However, we will file with the SEC, within 120 days after the end of each fiscal year, or such applicable time as required by the SEC, an annual report on Form 20-F containing financial statements audited by an independent registered public accounting firm, and may submit to the SEC, on a Form 6-K, unaudited quarterly financial information.
We maintain a corporate website http://www.canndoc.com. Information contained on, or that can be accessed through, our website and the other websites referenced above do not constitute a part of this registration statement. We have included these website addresses in this registration statement solely as inactive textual references.
| I. | Subsidiary Information. |
Not applicable.
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| ITEM 11. | QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
We do not have any financial instruments other than normal course accounts receivable and payables associated with our business activities. We are subject to foreign exchange and liquidity risks.
Foreign Exchange Risk
Our reporting and functional currency is the NIS, but some portion of our operational expenses are in U.S. dollars, Canadian dollars and Euros. As a result, we are exposed to some currency fluctuation risks. We may, in the future, decide to enter into currency hedging transactions to decrease the risk of financial exposure from fluctuations in the exchange rate of the currencies mentioned above in relation to the NIS. These measures, however, may not adequately protect us and our operations could be adversely affected if we are unable to effectively hedge against currency fluctuations in the future.
Liquidity risk
We monitor forecasts of our liquidity reserve (comprising cash and cash equivalents available-for-sale financial assets and short-term deposits). We generally carry this out based on our expected cash flows in accordance with practice and limits set by our management. We are in the process of expanding our operations and the expenses associated therewith and we are therefore exposed to liquidity risk.
| ITEM 12. | DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES |
| A. | Debt Securities. |
Not applicable.
| B. | Warrants and rights. |
Not applicable.
| C. | Other Securities. |
Not applicable.
| D. | American Depositary Shares. |
Not applicable.
| ITEM 13. | DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES |
Not applicable.
| ITEM 14. | MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS |
Not applicable.
| ITEM 15. | CONTROLS AND PROCEDURES |
Not applicable.
| ITEM 16A. | AUDIT COMMITTEE FINANCIAL EXPERT |
Not applicable.
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| ITEM 16B. | CODE OF ETHICS |
Not applicable.
| ITEM 16C. | PRINCIPAL ACCOUNTANT FEES AND SERVICES |
Not applicable.
| ITEM 16D. | EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES |
Not applicable.
| ITEM 16E. | PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS |
Not applicable.
| ITEM 16F. | CHANGE IN REGISTRANT’S CERTIFYING ACCOUNTANT |
On March 1, 2021, our audit committee of our board and our board of directors approved the replacement of Brightman Almagor Zohar & Co., a firm in the Deloitte Global Network, or Deloitte, as our independent registered public accounting firm. Subsequent to the replacement of Deloitte, we engaged Somekh Chaikin (member firm of KPMG International), an independent registered public accounting firm, or KPMG, as our independent registered public accounting firm. There was no disagreement between us and Deloitte.
The reports of Deloitte on our consolidated financial statements for the fiscal year ended December 31, 2019 did not contain an adverse opinion or a disclaimer of opinion and were not qualified or modified as to uncertainty, audit scope or accounting principle. Deloitte did not produce a report on our consolidated financial statements for the fiscal year ended December 31, 2020.
During the fiscal years ended December 31, 2019 and 2020 and the subsequent interim period through the March 1, 2021, there have been no (i) disagreements between us and Deloitte on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure, which disagreements if not resolved to the satisfaction of Deloitte would have caused them to make reference thereto in their reports on the consolidated financial statements for such years, or (ii) reportable events as defined in Form 20-F Item 16F (a)(1)(v).
We provided Deloitte with a copy of the disclosures under this Item 16F and requested from Deloitte letter addressed to the Securities and Exchange Commission indicating whether it agrees with such disclosures. A copy of Deloitte’s letter dated June 7, 2021 is attached as Exhibit 15.2.
During each of the years ended December 31, 2019 and 2020 and the subsequent interim period through January 31, 2021, neither we nor anyone on behalf of us has consulted with KPMG regarding (i) the application of accounting principles to a specific transaction, either completed or proposed, or the type of audit opinion that might be rendered on our consolidated financial statements, and neither a written report nor oral advice was provided to us that KPMG concluded was an important factor considered by us in reaching a decision as to any accounting, auditing, or financial reporting issue, (ii) any matter that was the subject of a disagreement pursuant to Item 16F(a)(1)(iv) of the instructions to Form 20-F, or (iii) any reportable event pursuant to Item 16F(a)(1)(v) of the instructions to Form 20-F.
| ITEM 16G. | CORPORATE GOVERNANCE |
Not applicable.
| ITEM 16H. | MINE SAFETY DISCLOSURE |
Not applicable.
| 114 |
| ITEM 17. | FINANCIAL STATEMENTS |
We have elected to provide financial statements and related information pursuant to Item 18.
| ITEM 18. | FINANCIAL STATEMENTS |
The consolidated financial statements and the related notes required by this Item are included in this registration statement beginning on page F-1.
| 115 |
Intercure Ltd.
Consolidated Financial Statements as of December 31, 2020
| 116 |
| Consolidated Statements of Financial Position | Intercure Ltd. |
Intercure Ltd.
Consolidated Financial Statements as of December 31, 2020
Table of Contents
| 117 |
| Consolidated Statements of Financial Position | Intercure Ltd. |
Report of Independent Registered Public Accounting Firm
To the Shareholders and Board of Directors
Intercure Ltd.:
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated statements of financial position of Intercure Ltd. (the Company) as of December 31, 2020 and 2019, the related consolidated statements of loss and other comprehensive loss, changes in equity, and cash flows for each of the years in the three-year period ended December 31, 2020, and the related notes (collectively, the consolidated financial statements). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2020 and 2019, and the results of its operations and its cash flows for each of the years in the three-year period ended December 31, 2020, in conformity with International Financial Reporting Standards, as issued by the International Accounting Standards Board.
Change in Accounting Principle
As discussed in Note 2Q to the consolidated financial statements, the Company has changed its method of accounting for leases as of January 1, 2019 due to the adoption of International Financial Reporting Standards 16, Leases.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
Somekh Chaikin
Member Firm of KPMG International
We have served as the Company’s auditor since 2021.
Tel-Aviv, Israel
April 18, 2021
| F-1 |
| Consolidated Statements of Financial Position | Intercure Ltd. |
| As of December 31 | ||||||||||
| 2020 | 2019 | |||||||||
| NIS in thousands | ||||||||||
| Current assets | ||||||||||
| Cash and cash equivalents | 4 | 37,888 | 27,338 | |||||||
| Restricted cash | 40 | - | ||||||||
| Trade receivables | 11A | 12,466 | 1,587 | |||||||
| Other receivables | 11B | 3,680 | 7,316 | |||||||
| Inventory | 5 | 19,049 | 4,645 | |||||||
| Biological assets | 6 | 3,153 | 1,145 | |||||||
| Financial assets measured at fair value through profit or loss | 7 | 376 | 177 | |||||||
| 76,652 | 42,208 | |||||||||
| Non-current assets | ||||||||||
| Property, plant and equipment and right-of-use asset | 9 | 53,470 | 32,150 | |||||||
| Goodwill | 8 | 190,103 | 167,965 | |||||||
| Deferred tax assets | 15 | 2,904 | - | |||||||
| Financial assets measured at fair value through profit or loss | 10 | 3,141 | 39,910 | |||||||
| 249,618 | 240,025 | |||||||||
| Total assets | 326,270 | 282,233 | ||||||||
| F-2 |
| Consolidated Statements of Financial Position | Intercure Ltd. |
| As of December 31 | ||||||||||
| 2020 | 2019 | |||||||||
| NIS in thousands | ||||||||||
| Current liabilities | ||||||||||
| Current maturities | 1,254 | 213 | ||||||||
| Trade payables | 18,622 | 4,935 | ||||||||
| Other payables | 11C | 8,705 | 3,852 | |||||||
| Short term loan from controlling shareholder | 13A | - | 13,633 | |||||||
| Short term loan from non-controlling interest | 8C | 1,296 | - | |||||||
| 29,877 | 22,633 | |||||||||
| Non-current liabilities | ||||||||||
| Borrowings | 388 | 43 | ||||||||
| Liabilities in respect of employee benefits | 155 | 194 | ||||||||
| Loan from related party | 13B | 241 | 393 | |||||||
| Lease liability | 3,500 | 2,769 | ||||||||
| 4,284 | 3,399 | |||||||||
| Equity | 17 | |||||||||
| Share capital, premium and other reserves | 452,259 | 406,297 | ||||||||
| Capital reserve for transactions with controlling shareholder | 2,388 | 2,388 | ||||||||
| Receipts on account of shares | 11,017 | 1,214 | ||||||||
| Accumelated losses | (191,158 | ) | (153,927 | ) | ||||||
| Equity attributable to owners of the Company | 274,506 | 255,972 | ||||||||
| Non-controlling interests | 17,603 | 229 | ||||||||
| Total equity | 292,109 | 256,201 | ||||||||
| Total equity and liabilities | 326,270 | 282,233 | ||||||||
The accompanying notes are an integral part of the consolidated financial statements.
| April 18, 2021 | ||||||
| Approval Date of the Financial Statements | Ehud Barak Chairman of the Board |
Alex Rabinovitch CEO |
Amos Cohen CFO |
| F-3 |
| Consolidated Statements of Loss and Other Comprehensive Loss | Intercure Ltd. |
| For the year ended December 31 | ||||||||||||||
| 2020 | 2019 | 2018 | ||||||||||||
| Note | NIS in thousands (excluding data regarding loss per share) | |||||||||||||
| Revenue | 65,035 | 8,926 | - | |||||||||||
| Cost of revenue before fair value adjustments | 18 | 34,649 | 7,456 | - | ||||||||||
| Gross income before impact of changes in fair value | 30,386 | 1,470 | - | |||||||||||
| Unrealized changes to fair value adjustments of biological assets | 6 | 3,202 | 3,076 | - | ||||||||||
| Profit from fair value changes realized in the current year | (1,613 | ) | (3,067 | ) | - | |||||||||
| Gross income | 31,975 | 1,479 | - | |||||||||||
| Research and development expenses | 1,576 | 1,710 | - | |||||||||||
| General and administrative expenses | 18 | 18,601 | 80,109 | 9,810 | ||||||||||
| Selling and marketing expenses | 8,440 | 2,693 | - | |||||||||||
| Other expenses (income), net | 18 | 4,563 | (58,962 | ) | 324 | |||||||||
| Company’s share in the loss of associate | 8 | - | 340 | 1 | ||||||||||
| Changes in the fair value of financial assets through profit or loss, net | 7,10 | 37,195 | (20,996 | ) | 577 | |||||||||
| Operating loss | 38,400 | 3,415 | 10,712 | |||||||||||
| Financing income | 19 | 620 | 141 | - | ||||||||||
| Financing expenses | 20 | 528 | 3,292 | 2,086 | ||||||||||
| Financing expenses (income), net | (92 | ) | 3,151 | 2,086 | ||||||||||
| Loss before taxes on income | 38,308 | 6,566 | 12,798 | |||||||||||
| Income tax benefit | 15 | 2,268 | 673 | - | ||||||||||
| Total comprehensive loss for the year | 36,040 | 5,893 | 12,798 | |||||||||||
| Attribution of net loss for the year: | ||||||||||||||
| To the Company’s shareholders | 37,231 | 5,893 | 12,798 | |||||||||||
| To non-controlling interests | (1,191 | ) | - | - | ||||||||||
| Total | 36,040 | 5,893 | 12,798 | |||||||||||
| Loss per share | ||||||||||||||
| Basic and diluted loss** | (1.42 | ) | (0.25 | ) | (0.71 | ) | ||||||||
**On April 8, 2021 , after the balance sheet date, the Company effectuated a capital consolidation. See note 24C.
The accompanying notes are an integral part of the consolidated financial statements.
| F-4 |
| Consolidated Statements of Changes in Equity | Intercure Ltd. |
Share capital, premium and other reserves | Capital reserve for transactions with controlling shareholder | Receipts on account of shares | Accumelated losses | Equity attributable to owners of the Company | Non-controlling interests | Total equity | ||||||||||||||||||||||
| NIS in thousands | ||||||||||||||||||||||||||||
| As of January 1, 2020 | 406,297 | 2,388 | 1,214 | (153,927 | ) | 255,972 | 229 | 256,201 | ||||||||||||||||||||
| Income (loss) for the year | - | - | - | (37,231 | ) | (37,231 | ) | 1,191 | (36,040 | ) | ||||||||||||||||||
| Exercise of share options (Note 17Q) | 833 | - | - | - | 833 | - | 833 | |||||||||||||||||||||
| Allocation
of shares for the acquisition of Cannolam (Note 8) | 6,904 | - | - | - | 6,904 | 15,655 | 22,559 | |||||||||||||||||||||
| Issuance of shares,net (Note 17L) | 28,217 | - | 9,803 | - | 38,020 | - | 38,020 | |||||||||||||||||||||
| Share-based payment (Note 17P) | 10,008 | - | - | - | 10,008 | 528 | 10,536 | |||||||||||||||||||||
| As of December 31, 2020 | 452,259 | 2,388 | 11,017 | (191,158 | ) | 274,506 | 17,603 | 292,109 | ||||||||||||||||||||
| As of January 1, 2019 | 162,304 | 1,790 | 3,602 | (148,034 | ) | 19,662 | - | 19,662 | ||||||||||||||||||||
| Loss for the year | - | - | - | (5,893 | ) | (5,893 | ) | - | (5,893 | ) | ||||||||||||||||||
| Exercise of share options (Note 17Q) | 6,271 | - | (2,388 | ) | - | 3,883 | - | 3,883 | ||||||||||||||||||||
| Allocation
of shares for the acquisition of Canndoc (Note 8) | 107,632 | - | - | - | 107,632 | - | 107,632 | |||||||||||||||||||||
| Issuance of shares, net (Note 13A) | 62,283 | - | - | - | 62,283 | - | 62,283 | |||||||||||||||||||||
| Transactions with controlling shareholder (Note 13A) | - | 598 | - | - | 598 | - | 598 | |||||||||||||||||||||
| Share-based
payment (Note 17P) | 67,807 | - | - | - | 67,807 | 229 | 68,036 | |||||||||||||||||||||
| As of December 31, 2019 | 406,297 | 2,388 | 1,214 | (153,927 | ) | 255,972 | 229 | 256,201 | ||||||||||||||||||||
| F-5 |
| Consolidated Statements of Changes in Equity | Intercure Ltd. |
Share capital, premium and other reserves | Capital reserve for transactions with controlling shareholder | Receipts on account of shares | Accumelated losses | Total equity | ||||||||||||||||
| NIS in thousands | ||||||||||||||||||||
| As of January 1, 2018 | 153,804 | 1,617 | 1,533 | (135,236 | ) | 21,718 | ||||||||||||||
| Loss for the year | - | - | - | (12,798 | ) | (12,798 | ) | |||||||||||||
| Exercise of share options (Note 17Q) | 670 | - | - | 670 | ||||||||||||||||
| Reclassification of options to equity (Note 14) | - | - | 855 | - | 855 | |||||||||||||||
| Issuance of options (Note 13A) | - | - | 1,214 | - | 1,214 | |||||||||||||||
| Transactions
with controlling shareholder (Note 13A) | - | 173 | - | - | 173 | |||||||||||||||
| Share-based payment (Note 17P) | 7,830 | - | - | - | 7,830 | |||||||||||||||
| As of December 31, 2018 | 162,304 | 1,790 | 3,602 | (148,034 | ) | 19,662 | ||||||||||||||
The accompanying notes are an integral part of the consolidated financial statements.
| F-6 |
| Consolidated Statements of Cash Flows | Intercure Ltd. |
For the year ended December 31 | ||||||||||||
| 2020 | 2019 | 2018 | ||||||||||
| NIS in thousands | ||||||||||||
| Cash flows from operating activities | ||||||||||||
| Loss | (36,040 | ) | (5,893 | ) | (12,798 | ) | ||||||
| Interest paid | (93 | ) | (41 | ) | - | |||||||
| Taxes paid | - | (50 | ) | - | ||||||||
| Adjustments required to present cash flows from operating activities (A) | 43,936 | (5,585 | ) | 11,312 | ||||||||
| Net cash provided by (used in) operating activities | 7,803 | (11,569 | ) | (1,486 | ) | |||||||
| Cash flows from investing activities | ||||||||||||
| Purchase of property, plant and equipment | (20,841 | ) | (28,144 | ) | (93 | ) | ||||||
| Investment in associate (Note 8) | - | (2,260 | ) | (5,240 | ) | |||||||
| Repayment of loan | (1,643 | ) | - | - | ||||||||
| Increase in deposit | (40 | ) | - | - | ||||||||
| Acquisition of subsidiary, net of cash | 387 | 385 | - | |||||||||
| Investment in assets measured at fair value through profit or loss | (626 | ) | 4,532 | (1,326 | ) | |||||||
| Grant of short-term loans to equity accounted investees | - | (600 | ) | (1,296 | ) | |||||||
| Net cash used in investing activities | (22,763 | ) | (26,087 | ) | (7,955 | ) | ||||||
| Cash flows from financing activities | ||||||||||||
| Proceeds from issuance of shares as part of private issuance, net | 38,020 | 62,283 | - | |||||||||
| Proceeds from exercise of options (Note 17) | 833 | 3,883 | 670 | |||||||||
| Issuance of options | - | - | 1,214 | |||||||||
| Deferred issuance costs | - | (2,426 | ) | - | ||||||||
| Lease payments | (576 | ) | (189 | ) | - | |||||||
| Receipt (repayment) of loans from banks | 665 | (174 | ) | - | ||||||||
| Receipt (repayment) of loan from related party and controlling shareholder | (13,653 | ) | (143 | ) | 8,730 | |||||||
| Net cash provided by financing activities | 25,289 | 63,234 | 10,614 | |||||||||
| Increase in cash and cash equivalents | 10,329 | 25,578 | 1,173 | |||||||||
| Exchange differences in respect of balances of cash and cash equivalents | 221 | (1,656 | ) | 13 | ||||||||
| Balance of cash and cash equivalents at beginning of year | 27,338 | 3,416 | 2,230 | |||||||||
| Balance of cash and cash equivalents at end of year | 37,888 | 27,338 | 3,416 | |||||||||
The accompanying notes are an integral part of the consolidated financial statements.
| F-7 |
| Consolidated Statements of Cash Flows | Intercure Ltd. |
For the year ended December 31 | ||||||||||||
| 2020 | 2019 | 2018 | ||||||||||
| NIS in thousands | ||||||||||||
| A) Adjustments required to present cash flows from operating activities | ||||||||||||
| Adjustments to items in the consolidated statement of comprehensive income: | ||||||||||||
| Depreciation | 3,253 | 828 | 10 | |||||||||
| share-based payment (Note 17L) | 10,008 | 68,036 | 7,830 | |||||||||
| Changes in the fair value of financial assets through profit or loss, net | 37,195 | (20,996 | ) | 577 | ||||||||
| Gain in respect of acquisition of a subsidiary (Note 8B) | - | (58,808 | ) | - | ||||||||
| Increase in the value of liabilities in respect of options (Note 14) | - | - | 840 | |||||||||
| Finance expenses (income), net | (92 | ) | 3,151 | 1,246 | ||||||||
| Change in liabilities in respect of employee benefits, net | (39 | ) | 96 | - | ||||||||
| Income tax | (2,268 | ) | (673 | ) | - | |||||||
| Company’s share in the loss of associate | - | 340 | 1 | |||||||||
| 48,057 | (8,026 | ) | 10,504 | |||||||||
| Changes in assets and liabilities items: | ||||||||||||
| Increase in trade receivables | (9,608 | ) | (1,183 | ) | - | |||||||
| Decrease (increase) in other receivables | 5,139 | (4,243 | ) | 40 | ||||||||
| Decrease (increase) in inventory | (14,167 | ) | 3,029 | - | ||||||||
| Increase in biological assets | (2,008 | ) | (1,096 | ) | - | |||||||
| Increase in trade payables | 12,269 | 4,021 | 228 | |||||||||
| Increase in other payables | 4,254 | 1,913 | 540 | |||||||||
| (4,121 | ) | 2,441 | 808 | |||||||||
| 43,936 | (5,585 | ) | 11,312 | |||||||||
| B) Material non-cash operations | ||||||||||||
| Acquisition of subsidiary, net of cash against share issuance (Note 8B) | 6,904 | 107,632 | - | |||||||||
| Classification of liability for options to equity due to the change in functional currency | - | - | 855 | |||||||||
| Withholding tax in connection with acquisition of associate (Note 8) | - | - | 2,260 | |||||||||
| F-8 |
| Consolidated Statements of Cash Flows | Intercure Ltd. |
C) Aggregate cash flows derived for the Company as a result of the acquisition (Note 8):
2020- Acquisition of Cannolam
| NIS in thousands | ||||
| Trade and other receivables | 1,790 | |||
| Inventory | 237 | |||
| Property, plant and equipment and right-of-use asset | 3,204 | |||
| Trade and other payables | (1,862 | ) | ||
| Short term loan | (1,296 | ) | ||
| Lease liability | (2,039 | ) | ||
| Goodwill | 22,138 | |||
| Issuance of shares | (6,904 | ) | ||
| Non-controlling interests | (15,655 | ) | ||
| Total acquisition of subsidiary, net of cash | (387 | ) | ||
2019- Acquisition of Canndoc
| NIS in thousands | ||||
| Disposition of equity accounted investee | (65,967 | ) | ||
| Issuance of shares | (107,632 | ) | ||
| Goodwill | 167,965 | |||
| Trade and other receivables | 1,051 | |||
| Inventory and biological assets | 7,723 | |||
| Property, plant and equipment | 1,791 | |||
| Loan | (2,146 | ) | ||
| Trade and other payables | (1,731 | ) | ||
| Short term loan from related parties | (716 | ) | ||
| Deferred tax liability | (723 | ) | ||
| Total acquisition of subsidiary, net of cash | (385 | ) | ||
The accompanying notes are an integral part of the consolidated financial statements.
| F-9 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
Note 1 - General
| A. | The Company’s activity |
Intercure Ltd. (hereinafter: the “Company”) is a public company which is listed on the Tel Aviv Stock Exchange and domiciled in Israel. Its offices are located in Herzliya. The Company is engaged in the medical cannabis sector through its holding of the entire issued and paid-up capital of Canndoc Ltd. (hereinafter: “Canndoc”), and through its 50.1% stake in the issued and paid-in capital of Cannolam Ltd. The Company also has additional holdings in the biomed sector. See Note 23 regarding operating segments.
Canndoc:
In 2018, the Company decided to expand its activity to the medical cannabis sector, and therefore engaged in an investment agreement with Canndoc Ltd. (hereinafter: “Canndoc”).
In 2019, the Company completed the acquisition of the entire holding of Canndoc, such that, after the transaction was closed, the Company holds 100% of Canndoc’s issued and paid-in capital.
Canndoc has partnered with Kibbutz Beit HaEmek and Kibbuutz Nir-Oz (the “Kibbutzim”) for the purpose of breeding, cultivating and harvesting of pharmaceutical-grade cannabis. The activities of these collaborative arrangements with the Kibbutzim are not conducted through separate legal entities and therefore the Company recognizes its share in the assets, liabilities and results of operations of each activity according to the Company’s rights and obligations according to the contractual agreements with the Kibbutzim.
The Company, through Canndoc, is engaged in research, marketing, cultivation, production and distribution of medical cannabis products in Israel and around the world. For additional details regarding the investment in Canndoc, see Note 8.
Cannolam:
On May 14, 2020, the Company’s board of directors approved the engagement in a series of agreements for the acquisition of a 50.1% stake in the shares of Cannolam Ltd., an Israeli private company, which holds, independently and/or through its owned subsidiaries, the exclusive rights to the production, importing, distribution and use of leading international cannabis and lifestyle trademarks in the teritory of the state of Israel. Inter alia, Cannolam Ltd. Has exclusive rights in respect of the brands Cookies, Mr. Nice and Oxon Pharma. For additional information, see Note 8.
Investments in the biomed sector:
The Company invested in two companies in the biomed sector: Regenera Pharma Ltd. (hereinafter: “Regenera”) and NovellusDX Ltd. (hereinafter: “Novellus”).
For additional details regarding investments in the biomed sector, see Note 10.
| F-10 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
Note 1 - General (Cont.)
| B. | Definitions: |
In these consolidated financial statements:
| Company | - | Intercure Ltd. |
| Group | - | The Company and its subsidiaries. |
| Related Parties | - | As defined in IAS 24. |
| USD | - | U.S. dollars. |
| Subsidiaries | - | Companies which are controlled by the Company (as defined in IFRS 10), directly or indirectly, and whose financial statements are fully consolidated with the Company’s reports. |
| Investee companies | - | Companies which are not under the Company’s control, and which are presented according to the equity method. |
Note 2 - Significant Accounting Policies
Framework for preparation of the financial statements
The accounting policy described below was applied in the financial statements consistently, in all of the presented periods, unless specified otherwise.
| A. | Presentation basis of the financial statements |
The Company’s consolidated financial statements as of December 31, 2020 and 2019, and for each of the three years in the period ended December 31, 2020, comply with International Financial Reporting Standards (hereinafter: “IFRS”) and clarifications thereto which have been published by the International Accounting Standards Board (IASB).
The Company’s financial statements are prepared on a historical cost basis, except for financial assets or financial liabilities at fair value through profit or loss.
The Company’s operating cycle does not exceed 12 months.
In its preparation of the financial statements, management is required to use significant accounting estimates. Management is also required to exercise discretion in the process of applying the significant accounting policies. The issues which require significant discretion and the use of estimates, which have a significant impact on the amounts which were recognized in the financial statements, are specified in Note 3. Actual results may differ significantly from the estimates and assumptions which were used by Company management.
| F-11 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| B. | Consolidated financial statements |
The consolidated financial statements include the reports of companies over which the Company has control (subsidiaries).
Subsidiaries are entities which are controlled by the Company. The Company controls an entity when the Company has the power to influence the investee entity, when it has exposure or rights to variable returns from its involvement in the entity, and when it has the ability to exercise its influence over the investee entity in order to affect the amount of returns which it will receive from that entity. Subsidiaries are fully included in the consolidation beginning from the date when the Company obtains control of them. Consolidation is discontinued on the date when control ceases.
The consolidation of financial statements is performed beginning on the date when control was obtained, until the date when control was discontinued.
The financial statements of the Company and the subsidiaries are prepared for identical dates and periods. The accounting policy in the financial statements of the investees was implemented in a manner which was uniform and consistent with the policy which was applied in the Company’s financial statements. Material intercompany balances and transactions, and profit and loss due to transactions between the Company and the subsidiaries, were canceled in their entirety in the consolidated financial statements.
| C. | Functional currency and presentation currency |
Until August 2018, the Company’s functional currency was the USD. In September 2018, the Company acquired 38% of the shares of Canndoc Ltd., and expanded its operations to the medical cannabis sector. The acquisition of the remaining Canndoc shares was completed in early 2019. Canndoc Ltd. Is an Israeli company whose functional currency is the NIS. The transaction involving the acquisition of Canndoc shares was executed through a NIS denominated loan from Mr. Alex Rabinovitch, the Company’s CEO and controlling shareholder (the “Controlling Shareholder”), as stated in Note 13. The Company’s cash balances are mostly held in NIS, and the Company’s expenses are mostly denominated in NIS. In light of the foregoing, the Company determined that its main operating environment had changed, and accordingly, that its functional currency had changed from the USD to the NIS, on a prospective basis.
| F-12 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
Presentation of comparative figures
As stated above, the functional currency for the periods presented in comparative figures for 2018 is the USD. The comparative figures which are presented in this report were translated to NIS according to the exchange rate on the date of the transition to NIS as the functional currency.
Assessment of the classification of liabilities and equity due to the change in functional currency
Following the change in functional currency, the Company re-assessed the classification of equity instruments and liabilities which it has issued. The Company has options which were granted to investors which, during the period when the functional currency was the USD, did not meet the definition of equity, and were therefore classified as liabilities. Following the change in functional currency, these instruments do not meet the definition of a liability, and therefore, on the date of the transition to NIS as the functional currency, they were classified as equity instruments according to their fair value on the reclassification date. The total effect amounted to approximately NIS 855 thousand.
Transactions, assets and liabilities in foreign currency
Transactions denominated in a foreign currency other than the Company’s functional currency are recorded upon initial recognition, according to the exchange rate on the transaction date. Following initial recognition, monetary assets and liabilities denominated in foreign currency are translated on each reporting date into the functional currency, according to the exchange rate as of that date. Exchange differences are carried to the statement of income. Non-monetary assets and liabilities denominated in foreign currency which are presented at cost are translated according to the exchange rate on the transaction date. Non-monetary assets and liabilities denominated in foreign currency which are presented at fair value are translated into the functional currency using the exchange rate as of the date when the fair value was determined.
| D. | Cash and cash equivalents |
Cash equivalents are considered highly liquid investments, including unrestricted short term deposits in banking corporations whose maturity period does not exceed three months after the date of the deposit.
| E. | Short term deposits |
Short term deposits in banking corporations whose original period exceeds three months after the date of the investment, and which do not meet the definition of cash equivalents. The deposits are presented according to the terms of their deposit.
| F-13 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| F. | Biological assets |
In accordance with IAS 41, the Company measures biological assets which are mostly comprised of medical cannabis plants and agricultural produce at fair value less selling costs until harvesting. This value is used as the cost basis of inventory after the harvest. Profit or loss due to changes in fair value less selling costs are included under the Company’s profit / loss in the year when they materialized. Growing costs in respect of the biological assets are capitalized to the cost of the biological assets. When calculating the fair value of a biological asset, the Company is required to use various estimates and approximations, including, inter alia, estimates regarding the growth stage of the seedlings until the harvest date, harvesting costs, selling costs, costs associated with oil extraction and packaging of finished products, estimates regarding the selling price of the Company’s products, and estimates of materials lost in process. Changes in these assumptions may result in significant changes in the value of the biological asset, the value of inventory, and the cost of sales, as well as in the fair value component in respect of the biological asset.
| G. | Inventory |
Inventory is measured as the lower of either cost or net realizable value. The cost of purchased inventory is determined on a first in - first out (FIFO) basis. The Company classifies the cannabis agricultural produce from a biological asset to inventory when harvesting, according to the fair value less selling costs on that date. This value serves as the cost basis of inventory. Processing costs and other additional costs which materialize in the process of bringing the inventory to its current location and condition are added to the cost of inventory. Net realizable value represents the estimated selling price in the ordinary course of business, less estimated costs to completion and the costs required to execute the sale. The Company periodically evaluates the condition and age of inventory, and provisions for slow inventory are made accordingly.
| H. | Revenue recognition |
Revenue from contracts with customers is recognized in the statement of income when the control of the asset or of the service has been transferred to the customer. The control transfer date is generally the date of delivery to the customer. Revenue is measured and recognized according to the fair value of the proceeds which are expected to be received in accordance with the contract terms, less amounts which have been collected for third parties (e.g., taxes). Revenue is recognized in the statement of income up to the extent to which are expected to flow to the Company, and the revenue and costs, if relevant, are reliably measurable.
| F-14 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
When determining the amount of revenue from contracts with customers, the Company evaluates whether it functions as a primary provider, or as an agent in the contract. The Company is the primary provider when it controls the guaranteed goods or services before they are transferred to the customer. In such cases, the Company recognizes revenue as the gross amount of proceeds. In cases where the Company functions as an agent, the Company recognizes the revenue as a net amount, after deducting the amounts which are owed to the primary provider. The Company currently has no material arrangements where it is acting as an agent. In cases where the products are transferred to the distributor and held by them in consignment until their sale by the distributor to a third party which constitutes the end customer, the Company recognizes revenue from their sale on the date when they are sold by the distributor to the third party.
| I. | Property, plant and equipment |
Items of property, plant and equipment are presented at cost plus direct acquisition costs, less accumulated depreciation and less accumulated impairment loss, and do not include routine maintenance expenses. The cost includes replacement parts and auxiliary equipment which are used in connection with fixed assets.
Items of property, plant and equipment which are of significant cost relative to the total cost of the item are depreciated separately, according to the component approach.
Depreciation is calculated in equal annual rates according to the straight line method, throughout the asset’s useful lifetime, as follows:
| % | ||||
| Machinery and equipment | 7-15 | |||
| Computers | 33 | |||
| Leasehold improvements | 10 | |||
Building improvements are depreciated in a straight line throughout the estimated lifetime of the improvement.
The useful lifetime, depreciation method and residual value of each asset is evaluated, as a minimum, at the end of each year, and changes are treated as a prospective change in accounting estimate. The depreciation of assets is discontinued when the asset is classified as held for sale or when the asset is written off, whichever is earlier.
| J. | Taxes on income |
Expenses (income) in respect of taxes on income include the total amount of current taxes, as well as the total change in the balances of deferred tax, excluding deferred taxes due to transactions carried directly to equity, and business combination transactions.
| F-15 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| K. | Financial instruments: |
| 1. | Financial assets |
Financial assets are measured on the date of initial recognition at fair value plus transaction costs which are directly attributable to the acquisition of the financial asset, except in case of a financial asset measured at fair value through profit or loss, for which the transaction costs are carried to the statement of income.
The Company classifies and measures the debt instruments in its financial statements based on the following criteria:
| (A) | The Company’s business model for the management of financial assets; and | |
| (B) | The characteristics of the financial asset’s contractual cash flows. |
Most of the Company’s financial assets are classified as Financial assets mesured at fair value through profit or loss
| 2. | Impairment of financial assets |
The Company evaluates, on each reporting date, the loss provision in respect of financial debt instruments which are not measured at fair value through profit or loss.
The Company distinguishes between two situations involving recognition of a loss provision;
| A) | Debt instruments whose credit quality has not significantly deteriorated since the initial recognition date, or cases involving low credit risk - the loss provision which will be recognized in respect of that debt instrument will take into account expected credit loss during the 12 month period after the reporting date; or | |
| B) | Debt instruments whose credit quality has significantly deteriorated since the initial recognition date, and cases involving credit risk which is not low - the loss provision which will be recognized will take into account expected credit losses throughout the instrument’s remaining lifetime. |
The Company applies the expedient which was determined in the standard, according to which it assumes that a debt instrument’s credit risk has not significantly increased since the initial recognition date if it was determined, on the reporting date, that the instrument’s credit risk is low, for example, when the instrument has an external rating of “investment grade”.
Impairment in respect of debt instruments which are measured at amortized cost is carried to the statement of income against a provision, while impairment in respect of debt instruments which are measured at fair value through other comprehensive income is carried against a capital reserve, and does not reduce the carrying amount of the financial asset in the statement of financial position.
| F-16 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
The Company has financial assets with short credit periods, such as trade receivables, to which it is entitled to apply the expedient specified in the model, i.e., the Company will measure the loss provision in an amount equal to the expected credit losses throughout the instrument’s entire lifetime. The Company chose to adopt the expedient in respect of those financial assets.
| 3. | Financial liabilities measured at amortized cost |
On the date of initial recognition, the Company measures the financial liabilities at fair value less transaction costs which are directly attributable to the issuance of the financial liability.
Following initial recognition, the Company measures all financial liabilities at amortized cost using the effective interest method, except for financial liabilities at fair value through profit or loss.
| 4. | Derecognition of financial liabilities |
The Company derecognizes a financial liability when and only when it has been settled, canceled or has expired.
A financial liability is extinguished when the debtor has settled the liability by cash payment, through other financial assets, through goods or services, or has been legally released from the liability.
In case of changes to the terms of an existing financial liability, the Company evaluates whether the terms of the liability differ significantly from the current terms.
When a significant change is made to the terms of an existing financial liability, the change is treated as derecognition of the original liability, and recognition of the new liability. The difference between the aforementioned two liabilities in the financial statements is credited to the statement of income.
In case the change is immaterial, the Company updates the amount of the liability, by discounting the new cash flows using the original effective interest rate, while the differences are carried to the statement of loss and comprehasive loss.
When evaluating whether the case involves a significant change to the terms of an existing liability, the Company takes into account qualitative and quantitative considerations.
| L. | Fair value measurement |
Fair value is the price which would be received upon the sale of an asset, or the price which would be paid upon the transfer of a liability, in an ordinary transaction between market participants on the measurement date.
The measurement of fair value is based on the assumption that the transaction will be executed in the main market of the asset or liability in question, or in lieu of a main market, in the most advantageous market.
The fair value of an asset or liability is measured according to assumptions which market participants would use when pricing the asset or liability, assuming the market participants are working in favor of their own economic interests.
| F-17 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
The Group uses valuation techniques as appropriate for the circumstances, and for which sufficient obtainable data exists in order to measure fair value, while maximizing the use of relevant observable inputs, and minimizing the use of unobservable inputs.
All assets and liabilities which are measured at fair value, or whose fair value was disclosed, are divided into categories in the fair value hierarchy, based on the lowest level of inputs which is significant to the measurement of fair value in its entirety:
| Level 1: | Quoted prices (without adjustments) in an active market of identical assets and liabilities. | |
| Level 2: | Inputs which are not quoted prices which are included in level 1, which are directly or indirectly observable. | |
| Level 3: | Inputs which are not based on observable market data, as described in Note 6 - Biological Assets. Investments in financial assets measured at fair value through profit or loss (investments in companies in the biomed sector) are mostly performed using the OPM valuation technique (without using market data), as described in Note 10. |
| M. | Provisions |
A provision is recognized when the Group has a (legal or constructive) liability in the present due to an event which occurred in the past, when it is expected that economic resources will be required in order to settle the liability, and when it can be reliably measured.
| N. | Shared-based payment |
Employees / other service providers of the Company are entitled to benefits in the form of the Group’s equity-settled share-based payment plans.
The cost of equity-settled transactions with employees is measured according to the fair value of the equity instrument on the grant date. The fair value is established using a generally accepted options pricing model.
The cost of equity-settled transactions is recognized in the statement of income along with the corresponding increase in equity over the period when the terms of performance and/or the service are fulfilled, and ends on the date when the relevant employees become entitled to the compensation (hereinafter: the “Vesting Period”). The cumulative expense which is recognized in respect of equity-settled transactions at the end of each reporting date until the vesting date reflects the rate of passage of the vesting period, and the Group’s best estimate of the number of equity instruments that will eventually vest. The expense or income in the statement of income reflects the change between the expense which accrued until the end of the reporting period, and that which accrued until the end of the previous period.
| F-18 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
When the Company makes changes to the terms of an equity-settled grant, an additional expense is recognized, beyond the original expense which was calculated in respect of the change, which increases the overall fair value of the compensation which is granted or which benefits the employee / other service provider, according to the fair value on the date of the change.
| O. | Loss per share |
The Company calculated the amounts of basic loss per share and diluted loss per share in respect of the loss for the year which is attributable to holders of the Company’s ordinary shares.
Basic loss per share is calculated by dividing the loss attributable to ordinary shareholders of the Company by the weighted average number of ordinary shares that were outstanding during the year.
The weighted average of the number of shares which were used to calculate diluted loss per share is the weighted average of the number of ordinary shares which was calculated for the purpose of basic loss per share, plus the weighted average of the number of ordinary shares which would have been issued as a result of the conversion of all of the dilutive potential ordinary shares into ordinary shares. Dilutive potential ordinary shares are considered as if they had been converted to ordinary shares at the beginning of the period, or beginning on their issuance date, whichever is later. Potential ordinary shares are considered dilutive when their inclusion decreases the earnings per share from continuing operations, or increases the loss per share from continuing operations.
| P. | Operating segments |
Operating segments are reported according to the same basis of internal reports that are regularly reviewed by the Company’s Chief Operating Decision Maker, who is responsible for allocating resource to the Company’s operating segments, and assessing their performance. Until August 2018, the Company was engaged in a single operating segment - investments in portfolio companies in the biomed sector. Since the date of obtaining significant influence over Canndoc Ltd., the Company has two operating segments: 1. Investments in portfolio companies in the biomed sector; 2. Investments in the medical cannabis sector.
| F-19 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| Q. | IFRS 16, Leases |
In January 2016, the IASB published International Financial Reporting Standard 16, Leases (hereinafter: the “New Standard”)
In accordance with the new standard, a lease is defined as a contract, or as part of a contract, when it transfers, in consideration of payment, the right to use the asset for a defined period of time.
Listed below are the new standard’s main effects:
| ● | The new standard requires lessee to recognize all leases as an asset against a liability in the statement of financial position (except for certain cases, see below) similarly to the accounting treatment of a finance lease in accordance with the existing standard IAS 17, Leases. | |
| ● | Lessees will recognize a liability in respect of the lease payments, and will also recognize right-of-use asset. Lessees will also recognize interest expenses and depreciation expenses separately. | |
| ● | Variable lease payments which do not depend on any index or interest rate, and which are based on performance or use (e.g., a percentage of turnover) will be recognized as an expense by the lessees, or as income by the lessors, on the date of their materialization. | |
| ● | In case of a change in the index-linked variable lease payments, the lessee is required to re-assess the lease liability, with the impact of the change being applied to the right-of-use asset. | |
| ● | The new standard includes two exceptions under which lessees may account for leases according to the current accounting treatment in respect of operating leases, in case of leases of assets of low monetary value, or in case of leases for periods of up to one year. | |
| ● | The lessor’s accounting treatment remains with no significant change relative to the current standard, i.e., classification as a finance lease or operating lease. |
As from January 1, 2019 the Company applies the new standard, which replaced International Accounting Standard 17, Leases. The impact of the application on the Company’s financial statements was immaterial.
| F-20 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
Note 3 - Significant Accounting Estimates and Approximations:
In the process of applying the significant accounting policies in the financial statements, the Group exercised discretion and took into account considerations regarding the following matters, which have a significant impact on the amounts which were recognized in the financial statements:
Significant estimates and assumptions
In the preparation of the financial statements, management is required to make use of estimates and assumptions which affect the implementation of the accounting policy and the reported amounts of assets, liabilities, income and expenses, regarding which there is a significant risk of the performance of significant adjustments to the carrying amounts of assets and liabilities during the next fiscal year.
Changes in accounting estimates are applied during the period when the estimate was changed.
Determination of fair value of non-marketable financial assets - investments in companies in the biomed sector
The fair value of non-marketable financial assets classified at level 3 of the fair value hierarchy (investments in stocks and options of portfolio companies in the biomed sector) is determined according to the valuation methods described in Note 10. The estimated fair value of financial instruments which are not listed for trade in an active market includes several assumptions, where any change therein, or the non-materialization thereof, could significantly affect their fair value.
Determination of the fair value of biological assets and net realizable value of inventory
The fair value of biological assets and the cost of inventory on the harvest date is determined based on the overall estimates of management (key assumptions - expected selling price according to the determined arrangements, completion and processing costs, percentage of mature plants), changes in assumptions used to measure fair value may affect the fair value of biological assets or the net realizable value.
Goodwill
For the purpose of determining whether impairment of goodwill has occurred, Company management estimates the value in use of cash-generating units to which goodwill has been allocated. For details regarding the calculation of value in use, see Note 8D. For the year ended December 31, 2020 - The recoverable amount was estimated to be higher than the carrying amount of the unit, and no provision for impairment was required.
| F-21 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
Note 4 - Cash and Cash Equivalents:
| December 31 | ||||||||
| 2020 | 2019 | |||||||
| NIS in thousands | ||||||||
| Cash in the bank and in hand | 37,888 | 27,338 | ||||||
The currencies in which balances of cash and cash equivalents are denominated, or to which they are linked, are:
| December 31 | ||||||||
| 2020 | 2019 | |||||||
| NIS in thousands | ||||||||
| USD | - | 15,879 | ||||||
| NIS | 37,888 | 11,368 | ||||||
| EUR | - | 91 | ||||||
| Total cash and cash equivalents | 37,888 | 27,338 | ||||||
Note 5 - Inventory:
Inventory is comprised of finished goods of dry packaged or rolled medical cannabis and cannabis oil, as well as the outputs of processing procedures, which include, inter alia, agricultural produce which has been transferred from biological assets, where the procedure of processing into finished goods has not yet been completed.
| December 31 | ||||||||
| 2020 | 2019 | |||||||
| NIS in thousands | ||||||||
| Finished goods | 7,640 | 990 | ||||||
| Goods in process and dried inflorescence | 11,409 | 3,655 | ||||||
| Total inventory | 19,049 | 4,645 | ||||||
| F-22 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
Note 6 - Biological Assets:
As stated in Note 2F above, the Company measures biological assets (level 3), which are mostly comprised of medical cannabis plants and agricultural produce, at fair value less selling costs up to the point of harvest. This value serves as the cost basis of inventory after the harvest.
The Company’s biological assets are primarily comprised of medical cannabis seedlings and medical cannabis. Presented below are the changes in biological assets during the reporting period:
| 2020 | 2019 | |||||||
| NIS in thousands | ||||||||
| Balance as of January 1 | 1,145 | - | ||||||
| Commencement of consolidation (Note 8B) | - | 49 | ||||||
| Costs of growing medical cannabis plants | 10,450 | 3,129 | ||||||
| Change in fair value less selling costs | 3,202 | 3,076 | ||||||
| Transfer to inventory | (11,644 | ) | (5,109 | ) | ||||
| Balance as of December 31 | 3,153 | 1,145 | ||||||
Disclosure regarding assumptions which were used to estimate the net fair value of biological assets
| A. | below are the main assumoption used: |
| 31/12/2020 | 31/12/2019 | |||||||
| Net growing area (in thousands of square meters) | 10.5 | 2.5 | ||||||
| Estimate net yield as of the reporting date (tons) (1) | 2.1 | 0.4 | ||||||
| Estimated net selling price (NIS per gram) (2) | 12-19 | 12-19 | ||||||
| Estimated rate of products which will be sold as inflorescence (in percent) (3) | 85 | % | 82 | % | ||||
| Estimated rate of products which will be sold as oil (in percent) (3) | 15 | % | 18 | % | ||||
| Estimated growing cycle length (in weeks) (4) | 13-15 | 13-15 | ||||||
| Estimated growing cycle completion rate (in percent) (5) | 15 | % | 33 | % | ||||
| Proportion of plants which do not reach the harvesting stage | 8 | % | 8 | % | ||||
| (1) | According to the number of seedlings as of the end of the reporting period | |
| (2) | According to the price range of the Company’s existing products as of the end of the reporting period | |
| (3) | The Company’s estimate regarding the future rate of sales | |
| (4) | In accordance with the Company’s experience, and according to the strains which exist as of the reporting date | |
| (5) | By planting date vs. growing cycle length |
| B. | Below is a sensitivity analysis on the fair value of the biological assets (in NIS thousands) in respect of a 10% increase in each of the following variables: |
| 31/12/2020 | 31/12/2019 | |||||||
| Average selling price | 315 | 120 | ||||||
| Proportion of oil products | 27 | 7 | ||||||
| Proportion of plants which do not reach the harvesting | (394 | ) | (143 | ) | ||||
| F-23 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
Note 7 - Investments in Financial Assets Mesured at Fair Value Through Profit or Loss:
As of December 31, 2020 and as of December 31, 2019, the Company holds 3,840,617 shares of XTL Biopharmaceuticals Ltd. (hereinafter: “XTL”), which constitute 0.75% of XTL’s issued and paid-up capital.
As of the end of the reporting period, the Controlling Shareholder holds 24.95% of XTL shares.
The fair value of these shares as of the end of the reporting period was estimated based on the quoted share price (level 1) as XTL is a publically traded company listed in the Tel-Aviv stock exchange, see also Note 12B.
The fair value and changes in securities which were classified “Financial assets mesured at fair value through profit or loss” during the reporting periods was as follows:
| 2020 | 2019 | |||||||
| NIS in thousands | ||||||||
| Balance as of January 1, | 177 | 246 | ||||||
| Changes in fair value carried to the statement of income | 199 | (69 | ) | |||||
| Balance as of December 31, | 376 | 177 | ||||||
Note 8 - Investment in Subsidiaries:
The Company has two active subsidiaries, both in the cannabis sector: Canndoc Ltd., which is wholly owned (100%), and Cannolam Ltd., which is held 50.1%:
| A. | Acquisition of 38% of Canndoc shares |
On September 4, 2018, the Company acquired 38% of the share capital of Canndoc Ltd., a private company which is unrelated to the Company, and which holds an active license from the Ministry of Health for growing medical cannabis and for distributing it to patients in Israel.
| A. | Canndoc Ltd. Was incorporated in March 2010, and is engaged in the field of propagating, growing and marketing medical cannabis products (IMC Medical Grade), as well as conducting studies in the field. | |
| B. | Canndoc Ltd. Holds a license from the Ministry of Health for growing medical cannabis and for distributing it to patients in Israel. The Company has also been certified as fulfilling the Ministry of Health’s regulation process regarding regulation and preparedness for exporting - the IMC-GAP standard, as defined and established by the Medical Cannabis Unit at the Ministry of Health, which was given to the Company, both in respect of the propagation farm, and in respect of the growing farm. |
As stated in Note 13, the financing for the acquisition in accordance with the agreement was provided to the Company by the Controlling Shareholder, who presented the transaction to the Company, and offered the Company to engage in the transaction. In consideration of the financing for the transaction, and subject to its completion, the Company granted to the controlling shareholder options convertible into ordinary Company shares.
| F-24 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
In consideration of the acquired interests, the Company paid a total of NIS 8,216 thousand. The consideration included a total of NIS 7,500 thousand which was paid to the seller in respect of the sold shares, while the rest of the consideration was provided to Canndoc as a shareholder’s loan bearing interest of 2.61%, to finance its operating activities, instead of a shareholder’s loan which the seller provided to Canndoc in the past, see also Note 13B.
Additionally, on the acquisition date the Company provided an additional loan of NIS 500 thousand which bears annual interest at a fixed rate of 5% per year and will be repaid on the earlier of either (1) One year after the date of receipt of the loan; or (2) The completion of a capital raising by the borrower. As of the end of the reporting period, this loan has not yet been repaid.
| B. | Completion of the acquisition of 100% of Canndoc shares: |
On February 11, 2019, the Company completed the acquisition of 100% of Canndoc shares, against an allocation of shares of the Company. In respect of the completion of the acquisition, the Company performed an updated valuation of the investment in Canndoc in its financial statements.
| A. | Presented below is the fair value, as of the acquisition date, of the transferred consideration: |
| NIS in thousands | ||||
| Issuance of 7,931,589 ordinary shares of the Company (A) | 107,632 | |||
| Total transferred consideration | 107,632 | |||
| Fair value of the investment in Canndoc prior to the business combination (B) | 65,968 | |||
| Total | 173,600 | |||
| (A) | The fair value of the ordinary shares which were issued as part of the consideration of the business combination was determined based on the closing price of the Company’s stock on the Tel Aviv Stock Exchange on February 11, 2019. | |
| (B) | The Group recognized a gain in the amount of approximately NIS 58,808 thousand as a result of the fair value measurement of its equity rights, at a rate of 38%, in Canndoc Ltd., which were held before the business combination. The profit was included under other expenses (income), net, in the statement of comprehensive income for the period ended December 31, 2019. |
| B. | Cash flows which arose for the Group as a result of the acquisition: |
| 2019 | ||||
| NIS in thousands | ||||
| Total acquisition cost | 107,632 | |||
| Less - non-cash consideration for Canndoc Ltd. | (107,632 | ) | ||
| Consideration paid in cash | - | |||
| Plus acquired cash and cash equivalents | 385 | |||
| Total | 385 | |||
| F-25 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| C. | Amounts recognized on the acquisition date |
| NIS in thousands | ||||
| Cash and cash equivalents | 385 | |||
| Trade and other receivables | 1,051 | |||
| Inventory and biological assets | 7,723 | |||
| Property, plant and equipment | 1,791 | |||
| Loan | (2,146 | ) | ||
| Trade and other payables | (1,731 | ) | ||
| Short term loan from related parties | (716 | ) | ||
| Deferred tax liability | (723 | ) | ||
| Total identifiable net assets | 5,634 | |||
| D. | Goodwill |
The consideration which was paid in the business combination included amounts associated with the expected benefits from growth in revenue, and future developments in Canndoc’s operating market.
All of the above led to the creation of goodwill in the amount of NIS 167,965 thousand due to the business combination.
Impairment test of goodwill:
The goodwill is allocated to a cash-generating unit - the cannabis segment. As of the end of the reporting period, the Company performed an impairment test of goodwill. The recoverable amount of this cash-generating unit was determined according to the fair value of the Company’s shares as of the end of the reporting period on the Tel Aviv Stock Exchange, less financial assets and the value of the Company’s stake in XTL, Novellus and Regenera (as described in Note 7 and Note 10).
| F-26 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| C. | Acquisition of 50.1% stake in shares of Cannolam: |
On May 14, 2020, the Company’s board of directors approved the engagement in a series of agreements for the acquisition of a 50.1% stake in the shares of Cannolam Ltd.
The Company allocated to some of the shareholders of Cannolam Ltd. (in a private allocation) 1,788,962 shares, which constituted approximately 1.62% of the Company’s issued and paid-up capital (1.41% fully diluted), in consideration of 21.9% of the shares of Cannolam Ltd.
Cannolam Ltd. Will also be given rights to agricultural produce which will be grown in Canndoc’s (current or future facilities, including providing the right to grow on land for which Canndoc has rights of use, or alternative land in which no less than NIS 10,200 thousand has been invested, in consideration of the allocation of 28.2% of Cannolam shares, such that the Company will cumulatively hold 50.1% of Cannolam shares.
The Cannolam acquisition transaction was completed on July 1, 2020, and accordingly, its operating results were consolidated for the first time beginning on that date.
Presented below is the fair value, as of the acquisition date, of the transferred consideration:
| NIS in thousands | ||||
| Issuance of 1,788,962 ordinary shares of the Company (A) | 6,904 | |||
| Rights to agricultural produce | 10,200 | |||
| Shareholder’s loan | (600 | ) | ||
| Non-controlling interests | 15,655 | |||
| 32,159 | ||||
(A) The fair value of the ordinary shares which were issued as part of the consideration of the business combination was determined based on the closing price of the Company’s stock on the Tel Aviv Stock Exchange on July 1, 2020.
B. Net cash flow in the acquisition
| NIS in thousands | ||||
| Consideration paid in cash | - | |||
| Less - acquired cash and cash equivalents | 387 | |||
| Total | 387 | |||
| F-27 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
C. Amounts recognized on the acquisition date in respect of assets and liabilities:
| NIS in thousands | ||||
| Cash and cash equivalents | 387 | |||
| Trade and other receivables | 1,790 | |||
| Rights to agricultural produce | 10,200 | |||
| Inventory | 237 | |||
| Property, plant and equipment and right-of-use asset | 3,204 | |||
| Financial liabilities | (2,462 | ) | ||
| Loan from non-controlling interest | (1,296 | ) | ||
| Lease liability | (2,039 | ) | ||
| Total identifiable net assets | 10,021 | |||
| Goodwill | 22,138 | |||
D. Goodwill
The cost of the business combination embeded payment in respect of the control premium for the acquisition of Cannolam. Additionally, the consideration which was paid in the business combination included amounts associated with the expected benefits from synergy (collaboration), growth in revenue, and future developments in Cannolam’s operating market. These benefits are not recognized separately from goodwill, since the future economic benefits which are expected to arise from them are not reliably measurable. All of the above led to the recognition of goodwill in the amount of NIS 22,138 thousand.
E. Non-controlling interests
The total sum of non-controlling interests in Cannolam Ltd. (49.9%) which was recognized on the acquisition date is NIS 15,655 thousand. The non-controlling interests were estimated based on their fair value.
F. Impact of the acquisition on the Company’s results
Total revenue in the six month period ended December 31, 2020 includes approximately NIS 11,160 thousand which is attributable to Cannolam Ltd.
Additionally, total comprehensive loss for the six month period ended December 31, 2020 includes profit of approximately NIS 2,187 thousand which is attributable to Cannolam Ltd.
Had the acquisition taken place at the begining of the twelve month period ended December 31, 2020, the Group’s total revenue would have amounted to approximately NIS 72,119 thousand, and the Company’s losses would have amounted to approximately NIS 36,218 thousand.
| F-28 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
Note 9 - Property, Plant and Equipment and right of use assets
2020
Computers and office | Right-of- | Machinery
and | Buildings and green- | |||||||||||||||||
| equipment | use asset | equipment | houses * | Total | ||||||||||||||||
| NIS in thousands | ||||||||||||||||||||
| Cost | ||||||||||||||||||||
| Balance as of January 1, 2020 | 426 | 2,957 | 1,677 | 27,932 | 32,992 | |||||||||||||||
| Acquisitions as part of business combination | 276 | 2,039 | - | 889 | 3,204 | |||||||||||||||
| Additions during the year | 202 | - | 1,714 | 19,453 | 21,369 | |||||||||||||||
| Balance as of December 31, 2020 | 904 | 4,996 | 3,391 | 48,274 | 57,565 | |||||||||||||||
| Less accumulated depreciation | ||||||||||||||||||||
| Balance as of January 1, 2020 | 71 | 246 | 138 | 387 | 842 | |||||||||||||||
| Additions during the year | 89 | 623 | 389 | 2,152 | 3,253 | |||||||||||||||
| Balance as of December 31, 2020 | 160 | 869 | 527 | 2,539 | 4,095 | |||||||||||||||
| Property, plant and equipment, net, as of December 31, 2020 | 744 | 4,127 | 2,864 | 45,735 | 53,470 | |||||||||||||||
| F-29 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
2019
| Computers
and office | Right-of- | Machinery
and | Buildings
and green- | |||||||||||||||||
| equipment | use asset | equipment | houses * | Total | ||||||||||||||||
| NIS in thousands | ||||||||||||||||||||
| Cost | ||||||||||||||||||||
| Balance as of January 1, 2019 | 100 | - | - | 100 | ||||||||||||||||
| Changes due to initial consolidation | 58 | - | 547 | 1,186 | 1,791 | |||||||||||||||
| Additions during the year | 268 | 1,130 | 26,746 | 28,144 | ||||||||||||||||
| Right-of-use asset in respect of the initial adoption of IFRS 16 | - | 2,957 | - | - | 2,957 | |||||||||||||||
| Balance as of December 31, 2019 | 426 | 2,957 | 1,677 | 27,932 | 32,992 | |||||||||||||||
| Less accumulated depreciation | ||||||||||||||||||||
| Balance as of January 1, 2019 | 14 | - | - | - | 14 | |||||||||||||||
| Additions during the year | 57 | 246 | 138 | 387 | 828 | |||||||||||||||
| Balance as of December 31, 2019 | 71 | 246 | 138 | 387 | 842 | |||||||||||||||
| Property, plant and equipment, net, as of December 31, 2019 | 355 | 2,711 | 1,539 | 27,545 | 32,150 | |||||||||||||||
* Including property under construction. As of December 31, 2019, the Company has property under construction in the amount of NIS 15,000 thousand. AS of December 31, 2020, all of the property is operational.
Note 10 - Investment in Assets Measured at Fair Value through Profit or Loss:
The Company’s investments in biomed companies are revalued at fair value through profit and loss. The fair value is determined according to valuations, which are mostly performed using the OPM method.
| December 31 | ||||||||
| 2020 | 2019 | |||||||
| NIS in thousands | ||||||||
| Fair value of the investment in Regenera (1) (A) | - | 39,910 | ||||||
| Fair value of the investment in Novellus (B) | 3,141 | - | ||||||
| 3,141 | 39,910 | |||||||
(1) For additional details see Note 24, subsequent events.
| F-30 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
A. Regenera Pharma Ltd (“Regenera”) –
A.1 Contractual agreement with Regenera Ltd.
In 2015, the Company signed an investment agreement with Regenera Pharma Ltd. (hereinafter: “Regenera”), an Israeli private company in the biomed sector, which is engaged in the research and development of innovative treatment methods for tissue restoration in the human body, according to which the Company will invest in Regenera a total of approximately USD 2.5 million, of which USD 1.25 million on the signing date of the agreement, and an additional USD 1.25 million will be transferred once confirmation has been received regarding the achievement of the milestone.
In accordance with the completion of the milestone, in 2016, the Company transferred the second part of the investment.
In March 2018, Regenera recruited its first patient to begin the Phase A2 trial on Alzheimer’s patients in Canada. The trial is expected to be conducted on 45-80 patients suffering from middle-stage Alzheimer’s disease. The trial was conducted in five medical centers in Canada, and concluded in November 2019.
A.2 Increase of the Company’s stake in Regenera in consideration of a private allocation to Bamot Ltd.
In 2016, the Company acquired ordinary shares of Regenera from Bamot Investments, Initiation and Energy (1996) Ltd. (hereinafter: “Bamot”), in exchange for which the Company allocated shares and options to Bamot.
On September 1, 2019, Bamot exercised all of its options at an exercise price of NIS 1 per share, in consideration of 1,000,000 shares.
A.4 Loan convertible into shares
In 2016 Regenera engaged in a convertible, interest-bearing loan agreement with the Company and Angels High Tech Investments Ltd. (the “2016 Loan Agreement”). In the first stage, the Company and Angels lent, in accordance with the 2016 loan agreement, a total of USD 350 thousand each.
In 2017 the Company invested an additional total of USD 650 thousand in Regenera, in accordance with the 2016 loan agreement, such that the total amount of the loan in accordance with the agreement amounted to a total of USD 1 million.
In February 2018 the loan was converted to Series B preferred shares of Regenera. In 2018 the Company invested an additional total of approximately USD 350 thousand, in exchange for preferred shares.
A.5 Sale of shares
On May 22, 2019, the Company completed the sale of 105,833 Series A preferred shares of Regenera, which constitute approximately 1.35% of the issued and paid-up capital of Regenera (undiluted), for a total cash consideration of USD 1.27 million, reflecting a price per share of approximately USD 12.
| F-31 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
A.6 Value of the Company’s holding in Regenera:
The preferred shares and derivative instruments are presented in the balance sheet under the item for the investment in Regenera - financial assets measured at fair value through profit or loss and classified at level 3, as described in Note 12B.
Presented below is the value of the financial instruments:
As of December 31 | ||||||||
2020 | 2019 | |||||||
NIS in thousands | ||||||||
| Ordinary shares | - | 8,063 | ||||||
| Series A preferred shares | - | 16,644 | ||||||
| Series B preferred shares | - | 2,509 | ||||||
| Series B-1 preferred shares | - | 8,789 | ||||||
| Options for series B-2 preferred shares | - | 3,905 | ||||||
| Total | - | 39,910 | ||||||
Parameters used to calculate the fair value of preferred shares
In accordance with the valuation of the investment, the fair value of series A preferred shares was estimated according to the options pricing model (OPM). In this method, the investment in each series of shares is likened to a call option, where the rights of the share series with priority for that investment represents an exercise price.
Parameters used to calculate the fair value of share types:
| Underlying asset - | The underlying asset is the value of all of the Company’s equity instruments, as assessed according to the OPM model. | ||
| Exercise price - | The exercise price of each share layer is that layer’s superior liquidation rights. | ||
| Expected life - | The estimated duration until the occurrence of an event involving a merger or acquisition of the Company. In accordance with the assessments of Company management, the lifetime was estimated at two years. | ||
| Risk-free interest rate - | Calculated based on the yield to maturity of US government bonds with an average lifetime which is approximately equal to the contractual lifetime until the liquidation event. The risk-free interest rate which was used in the calculation was 1.58%. | ||
| Standard deviation - | Based on the average standard deviation of five public companies which are similar to the Company, in terms of their characteristics and operations. The determined standard deviation was 57.28%. |
| F-32 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
A.9. Stake and value of investment in Regenera:
On April 30, 2020, the Company’s board of directors discussed a notice which was received from Regenera, in which it was stated that in light of weak clinical results from an optic nerve trial, and an adjustment to the trial protocol, Regenera intends to raise a total of approximately USD 3 million, according to a value which is significantly lower than the valuation as of December 31, 2019, as part of a private allocation including rights.
The Company chose not to participate in the rights issue, and accordingly, on May 18, 2020, the Company was informed that Regenera had completed the raising through a private allocation to some of the current shareholders, whereby in Stage A the investors provided a total of approximately USD 1.3 million, and subject to the achievement of milestones, the investors will provide an additional total of approximately USD 2 million (hereinafter: the “Additional Raising Rounds”). The milestones are linked to the adjustment of the outline of the optic nerve clinical trial, and include, inter alia, receipt of FDA approval for the updated trial outline, and reaching “first patient in” status.
As a result the completion of the raising, the Company’s stake in Regenera was diluted from 11.76% to 9.33%. Subject to the completion of the remaining capital raising rounds, the Company’s stake will be diluted to a rate of 7.85%.
On September 29, 2020, the Company was informed that Regenera’s board of directors had resolved to discontinue Regenera’s activity. In light of the information which the Company received, the Company wrote off the value of its stake in Regenera.
B. NovellusDX Ltd. (“Novellus”)
B.1. Contractual agreement with NovellusDX Ltd.
In 2015 the Company signed an investment agreement together with the Pontifax Venture Capital and additional investors, for an investment of approximately USD 10 million in NovellusDX Ltd . (hereinafter: the “Agreement” and “Novellus”), a Israeli private company.
Novellus is developing an innovative technology which is intended to significantly improve the results of treatment of patients suffering from various types of cancer, using designated biological drugs (hereinafter: the “Product”).
Under the agreement, the Company will invest a total of USD 2.5 million (hereinafter: the “Investment Amount”), of which USD 1.25 million was invested on the initial closing date (as defined in the agreement), and an additional USD 1.25 million will be invested after the achievement of the milestone, as defined in the agreement between the parties. In consideration of the Company’s total investment, 390,930 Series B preferred shares and 312,734 options to acquire Series B1 preferred shares, at an exercise price of USD 7.994 per exercise share, were allocated to the Company.
| F-33 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
B.2. Successful achievement of milestone
Novellus achieved the milestone in 2016, and accordingly, the Company transferred the second payment in accordance with the agreement, in the amount of USD 1.25 million, in consideration of the allocation of 195,465 Series B preferred shares and 156,367 additional options.
B.3. Stake:
As of December 31, 2020, the Company’s stake in Novellus is approximately 8.88% of capital, undiluted (assuming conversion to ordinary shares), and approximately 7.24%, fully diluted.
B.4. Value of the Company’s holding in Novellus:
In September 2020, a capital raising round of approximately USD 56 million was completed. The Company undertook to provide a total of approximately USD 500 thousand, in three milestones. As of the date of the financial statements, the Company has invested a total of approximately NIS 181 thousand.
Following the raising, the Company’s stake in Novellus is 0.72%.
The total value of the Company’s holdings, including revaluation of its previous stake, amounts to NIS 3,141 thousand.
Note 11 - Receivables and Payables
A. Trade receivables:
| December 31 | ||||||||
| 2020 | 2019 | |||||||
| NIS in thousands | ||||||||
| Open accounts | 9,602 | 1,571 | ||||||
| Credit cards receivable | 3,414 | 16 | ||||||
| Provision for doubtful debts | (550 | ) | - | |||||
| 12,466 | 1,587 | |||||||
| F-34 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
B. Other receivables:
| December 31 | ||||||||
| 2020 | 2019 | |||||||
| NIS in thousands | ||||||||
| Institutions | 710 | 3,093 | ||||||
| Prepaid expenses | 452 | 1,995 | ||||||
| Prepayments to suppliers | 337 | 302 | ||||||
| Loan to non-related parties | 1,643 | - | ||||||
| Others | 538 | 1,926 | ||||||
| 3,680 | 7,316 | |||||||
C. Other payables:
| December 31 | ||||||||
| 2020 | 2019 | |||||||
| NIS in thousands | ||||||||
| Accrued expenses | 3,429 | 1,938 | ||||||
| Institutions | 1,309 | 794 | ||||||
| Deferred revenues | 1,166 | - | ||||||
| Others | 2,801 | 1,120 | ||||||
| 8,705 | 3,852 | |||||||
| F-35 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
Note 12 - Financial Instruments and Management of Financial Risks:
A. Financial risk factors
The Company’s activity exposes it to various financial risks, such as market risks (foreign currency risk, interest rate risk and price risk), credit risk and liquidity risk. The Company’s overall risk management plan focuses on activities to minimize possible negative effects on the Company’s financial performance.
1) Market risks:
A. Foreign currency risk
The carrying amounts of the Group’s financial assets and liabilities which are denominated in foreign currency are as follows:
| Assets | Liabilities | |||||||||||||||
| As of December 31 | As of December 31 | |||||||||||||||
| 2020 | 2019 | 2020 | 2019 | |||||||||||||
| NIS in thousands | NIS in thousands | NIS in thousands | NIS in thousands | |||||||||||||
| Cash - USD | - | 15,879 | - | - | ||||||||||||
| Cash - EUR | - | 91 | - | - | ||||||||||||
| Investment in Regenera - USD | - | 39,910 | - | - | ||||||||||||
| Investment in Novellus - USD | 3,141 | - | - | - | ||||||||||||
| Loan from controlling shareholder - USD | - | - | - | 4,320 | ||||||||||||
B. Price risk
The Company has investments in marketable shares listed on the Stock Exchange, which are classified as financial assets in respect of which the Group is exposed to risk due to volatility in the security’s price, which is determined based on market prices on the Stock Exchange. The balance of these investments in the financial statements as of December 31, 2020 is NIS 376 thousand.
2) Credit risk
Cash and cash equivalents:
Credit risk arises in respect of cash and cash equivalents. The Company engaged with banking corporations which have been given minimum independent ratings of AA.
Customer debt:
The terms of customer credit are up to end of month + 90 days. The Company’s exposure to credit risk is influenced mainly by the individual characteristics of each customer. The Company evaluates provisions for doubtful debts on a case by case basis. The Company has a factoring agreement in respect of customer debt with a leading bank in Israel. In accordance with the agreement and as of the reporting date, the Company assigned, through absolute assignment by way of sale, customer debt in the amount of approximately NIS 14 million.
| F-36 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| 3) | Liquidity risk: |
The Company evaluates the risk of cash shortage using monthly budgets. The following table presents the repayment periods of the Group’s financial liabilities, in accordance with their contractual terms, by undiscounted amounts (including payments in respect of interest):
As of December 31, 2020:
| Up
to one year | One
year or more | Total | ||||||||||
| NIS in thousands | ||||||||||||
| Credit from banking corporations | 355 | 388 | 743 | |||||||||
| Trade payables and other payables | 27,329 | - | 27,329 | |||||||||
| Lease liability (1) | 899 | 3,500 | 4,399 | |||||||||
| Short term loan from related party (Note 13B) | 166 | 241 | 407 | |||||||||
| 28,749 | 4,129 | 32,878 | ||||||||||
As of December 31, 2019:
| Up
to one year | One
year or more | Total | ||||||||||
| NIS in thousands | ||||||||||||
| Credit from banking corporations | 33 | 43 | 76 | |||||||||
| Trade payables and other payables | 8,787 | - | 8,787 | |||||||||
| Lease liability (1) | 546 | 2,223 | 2,769 | |||||||||
| Short term loan from related party (Note 13) | 14,206 | - | 14,206 | |||||||||
| 23,572 | 2,266 | 25,838 | ||||||||||
| (1) | The Company has lease agreements in respect of the Company’s offices in Herzliya and the Givol pharmacy in Tel Aviv. The lease agreements are in effect until March 2025 and February 2029 (respectively). |
| B. | Disclosure of fair value | |
| The following table presents the Company’s financial assets and financial liabilities which are measured at fair value as of December 31, 2020: |
| Level 1 | Level 2 | Level 3 | Total | |||||||||||||
| NIS in thousands | ||||||||||||||||
| Assets: | ||||||||||||||||
| Financial assets measured at fair value through profit or loss: | ||||||||||||||||
| Investments in investees | - | - | 3,141 | 3,141 | ||||||||||||
| Investment in XTL stocks | 376 | - | - | 376 | ||||||||||||
| Total assets | 376 | - | 3,141 | 3,517 | ||||||||||||
| F-37 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
The following table presents the Company’s financial assets and financial liabilities which are measured at fair value as of December 31, 2019:
| Level 1 | Level 2 | Level 3 | Total | |||||||||||||
| NIS in thousands | ||||||||||||||||
| Assets: | ||||||||||||||||
| Financial assets measured at fair value through profit or loss: | ||||||||||||||||
| Investments in investees | - | - | 39,910 | 39,910 | ||||||||||||
| Investment in XTL stocks | 177 | - | - | 177 | ||||||||||||
| Total assets | 177 | - | 39,910 | 40,087 | ||||||||||||
Financial assets
The Company has investments in investees measured at fair value through profit or loss. The fair value of the investments in these investees as of December 31, 2020 amounted to a total of NIS 3,141 thousand, in accordance with a valuation which was received from an external valuer (level 3). For additional information see Note 10 above.
For details regarding the fair value of the investment in XTL shares, see Note 7 above.
Changes in financial instruments whose fair value measurement was classified at level 3:
| Financial assets measured at fair value through profit or loss in | ||||||||
| 2020 | 2019 | |||||||
| NIS in thousands | ||||||||
| Opening balance | 39,910 | 23,376 | ||||||
| Investment (sale) of assets measured at fair value through profit or loss | 626 | (4,532 | ) | |||||
| Profit (loss) which was recognized in the statement of income | (37,395 | ) | 21,066 | |||||
| Closing balance | 3,141 | 39,910 | ||||||
| C. | Sensitivity analysis to changes in market factors: | |
| The following table specifies the sensitivity to an increase or decrease of 1.5% in the relevant exchange rate. This metric represents the estimate of management regarding reasonably possible changes to the exchange rate. The sensitivity analysis includes current balances of monetary items denominated in foreign currency, and adjusts the translation thereof at the end of the period to a change of 1.5% in foreign currency rates. |
| Impact of the USD | Impact of the EUR | |||||||
| As of December 31 | As of December 31 | |||||||
| 2020 | 2020 | |||||||
| NIS in thousands | NIS in thousands | |||||||
| Profit or loss | 143 | - | ||||||
| F-38 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
Sensitivity tests and main assumptions
The selected changes to the relevant risk variables, as presented in Note 10, were determined in accordance with the estimates of management regarding reasonably possible changes to those risk variables.
The Company performed sensitivity tests to main market risk factors which could affect the reported operating results or financial position. The sensitivity tests present profit or loss and/or the change in capital (before tax) for each financial instrument in respect of the relevant risk variable which was chosen for it, as of each reporting date. The evaluation of risk factors was performed based on the significance of the exposure of the operating results or financial position in respect of each risk factor, with reference to the functional currency, and assuming that all other variables remain unchanged.
The risk tests in respect of marketable investments for which quoted market prices (stock exchange prices) are available were based on possible changes in those market prices.
Note 13 - Transactions with Related Parties:
| A. | Loans from controlling shareholder |
On December 23, 2015, the Company entered into an agreement with Mr. Alexander Rabinovitch, the Company’s controlling shareholder, under which Mr. Rabinovitch undertook to provide to the Company, independently or through a company under his control, a total amount of USD 1.25 million, as a loan or guarantee, according to the Company’s exclusive discretion. The aforementioned loan / guarantee will be available to the Company for 12 months, i.e., from December 22, 2015 to December 22, 2016 (hereinafter: the “Repayment Date”), unless the parties have agreed to defer the repayment date of the loan / guarantee (hereinafter: the “Line Of Credit”).
As part of the foregoing engagement, the Company undertook that in case it has not repaid the line of credit by the foregoing repayment date, the line of credit will be converted by way of an allocation of ordinary Company shares with no par value, as part of a rights issuance to Company shareholders, which will be performed by the Company within 6 months after the repayment date. In case the foregoing rights issuance is not executed, for any reason whatsoever, the Company will be obligated to repay the line of credit on a date which will be agreed upon between the parties. The foregoing line of credit was given under eligible transaction conditions - i.e., the amount of the loan / guarantee will not accrue interest or linkage differentials.
At the Company’s request, on March 6, 2016 Mr. Rabinovitch provided a loan to the Company in the amount of USD 750 thousand (hereinafter: the “Loan”). The loan amount was used by the Company to perform the second part of the investment in Regenera.
On December 25, 2016, the Company signed an agreement with the controlling shareholder, according to which the line of credit and the loan, which were due to expire on December 22, 2016, would be extended until December 22, 2017. In November 2017, the Company signed an agreement with the controlling shareholder regarding an additional extension until December 22, 2018.
| F-39 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
On January 16, 2017, the Company reported that it had withdrawn an additional USD 250 thousand from the line of credit, such that the total amount of the loan from the controlling shareholder will amount to USD 1 million, and the remaining line of credit will amount to USD 250 thousand.
The fair value of the loan was estimated based on the expected cash flows in respect of the loan, discounted by the interest rate which the Company would have been required to pay on a similar loan under market conditions, as estimated by an independent external valuer.
The loan was initially recognized on December 23, 2015, at a fair value of USD 649 thousand (according to a discount rate of 20%), and in the discussion regarding the extension of the loan repayment date, December 22, 2016, the loan was recorded in the amount of USD 619 thousand (according to a discount rate of 21.11%), where the difference between these values and the loan amount was carried to the capital reserve for transactions with the controlling shareholder.
On January 16, 2017, an additional loan in the amount of USD 250 thousand was provided, which was recorded in its financial statements in accordance with its fair value of USD 211 thousand (according to a discount rate of 20.1%). On the loan extension date, December 22, 2017, the loan in the amount of USD 1 million was recorded in accordance with its fair value in the amount of USD 828 thousand (according to a discount rate of 18.9%). The difference between these values and the loan amount was carried to the capital reserve for transactions with the controlling shareholder.
In December 2018, it was agreed with the controlling shareholder that the repayment date will be March 31, 2019.
During the year, it was decided to extend the repayment date until no later than December 31, 2019. On the extension date, the Company recognized a capital reserve in the amount of NIS 598 thousand, in respect of the interest benefit. During the period, NIS 386 thousand was recorded in the Company’s financial statements as finance expenses in respect of this loan.
On June 24, 2018, the Company reported an agreement for the acquisition of Canndoc shares. The acquisition was financed by the provision of a credit facility, which was provided to the Company by the Company’s controlling shareholder. The consideration in the amount of NIS 9,000 thousand which was given to the Company was in respect of a loan with a fair value of NIS 7,786 thousand and a total of NIS 1,214 thousand in respect of 8,570,000 options.
The par value of the loan bears annual interest in NIS, calculated annually, according to the minimum interest rate prescribed in section 3J of the Israeli Income Tax Ordinance (2.61% in 2018). The loan principal, plus the loan interest, will be paid within one year after the date when the loan was provided to the Company in practice, unless the parties have agreed otherwise (the “Loan Period”). The Company will be entitled to execute a prepayment of the balance of the loan during the loan period.
On April 30, 2020 an extension was approved for the two controlling shareholder loans until July 2020, and on June 30, 2020, an (additional) extension was approved until October 2020.
The shareholder’s loans were fully repaid on October 22, 2020.
| F-40 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| B. | Loans from related party |
Following the acquisition of subsidiary, net of cash, and the appointment of Mr. Avner Barak as a director in the Company, a loan of Mr. Avner Barak to Canndoc in the amount of NIS 718 thousand was recorded in the Company’s financial statements. The loan principal bears annual interest in NIS, calculated annually, according to the minimum interest rate prescribed in section 3J of the Israeli Income Tax Ordinance (2.62% in 2020). The loan will be repaid in equal monthly installments (principal and interest) in the amount of NIS 15 thousand, until the final repayment in May 2023. The Group recognized a capital reserve in the amount of NIS 17 thousand in respect of the interest benefit. During the year, interest expenses were recorded in the Company’s financial statements in the amount of NIS 21 thousand in respect of this loan. The balance of the loan as of December 31, 2020 is NIS 407 thousand.
| C. | Sublease agreement with companies related to the related party |
The subsidiary Canndoc leases an office floor, and subleases to three related companies of the controlling shareholder.
Revenue of NIS 263 thousand was recorded in the financial statements.
Note 14 - Options for the Acquisition of Company Shares:
On June 23, 2019, 2,125,000 options (Series 3), which had been issued in 2017, were exercised into ordinary Company shares, in consideration of an exercise price in the amount of NIS 3,883 thousand.
Note 15 - Taxes on Income:
| A. | Tax rates applicable to the Company |
The corporate tax rate has been 23% since 2018.
| B. | Tax assessments |
In accordance with the agreement with the tax authorities, the Company has tax assessments that are considered as final up to and including the tax year 2015. The subsidiaries have not yet been assessed since their establishment date.
| C. | Carryforward tax losses and other temporary differences |
The Company has business losses and capital losses for tax purposes which are carried forward to future years and which amount, as of December 31, 2020, to a total of approximately NIS 84,149 thousand.
| D. | Deferred taxes |
The Company recorded deferred tax in the amount of NIS 2,904 thousand in respect of the balance of carryforward loss and temporary differences in Canndoc.
| F-41 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| E. | Current taxes |
The Company recorded a provision for current taxes in the amount of NIS 635 thousand in respect of Cannolam.
| F. | Taxes on income which are included in the statements of loss and comprehensive Loss |
For the year ended December 31
| 2020 | 2019 | |||||||
| NIS in thousands | NIS in thousands | |||||||
| Current tax expense | 636 | - | ||||||
| Deferred tax income | (2,904 | ) | (673 | ) | ||||
| Total tax benefit | (2,268 | ) | (673 | ) | ||||
| G. | A reconciliation between the theoretical tax on earnings before income and tax expenses |
For the year ended December 31
| 2020 | 2019 | 2018 | ||||||||||
| NIS in thousands | ||||||||||||
| Loss before taxes on income | 38,308 | 6,566 | 12,798 | |||||||||
| tax rate | 23 | % | 23 | % | 23 | % | ||||||
| Total tax benefit at applicable tax rate | (8,811 | ) | (1,510 | ) | (2,944 | ) | ||||||
| Non deductible losses (gains) on financial assets | 8,555 | (18,390 | ) | 326 | ||||||||
| Non deductible Share-based payment | 2,302 | 15,648 | 1,801 | |||||||||
| Tax losses for which deferred taxes were not created | 217 | 4,906 | 804 | |||||||||
| Other permanent differences | 5 | 19 | 13 | |||||||||
| Income tax benefit | 2,268 | 673 | - | |||||||||
Note 16 - Commitments, Charges and Contingent Liabilities
| A. | Investment in Regenera Ltd. |
See Note 10A above.
| B. | Investment in Novellus Ltd. |
See Note 10B above.
| C. | Loan from the Company’s controlling shareholder |
See Note 13 above.
| D. | Contingent liabilities |
On November 3, 2016, a motion to approve a class action was filed with the District Court of Tel Aviv-Yafo, against Canndoc and the other seven holders of the active license in accordance with the old arrangement regarding growing medical cannabis (the “Growers”) (the “Motion”). The class, in accordance with the motion, was defined as “all of the respondents’ customers (present or past) which purchased from the respondents medical cannabis during the seven years preceding the filing date of the claim, until the approval date (the “Class”). The main assertions in the motion pertain to the following three matters: The growers used chemical pesticide materials in the cannabis growing process, in breach of the Crop Protection Regulations (Compliance with Packaging Label Provisions), 5737-1977 (the “Packaging Label Regulations”) and the Public Health Regulations (Food) (Pesticide Residues), 5751-1991 (the “Pesticide Residues and Food Regulations”). The marketed concentrations of active cannabis materials were lower than those which were published by the growers, and the growers therefore misled their customers, and breached the Consumer Protection Law. The remedies which are requested in the motion include: Compensation of the class members for the entire compensation amount demanded in the motion - a total of NIS 133 million. Ordering the respondents to immediately cure the deficiencies and omissions in the cannabis growing method. Following preliminary hearings, on January 21, 2021, the Court decided to reject the motion to approve the class action.
| F-42 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
On August 19, 2019, a motion was filed with the District Court of Tel Aviv-Yafo against 17 companies which are engaged in the medical cannabis production and growing segment, or which hold plants for the production of cannabis products, including Canndoc, to approve a claim as a class action (the “Motion”), asserting the provision of drugs to patients in poor condition (as alleged in the motion), in a manner which constitutes prohibited discrimination, as stated in the Equal Rights for Persons with Disabilities Law, 5758-1998, as well as activities within the framework of a restrictive arrangement, in a manner which breaches the provisions of the Economic Competition Law, 5748-1988 due to the allegedly defective marking of the product components, while restricting the quantity and/or quality and/or type of the provided services. The claimed sum amounts to NIS 686 million. A preliminary hearing regarding the motion is scheduled for July 1, 2021. As of the reporting date, the Company is unable to estimate the eventual chances of the claim, insofar as the motion to approve is approved as a class action. In light of the above, a provision in respect of the motion was not included in the Company’s financial statements.
On May 25, 2020, a motion was filed with the District Court of Tel Aviv-Yafo to approve a class action against the Company and its directors and officers, in which the petitioner’s main assertion is that the Company allegedly breached its obligation to report to the public, by the required date and in the required scope of the disclosure (as alleged), events and developments which affected the value of Regenera. The Company rejects the assertions in the motion, and emphasizes that its reports are submitted in accordance with the law. In October 2020 the Company filed a response to the motion in accordance with the provisions of the law. In January 2021, a preliminary hearing regarding the motion was held in court, and on March 8, 2021, the Court decided to appoint an export to determine the class and the damage. In consideration of the very preliminary stage of the proceedings, it is not currently possible to estimate the chances of the motion to approve. In light of the above, a provision in respect of the motion was not included in the Company’s financial statements.
On December 8, 2020, a third party with whom Canndoc is engaged in a medical cannabis growing agreement (hereinafter: the “Plaintiff” and the “Agreement”, respectively) filed with the Magistrate’s Court of Kfar Sabba a summary procedure claim in the amount of NIS 2,271,310, in which it was alleged that Canndoc had breached the agreement, with the main assertion being that Canndoc had not paid for the agricultural produce which the plaintiff had grown on its behalf. On January 25, 2021, Canndoc filed a motion for leave to defend against the claim, in which it rejected the assertions and emphasized that it had not breached the agreement, and that, inter alia, the agricultural produce did not meet the Company’s requirements, as determined in the agreement. The Court set a date for the hearing regarding the motion for leave to defend on July 1, 2021. In light of the preliminary stage of the proceedings, it is not possible to estimate the claim’s chances at this stage.
| E. | Engagements |
| 1. | Canndoc has an advanced propagation and growing facility which is located in Kibbutz Beit HaEmek, in which it develops and grows a wide variety of unique strains of medical cannabis (hereinafter: the “Northern Facility”). As of the reporting date, the northern facility is spread over an area of approximately 5 dunams, whereby Canndoc has the right of first refusal regarding an option to expand the area of the northern facility to a total area of approximately 16 dunams. The northern facility includes a greenhouse for propagating, growing and florescence, as well as a processing facility and operational areas. During the reporting period, Canndoc performed extension, upgrade and adjustment works on the northern facility, for the purpose of ensuring the northern facility’s compliance with the high quality standards required to export from Israel, and adjusting the quality of the products to the level required in Israel and in the target countries. The performance of the upgrade works was concluded in the fourth quarter of 2019; On May 21, 2020, an addendum to the agreement was signed, which formalized, inter alia, the investment in the Company’s facility in Beit HaEmek. As of the publication date of the report, the suspensory conditions for the fulfillment of the agreement have not yet been met. |
| F-43 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| 2. | On April 23, 2019, Canndoc signed a binding agreement with an Israeli corporation which holds agricultural areas in Kibbutz Nir Oz, in the Western Negev, for the construction of a production complex with maximum production potential of up to 88 tons of medical cannabis per year, which will operate in addition to the northern facility (hereinafter: the “Southern Site”). During the reporting year, the Company completed the investment in the construction of facilities for the purpose of growing and production of inventory. |
| F. | Significant Transactions and Events During the Reporting Period |
| 1. | Acquisition of 50.1% stake in shares of Cannolam Ltd. |
On May 14, 2020, the Company’s board of directors approved the engagement in a series of agreements for the acquisition of a 50.1% stake in the shares of Cannolam Ltd., an Israeli private company, which holds, independently and/or through its owned subsidiaries, the exclusive rights to the production, importing, distribution and use of leading international cannabis and lifestyle trademarks in Israeli territory. Inter alia, Cannolam Ltd. has exclusive rights in respect of the brands Cookies, Mr. Nice and Oxon Pharma.
For additional information, see Note 8.
| 2. | Production |
| On May 26, 2020, Canndoc announced the receipt of a license from the Medical Cannabis Unit at the Ministry of Health (the “Medical Cannabis Unit”), for the engagement in and holding of a dangerous drug, in accordance with sections 6 and 7 of the Dangerous Drugs Ordinance (New Version), 5733-1973, for the propagation and growing of cannabis plants, and the processing of inflorescence and plants under IMC-GAP quality conditions, in Canndoc’s growing facility in Southern Israel (hereinafter: the “Southern Site”), in a commercial scope of approximately 24,500 plants in parallel, as set forth in the growing license (hereinafter: the “Growing License”). In accordance with the standard practice, the license is conditional on completing the construction of a post-harvest processing facility, and receipt of full IMC-GAP certification, no later than August 31, 2020. On August 30, an administrative extension was received until November 30, 2020. On November 25, 2020, an additional administrative extension was received until January 15, 2021. On December 24, 2020, Canndoc announced that it had received a permanent license from the Medical Cannabis Unit. As of the approval date of the financial statements, Canndoc has begun commercial growing in the southern facility. |
| F-44 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| 3. | Coronavirus pandemic |
During the first quarter of 2020, the coronavirus (COVID-19) pandemic began to spread in Israel and around the world.
As of the date of this report, Canndoc has not experienced and/or is not experiencing any change in the trend of demand for its medical cannabis products, and is continuing to manage its business and sell its products in an orderly and continuous basis.
Canndoc is entitled to continue its activity provided that it reduces the number of employees to the minimum required to ensure essential operations.
Company management has been evaluating, throughout the entire period, the financial implications of the crisis on the Company.
Canndoc has prepared an inventory of raw materials required to ensure routine operating activities in the growing facility, planning a decentralized workforce, and preparing workforce reserves in case of the infection of one of its employees, as well as a remote access network for employees. Additionally, the Company’s support center is continuing to provide continuous support to patients, including complete and strict implementation of the Ministry of Health’s requirements regarding work methods and operating space.
Company management believes that it has the financial stability required to deal with the coronavirus crisis and its short-term and medium-term consequences (if any), inter alia, based on the continuation of the Company’s operating activities, and the completion of the private allocations which were performed during the reporting period.
On April 27, 2020 and April 30, 2020, the Company’s audit committee and board of directors approved an update to the directors’ fees to the minimum amount specified in the Companies Regulations (Rules Regarding Compensation and Expenses of External Director), 5760-2000 (hereinafter: the “Compensation Regulations”), as part of the Company’s efforts to deal with the coronavirus pandemic and to reduce the Company’s operating expenses. On November 26 and 30, 2020, the Company’s compensation committee, audit committee and board of directors (respectively) approved a resolution to restore the directors’ fees to the fixed amount specified in the Compensation Regulations.
| 4. | Private allocations |
In June 2020, the Company’s audit committee and board of directors approved an allocation of Company shares, in a private allocation of shares and options, to seven institutional investors, to one additional investor, Yael Feigel, a related party, and to the Company’s controlling shareholder or to a company under his control, which will invest in the Company a total of approximately NIS 38.2 million, in consideration of the allocation of 9,257,820 ordinary shares and 8,332,038 options exercisable into 8,332,038 shares.
The allocation was approved by the general meeting on July 30, 2020, and the Company allocated the shares on August 4, 2020.
| F-45 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| 5. | Options plan |
On August 31, 2020, the Company’s board of directors authorized management to take action to offer a total of up to 4,303,356 options to an officer (the Company’s CFO) and to Canndoc employees, which constitute 3.6% of the Company’s shares (as of the approval date of the financial statements), as part of an outline for offering securities to employees (hereinafter: the “Outline”). Each of the options will be exercisable into one ordinary Company share with no par value, for a period of up to 10 years, at an exercise price of NIS 4.13 per share. On January 26, 2021, the Company’s board of directors approved, subject to the publication and approval of the outline, the allocation of 4,045,634 options to the officer and to 26 Canndoc employees. The outline was completed, and the options were allocated, on March 15.
Note 17 – Equity:
| A. | Composition of share capital: |
| December 31 | December 31 | |||||||||||||||
| 2020 | 2019 | 2020 | 2019 | |||||||||||||
| Registered | Issued and paid-up | |||||||||||||||
| Ordinary shares with no par value | 200,000,000 | 200,000,000 | 119,870,650 | 108,481,848 | ||||||||||||
| B. | On September 27, 2016, the Company completed a transaction in which the Company acquired from Bamot 240,203 ordinary shares with a par value of NIS 0.01 each (hereinafter: the “Acquired Shares”) of Regenera. In consideration of the acquired shares, the Company allocated to Bamot 5,500,000 shares and 1,000,000 marketable options (new series), at an exercise price of NIS 1 per share, over three years beginning from the signing date of the agreement (for details, see Note 10A and Note 17G). |
| C. | On November 9, 2016, the Company reported the signing of two investment agreements in the total amount of NIS 6,750 thousand (approximately USD 1,750 thousand), in consideration of an allocation of 12,053,571 ordinary Company shares (hereinafter: the “Offered Shares”), at a price of NIS 0.56 per share. |
One investment agreement was signed vis-à-vis the controlling shareholder, in accordance with the meeting’s approval on November 3, 2016, as specified above, and an additional investment agreement was signed vis-à-vis Altshuler Shaham Mutual Fund Management Ltd. (hereinafter: “Altschuler Funds”), regarding an investment, in identical conditions, of NIS 3,900,000 (USD 1,008 thousand), in consideration of the allocation of 6,964,286 ordinary Company shares, with no par value, at a price of NIS 0.56 per share.
In case, during the 12 month period after the transaction closing date, the Company performs a capital raising, including through a private allocation, at a price per share which will be lower than a price per share of NIS 0.56, Altschuler and the controlling shareholder will be entitled to receive compensation in shares, in a quantity which will be determined according to the difference between a price of NIS 0.56 per share, and the share price in the future capital raising.
In any case, no shares whatsoever will be allocated at a price less than NIS 0.3 per share.
| F-46 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
On November 17, 2016, the Stock Exchange notified the Company of the receipt of approval for the allocation of the aforementioned shares, and on November 21, 2016 the Company announced the closing of the aforementioned transactions, and receipt of the entire consideration from the controlling shareholder and from Altschuler Funds.
As of the reporting date, Altschuler Funds are not related parties of the Company.
On November 28, 2016, the Company reported the signing of an investment agreement with a third party, regarding the investment of NIS 1,500,000 (USD 392 thousand), in consideration of the allocation of 2,678,571 shares, at a price of NIS 0.56 per share.
In case, during the 12 month period after the transaction closing date, the Company performs a capital raising, including through a private allocation, at a price per share which will be lower than a price of NIS 0.56 per share, the third party will be entitled to compensation in shares, in a quantity which will be determined according to the difference between the price of NIS 0.56 per share, and the share price in the future capital raising. In any case, no shares whatsoever will be allocated at a price less than NIS 0.3 per share.
On December 4, 2016, stock exchange notified the Company of the receipt of approval for the allocation of the aforementioned shares, and on December 5, 2016, the Company announced the closing of the transaction and the receipt of the entire consideration.
| D. | On November 31, 2017, the Company reported the results of the public offering, according to which the Company allocated 4,250,000 shares and 2,125,000 options (Series 3) for a gross consideration in the amount of approximately NIS 2,083 thousand. | |
| E. | In the shareholders’ meeting which was held on February 7, 2019, approval was received for an extraordinary private allocation of 14,291,667 Company shares to 4 investors, in consideration of investment in the Company of a total of approximately USD 17.15 million (NIS 62,283 thousand) (according to an exchange rate of 1.2). The foregoing allocation was completed on February 19, 2019. | |
| F. | June 23, 2019 was the deadline for exercising the options (Series 3) of the Company which had been allocated based on the shelf offering report dated November 19, 2017. Until that date, approximately 99.99% of the allocated options (Series 3) were exercised, including by the Company’s controlling shareholder, who exercised 885,415 options (Series 3). A total of NIS 2,675 thousand was paid to the Company in respect of the exercise of these options during the period. | |
| G. | On September 1, 2019, Bamot exercised all of its options at an exercise price of NIS 1 per share, in consideration of 1,000,000 ordinary shares of the Company. | |
| H. | On September 1, 2019, a consultant exercised 557,050 options in consideration of an exercise price of NIS 0.3736 per share, in consideration of 557,050 ordinary Company shares. | |
| I. | On January 9, 2020, 54,000 options, which are convertible into shares at an exercise price of NIS 5.65 per share, were allocated to 3 directors of the Company. | |
| J. | On May 3, 2020, two consultants exercised 62,020 options in consideration of an exercise price of NIS 4 per share, in consideration of 62,060 ordinary Company shares. |
| F-47 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| K. | On May 13, 2020, a former employee of the subsidiary exercised 280,000 options in consideration of an exercise price of NIS 2.09 per share, in consideration of 280,000 ordinary Company shares. | |
| L. | In June 2020, the Company’s audit committee and board of directors approved an allocation of Company shares, in a private allocation of shares and options, to seven institutional investors, to one additional investor, Yael Feigel, a related party, and to the Company’s controlling shareholder or to a company under his control, which will invest in the Company a total of approximately NIS 38.2 million, in consideration of the allocation of 9,257,820 ordinary shares and 8,332,038 options exercisable into 8,332,038 shares. The allocation was approved by the general meeting on July 30, 2020, and the Company allocated the shares on August 4, 2020. | |
| M. | On September 17, 2020, 1,788,962 ordinary shares in the Company were allocated as part of the transaction involving the acquisition of the control of Cannolam. | |
| N. | Changes in share capital: |
| 1) | The Company’s registered capital as of December 31 is 1,000,000,000 shares with no par value. | |
| 2) | Issued and paid-up capital |
| Number of shares | ||||
| Balance as of January 1, 2020 | 108,481,848 | |||
| Options exercised by employees | 280,000 | |||
| Allocation of shares in respect of the acquisition of Cannolam | 1,788,962 | |||
| Private allocation (Note 17L) | 9,257,820 | |||
| Options exercised by consultant (Note 17J) | 62,020 | |||
| Balance as of December 31, 2020 | 119,870,650 | |||
| O. | Rights associated with shares: |
Each share gives its owner the right to participate and to vote in the general meetings (each share has one voting right), and the right to receive dividends and/or bonus shares.
| F-48 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| P. | Share-based payment transactions: |
Expense recognized in the financial statements
The expense which was recognized in the financial statements for received services is presented in the following table:
For the year ended December 31 | ||||||||||||
| 2020 | 2019 | 2018 | ||||||||||
| NIS in thousands | ||||||||||||
| Equity-settled share-based payment plans | 10,008 | 68,036 | 7,830 | |||||||||
| Total expenses recognized from share-based payment transactions | 10,008 | 68,036 | 7,830 | |||||||||
| Q. | Options plan |
On March 31, 2015, the Company’s board of directors resolved to adopt a new plan for the allocation of shares and options to employees, directors and consultants (the “2015 Options Plan”).
Presented below are the main terms of the 2015 options plan:
| ● | In accordance with the 2015 options plan, options or shares will be allocated to the Company’s employees in accordance with section 102 of the Income Tax Ordinance (New Version), 5721-1961 (hereinafter: the “Income Tax Ordinance”), in accordance with the trustee track or the non-trustee track. Options will be allocated to consultants, service providers, controlling shareholders or any other entity other than Company employees in accordance with section 3(I) of the Income Tax Ordinance only. | |
| ● | The exercise price of each share option will be determined by the board of directors in its exclusive discretion, in accordance with the provisions of the law, and subject to guidelines which will be recommended by the committee from time to time. |
| F-49 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
Characteristics and scope of share-based payment arrangements during the period:
During the period ended December 31, 2020, the Company had share-based payment arrangements as described below:
| Allocation
of options 6 | Allocation of options 7 | Allocation of options 8 | Allocation of options 9 | |||||||||||||
| Grant date | 07/02/19 | 07/02/19 | 07/02/19 | 07/02/19 | ||||||||||||
| Number granted | 916,837 | 1,833,673 | 1,833,673 | 1,100,000 | ||||||||||||
| Original contract duration | 5 | 5 | 5 | 10 | ||||||||||||
| Vesting period | 1/3 vest on the grant date, and the remainder over a period of 36 months after the grant date | 1/3 vest on the grant date, and the remainder over a period of 36 months after the grant date | 1/3 vest on the grant date, and the remainder over a period of 36 months after the grant date | 25% vest on the grant date; 25% on October 1, 2019; 20% on October 1, 2020; 15% on October 1, 2021; and 15% vest on October 1, 2022 | ||||||||||||
| Exercise price (NIS) | 2.00 | 3.00 | 4.00 | 5.00 | ||||||||||||
| Economic value of all options (B&S) as of the grant date (NIS in thousands) | 11,344 | 22,226 | 21,835 | 14,015 | ||||||||||||
| Data and economic assumptions in the model: | ||||||||||||||||
| Share price (in NIS) | 13.2 | 13.2 | 13.2 | 13.2 | ||||||||||||
| Risk-free interest rate | 1.29 | % | 1.29 | % | 1.29 | % | 2.22 | % | ||||||||
| Volatility rate | 116.53 | % | 116.53 | % | 116.53 | % | 116.53 | % | ||||||||
| Options as of January 1, 2020 | 475,402 | 950,795 | 950,795 | - | ||||||||||||
| Granted options: | - | - | - | 1,100,000 | ||||||||||||
| Vested options | 203,743 | 407,484 | 407,484 | 550,000 | ||||||||||||
| Options exercised into shares | - | - | - | - | ||||||||||||
| Expired options: | 550,000 | |||||||||||||||
| Options exercisable as of December 31, 2020: | 679,145 | 1,358,279 | 1,358,279 | - | ||||||||||||
| Additional details | Chairman of the Board | Chairman of the Board | Chairman of the Board | CEO of Canndoc | ||||||||||||
| F-50 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| Allocation
of options 10 | Allocation
of options 12 | |||||||
| Grant date | 07/02/19 | 21/05/19 | ||||||
| Number granted | 700,000 | 62,020 | ||||||
| Original contract duration | 10 | 1 | ||||||
| Vesting period | 25% vest on the grant date; 25% on October 1, 2019; 20% on October 1, 2020; 15% on October 1, 2021; and 15% vest on October 1, 2022 | Grant date | ||||||
| Exercise price (NIS) | 5.00 | 4.00 | ||||||
| Economic value of all options (B&S) as of the grant date (NIS in thousands) | 8,918 | 340 | ||||||
| Data and economic assumptions in the model: | ||||||||
| Share price (in NIS) | 13.2 | 8 | ||||||
| Risk-free interest rate | 2.22 | % | 0.32 | % | ||||
| Volatility rate | 116.53 | % | 149.11 | % | ||||
| Options as of January 1, 2020: | 350,000 | 62,020 | ||||||
| Granted options: | - | - | ||||||
| Vested options: | 140,000 | - | ||||||
| Exercised share options: | - | 62,020 | ||||||
| Options exercisable as of December 31, 2020: | 490,000 | - | ||||||
| Additional details | Director | Two consultants | ||||||
| F-51 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| Allocation of options 14 | Allocation
of options 15 | Allocation
of options 16 | Allocation
of options 17 | |||||||||||||
| Grant date | 29/05/19 | 11/02/19 | 11/02/19 | 09/01/20 | ||||||||||||
| Number granted | 100,000 | 700,000 | 400,000 | 54,000 | ||||||||||||
| Original contract duration | 10 | 10 | 10 | 10 | ||||||||||||
| Vesting period | 30,000 vested on the grant date; the remainder will vest in 9 equal quarterly tranches until February 1, 2022. | 25% vest on January 31, 2019; 25% on October 1, 2019; 20% on October 1, 2020; 15% on October 1, 2021; and 15% vest on October 1, 2022 | 25% vest on January 31, 2019; 25% on October 1, 2019; 20% on October 1, 2020; 15% on October 1, 2021; and 15% vest on October 1, 2022 | Vesting over during 36 months after the grant date | ||||||||||||
| Exercise price (NIS) | 7.2 | 5 | 2.09 | 5.65 | ||||||||||||
| Economic value of all options (B&S) as of the grant date (NIS in thousands) | 594 | 9,171 | 5,315 | 196 | ||||||||||||
| Data and economic assumptions in the model: | ||||||||||||||||
| Share price (in NIS) | 6.45 | 13.57 | 13.57 | 3.627 | ||||||||||||
| Risk-free interest rate | 1.89 | % | 0.66 | % | 2.23 | % | 1.08 | % | ||||||||
| Volatility rate | 109.79 | % | 119.23 | % | 116.36 | % | 102.8 | % | ||||||||
| Options as of January 1, 2020: | 30,000 | 490,000 | 280,000 | - | ||||||||||||
| Granted options: | - | - | - | 54,000 | ||||||||||||
| Expired options: | 30,000 | 490,000 | 280,000 | |||||||||||||
| Options exercisable as of December 31, 2020: | - | - | - | 16,500 | ||||||||||||
| Additional details | Former CFO | Officer | Officer | Company directors | ||||||||||||
For additional details regarding the approval of a grant of additional options to directors after the reporting date, see Note 24.
| F-52 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
Changes during the year
Presented below is a table listing the number of share options, the weighted average of their exercise prices, and the changes which were made to the employee options plans during the current year:
| 2020 | 2019 | 2018 | ||||||||||||||||||||||
| Number of options | Weighted average exercise price | Number of options | Weighted average exercise price | Number of options | Weighted average exercise price | |||||||||||||||||||
| NIS | NIS | NIS | ||||||||||||||||||||||
| Share options at beginning of year | 6,634,183 | 3.77 | 75,000 | 0.66 | 1,592,667 | 0.43 | ||||||||||||||||||
| Share options which were granted during the year | 54,000 | 5.65 | 7,584,183 | 3.79 | - | - | ||||||||||||||||||
| Share options which were forfeited during the year | - | - | 950,000 | 4.79 | - | - | ||||||||||||||||||
| Share options which expired during the year | 1,070,000 | 5.06 | - | - | - | - | ||||||||||||||||||
| Share options which were exercised during the year | 280,000 | 2.09 | 75,000 | 0.66 | 1,517,667 | 0.43 | ||||||||||||||||||
| Share options at end of year | 5,338,183 | 3.46 | 6,634,183 | 3.64 | 75,000 | 0.66 | ||||||||||||||||||
| Exercisable share options at year end | 5,252,203 | 1 | 4,076,992 | 3.77 | 75,000 | 0.66 | ||||||||||||||||||
The exercise prices of the stock options in the years 2018 to 2020 ranged from NIS 0.43-7.2 per option.
The remaining contractual lifetime of the options as of December 31, 2020 was around 5.83 years.
The Company also has a compensation policy which was approved on December 31, 2019.
After the reporting date, an allocation to Company employees was performed, as described in Note 24.
| F-53 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
Note 18 - Expenses:
Cost of revenue
For the year ended December 31 | ||||||||||||
| 2020 | 2019 | 2018 | ||||||||||
| NIS in thousands | ||||||||||||
| Payroll and associated expenses | 3,396 | 1,703 | - | |||||||||
| Farm operating expenses | 11,749 | 1,545 | - | |||||||||
| Purchases | 29,688 | - | - | |||||||||
| Depreciation | 2,562 | 534 | - | |||||||||
| Changes in inventory | (12,746 | ) | 3,674 | - | ||||||||
| 34,649 | 7,456 | - | ||||||||||
General and administrative expenses:
For the year ended December 31 | ||||||||||||
| 2020 | 2019 | 2018 | ||||||||||
| NIS in thousands | ||||||||||||
| Payroll and associated expenses | 5,207 | 6,655 | 16 | |||||||||
| Consulting and professional expenses | 1,183 | 2,889 | 1,047 | |||||||||
| Share-based payment | 10,008 | 68,036 | 7,830 | |||||||||
| Directors’ fees including share-based payment | 329 | 236 | 312 | |||||||||
| Insurance | 395 | 181 | 189 | |||||||||
| Rent and maintenance | 395 | 750 | 115 | |||||||||
| Provision for doubtful debts | - | 550 | - | |||||||||
| Fees | 172 | 176 | 65 | |||||||||
| Depreciation | 691 | 294 | 10 | |||||||||
| Other | 221 | 342 | 226 | |||||||||
| 18,601 | 80,109 | 9,810 | ||||||||||
Other expenses (income):
For the year ended December 31 | ||||||||||||
| A. Other income | 2020 | 2019 | 2018 | |||||||||
| NIS in thousands | ||||||||||||
| Gain in respect of acquisition of a subsidiary | - | 58,808 | - | |||||||||
| Other | - | 154 | - | |||||||||
| - | 58,962 | - | ||||||||||
| F-54 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| B. Other expenses | For the year ended December 31 | |||||||||||
| 2020 | 2019 | 2018 | ||||||||||
| NIS in thousands | ||||||||||||
| Issuance expenses (1) | 3,428 | - | - | |||||||||
| Other | 1,135 | - | 324 | |||||||||
| 4,563 | 324 | |||||||||||
(1) During 2020, the Company recorded issuance expenses in the amount of NIS 3,321 thousand, which were associated with a shares transaction that did not consumate.
Note 19 - Finance income:
For the year ended December 31 | ||||||||||||
| 2020 | 2019 | 2018 | ||||||||||
| NIS in thousands | ||||||||||||
| Income from deposits | 21 | 141 | - | |||||||||
| Exchange differences | 599 | - | - | |||||||||
| Total finance income | 620 | 141 | - | |||||||||
Note 20 - Finance expenses:
For the year ended December 31 | ||||||||||||
| 2020 | 2019 | 2018 | ||||||||||
| NIS in thousands | ||||||||||||
| Increase in the value of liabilities in respect of options | - | - | 840 | |||||||||
| Interest in respect of loan from related party | 174 | 1,801 | 1,026 | |||||||||
| Expenses in respect of fees | 264 | 134 | 11 | |||||||||
| Exchange differences | - | 1,320 | 209 | |||||||||
| Finance in respect of lease liability | 90 | 37 | - | |||||||||
| Total finance expenses | 528 | 3,292 | 2,086 | |||||||||
| F-55 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
Note 21 - Earnings (Loss) Per Share:
Details regarding the number of shares in the calculation of loss per share
| For the year ended December 31 | ||||||||||||||||||||||||
| 2020 | 2019 | 2018 | ||||||||||||||||||||||
| Loss | Loss | Loss | |||||||||||||||||||||
Weighted number of shares | NIS in thousands | Weighted number of shares | NIS in thousands | Weighted number of shares | NIS in thousands | |||||||||||||||||||
| Number of shares and loss for calculating basic loss per share | 112,994,793 | (36,040 | ) | 103,665,119 | (5,893 | ) | 79,921,694 | (12,798 | ) | |||||||||||||||
| Options which could potentially be dilutive in the future, currently antidilutive | 19,451,239 | 16,216,203 | – | 11,743,528 | – | |||||||||||||||||||
Note 22 - Balances and Transactions with Related Parties:
A. Balances with related parties (consolidated)
Composition:
| December 31 | ||||||||
| 2020 | 2019 | |||||||
| NIS in thousands | ||||||||
| Short-term loans (Note 13) | 407 | 13,633 | ||||||
| 407 | 13,633 | |||||||
| F-56 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| B. | Benefits in respect of the employment of key management personnel (including directors) (*) who are employed in the Company: |
For the year ended December 31 | ||||||||||||||||||||||||
| 2020 | 2019 | 2018 | ||||||||||||||||||||||
| Amount | Amount | Amount | ||||||||||||||||||||||
| Number of people | NIS in thousands | Number of people | NIS in thousands | Number of people | NIS in thousands | |||||||||||||||||||
| Short-term employee benefits | 3 | 782 | 3 | 833 | - | - | ||||||||||||||||||
| Management fees | 1 | 122 | - | - | - | - | ||||||||||||||||||
| Share-based payment | 1 | 9,874 | 2 | 37,157 | - | - | ||||||||||||||||||
| 3 | 10,778 | 3 | 37,990 | - | - | |||||||||||||||||||
(*) The key management personnel include the Chairman of the Board, the Company’s CEO, and the CFO
Main employment terms of key management personnel employed by the Company:
| A. | Chairman of the Board, Mr. Ehud Barak | |
| ● | His scope of employment will be 40 monthly hours, as a minimum, for which he will be entitled to a monthly payment, in terms of cost for the Company, of USD 10 thousand. | |
| ● | Fringe benefits - Mr. Barak will be entitled to 12 vacation days per year, 18 paid sick days and convalescence days according to the number prescribed in law, as it stands from time to time. Mr. Barak will also be included in the Company’s directors’ and officers’ liability insurance policy, and he will be entitled to receive a letter of indemnity, in accordance with the Company’s standard practice. | |
| ● | Reimbursement of expenses - Mr. Barak will be entitled to reimbursement of expenses, both in Israel and abroad, in accordance with the Company’s standard practice, in the interest of promoting the Company’s affairs. | |
| ● | Options - additionally, 4,584,184 (unlisted) options were allocated to Mr. Barak, which are exercisable into 4,584,184 ordinary Company shares subject to the provisions of the Company’s options plan, which was adopted by the Company on March 31, 2015, and in accordance with the options agreement with Mr. Barak. | |
| B. | Director and CEO, Mr. Alexander Rabinovitch | |
| ● | Mr. Rabinovitch is not entitled to payment in respect of his position as a director of the Company. Mr. Rabinovitch was appointed as the Company’s CEO, and the terms of Mr. Rabinovitch’s tenure as the Company’s CEO, beginning on January 1, 2019, were approved by the Company’s general meeting on February 7, 2019, in accordance with the following: |
| F-57 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| ● | Monthly salary - Mr. Rabinovitch is entitled, in respect of his tenure as Company CEO, to a monthly payment in the amount of NIS 15,000, in consideration of a 50% position. | |
| ● | Agreement period - In accordance with the provisions prescribed in law, and in accordance with the general meeting’s approval, the agreement with Mr. Rabinovitch is limited to a period of 3 years after the date of the meeting’s approval of his appointment, as stated above. | |
| ● | Reimbursement of expenses - Mr. Rabinovitch is entitled to reimbursement of expenses, in Israel and abroad, in accordance with the Company’s standard practice, in the interesting of promoting the Company’s affairs. | |
| ● | He is also entitled to be included in the Company’s directors’ and officers’ liability insurance policy, and he will be entitled to receive a letter of indemnity, in accordance with the Company’s standard practice. | |
| C. | Amos Cohen, CFO | |
| ● | Mr. Cohen was appointed as the CFO of the Company and as the CFO of Canndoc Ltd. beginning on March 16, 2020 (hereinafter: the “Grant Date”), for an undefined period. Mr. Cohen’s terms of employment were approved on January 16, 2020. | |
| ● | Mr. Cohen was entitled to a gross monthly salary in the amount of NIS 20 thousand, in respect of his position as Intercure’s CFO, as well as monthly management fees in the amount of NIS 20 thousand in respect of his tenure as Canndoc’s CFO. In January 2021, the management fees in respect of his tenure as Canndoc’s CFO were updated to NIS 38 thousand. After the reporting date, he also received an allocation of 599,353 Company options, at an exercise price of NIS 4.13 per share, which will vest in 16 quarterly tranches, whereby one tranche vested immediately when granted, and the remainder will vest between March 31, 2021 and September 30, 2025. |
| C. | Benefits in respect of key management personnel (including directors) who are not employees of the Company: |
For the year ended December 31 | ||||||||||||||||||||||||
| 2020 | 2019 | 2018 | ||||||||||||||||||||||
| Amount | Amount | Amount | ||||||||||||||||||||||
| Number of people | NIS in thousands | Number of people | NIS in thousands | Number of people | NIS in thousands | |||||||||||||||||||
| Short term employee benefits | 1 | 371 | 1 | 493 | 5 | 409 | ||||||||||||||||||
| Management fees | 3 | 329 | 4 | 234 | ||||||||||||||||||||
| Share-based payment | 3 | 134 | - | - | 1 | 7,732 | ||||||||||||||||||
| 4 | 834 | 4 | 727 | 5 | 8,141 | |||||||||||||||||||
(*) The key management personnel who are not employees of the Company include one director, two outside directors, and one independent director.
| F-58 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
Main employment terms of key management personnel employed in the Company:
| A. | President of Canndoc, Mr. Avner Barak | |
| ● | Mr. Barak is employed as President of Canndoc, in a full time position. In consideration of his tenure in Canndoc, Mr. Barak is entitled to a monthly salary at a monthly cost of NIS 28,000, including a monthly payment for the purpose of providing a vehicle, social benefits in accordance with the law, study fund and cellphone. | |
| ● | Fringe benefits - Mr. Barak is entitled to 18 vacation days per year, 10 convalescence days, and full sick pay beginning on from the first day of absence due to illness. Mr. Barak will also be included in the Company’s directors’ and officers’ liability insurance policy, and he will be entitled to receive a letter of indemnity, in accordance with the Company’s standard practice. | |
| ● | Reimbursement of expenses - Insofar as Mr. Avner Barak is required to travel abroad for the purpose of his position, he will be entitled to reimbursement of international travel, food and lodging expenses, in accordance with the Company’s standard practice. | |
| ● | Signing bonus - Mr. Barak was entitled to a one-time signing bonus in the amount of NIS 88,000, which was paid to him upon the general meeting’s approval of the foregoing terms. | |
| ● | Annual bonus based on the fulfillment of targets - The bonus will be in an amount equal to 2 to 6 monthly salaries, which will be paid to Mr. Avner Barak in respect of the year in which the targets and successes were achieved. | |
| ● | Options - additionally, 700.000 (unlisted) options were allocated to Mr. Barak, which are exercisable into 700.000 ordinary Company shares subject to the provisions of the Company’s options plan, which was adopted by the Company on March 31, 2015, and in accordance with the options agreement with Mr. Barak. | |
| ● | Additionally, until November 30, 2020 Mr. Avner Barak served as a director in the Company - In consideration of Mr. Barak’s tenure as a director in the Company, he was entitled to payment of NIS 8,000 per month. | |
| B. | Independent director, Dudy Salton | |
| ● | Mr. Salton serves as an independent director in the Company, and receives directors’ compensation in accordance with the amount prescribed in the Israeli Companies Regulations. | |
| C. | Outside director, Lenny Greenbaum | |
| ● | Ms. Greenbaum serves as an independent director in the Company, and receives directors’ compensation in accordance with the amount prescribed in the Israeli Companies Regulations. | |
| D. | Outside director, Gideon Hirschfeld | |
| ● | Mr. Hirschfeld serves as an independent director in the Company, and receives directors’ compensation in accordance with the amount prescribed in the Israeli Companies Regulations. |
| F-59 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| E. | Director, Alon Granot | |
| ● | Mr. Granot has served as a director in the Company since November 30, 2020, and receives directors’ compensation in accordance with the amount prescribed in the Israeli Companies Regulations. |
| F. | Other transactions with related parties |
Loan from the Company’s controlling shareholder - See Note 13A above.
Investment agreement between the controlling shareholder and the Company - See Notes 13 and 17C above.
Rental expenses - See Note 13C above.
Note 23 - Operating Segments:
Until August 2018, the Company was engaged in a single operating segment - investments in portfolio companies in the biomed sector. Since the date of significant influence over Canndoc Ltd., the Company has 2 operating segments: (A) Investments in portfolio companies in the biomed sector, and (B) Investments in the medical cannabis sector.
A. Investments in portfolio companies in the biomed sector: the Company has investments in Regenera, XTL and Novellus. These investments are measured at fair value through profit or loss. See Note 10.
Presented below are financial data regarding the segment:
| 2020 | 2019 | |||||||
| NIS in thousands | ||||||||
| Loss (profit) from investment in XTL | (199 | ) | 69 | |||||
| Loss (profit) from investment in Regenera | 39,910 | (32,130 | ) | |||||
| Loss (profit) from investment in Novellus | (2,516 | ) | 11,065 | |||||
| 37,195 | (20,996 | ) | ||||||
| 2020 | 2019 | |||||||
| NIS in thousands | ||||||||
| Fair value of the investment in XTL | 376 | 177 | ||||||
| Fair value of the investment in Regenera | - | 39,910 | ||||||
| Fair value of the investment in Novellus | 3,141 | - | ||||||
| 3,517 | 40,087 | |||||||
| B. | Investments in the medical cannabis sector - in 2018, the Company acquired 38% of Canndoc Ltd., a company engaged in the medical cannabis sector. In 2019, the Company acquired the remaining 62%, and now holds 100% of Canndoc. |
| F-60 |
| Notes to the Consolidated Financial Statements | Intercure Ltd. |
| C. | In 2020, the Company acquired 50.1% of the shares of Cannolam (and obtained control), which operates pharmacies in the medical cannabis segment. | |
| The Company’s Chief Operating Decision Maker (the CEO) reviews the financial results of Canndoc and Cannolam as a single business unit. | ||
| D. | Operating segment data: | |
| Reconciliation of operating segment data include cancellation of assets of the cannabis segment, addition of the investment in accordance with the equity method, and addition of assets and liabilities which were not attributed to segments. |
| NIS in thousands* | ||||||||||||||||
| Cannabis segment | Biomed segment | Reconciliations | Total | |||||||||||||
| Year ended December 31, 2020 | ||||||||||||||||
| External revenue | 65,035 | - | - | 65,035 | ||||||||||||
| Segment profit (loss) | 14,250 | (37,195 | ) | - | (22,945 | ) | ||||||||||
| General and administrative expenses not attributable to segments | (10,892 | ) | ||||||||||||||
| Other expenses, net | (4,563 | ) | ||||||||||||||
| Operating loss | (38, 400) | |||||||||||||||
| Segment assets (1) | 114,559 | 3,517 | 208,194 | 326,270 | ||||||||||||
| Segment liabilities | 23,935 | - | 10,227 | 34,162 | ||||||||||||
| NIS in thousands* | ||||||||||||||||
| Cannabis segment | Biomed segment | Reconciliations | Total | |||||||||||||
| Year ended December 31, 2019 | ||||||||||||||||
| External revenue | 9,609 | - | (683 | ) | 8,926 | |||||||||||
| Segment profit (loss) | (12,567 | ) | 20,996 | 895 | 9,324 | |||||||||||
| General and administrative expenses not attributable to segments | (71,361 | ) | ||||||||||||||
| Other income, net | 58,962 | |||||||||||||||
| Equity losses | (340 | ) | ||||||||||||||
| Operating loss | (3,415 | ) | ||||||||||||||
| Segment assets (1) | 47,846 | 40,087 | 194,300 | 282,233 | ||||||||||||
| Segment liabilities | (53,518 | ) | - | 27,486 | (26,032 | ) | ||||||||||
| (1) | In 2019 the Company consolidated Canndoc’s operating results for the first time, beginning in February 2019. |
| NIS in thousands* | ||||||||||||||||
| Cannabis segment | Biomed segment | Reconciliations | Total | |||||||||||||
| Year ended December 31, 2018 | ||||||||||||||||
| External revenue | 6,955 | - | (6,955 | ) | - | |||||||||||
| Segment profit (loss) | 1,006 | (577 | ) | (1,006 | ) | (577 | ) | |||||||||
| General and administrative expenses not attributable to segments | (9,810 | ) | ||||||||||||||
| Other expense, net | (324 | ) | ||||||||||||||
| Equity losses | (1 | ) | ||||||||||||||
| Operating loss | (10,712 | ) | ||||||||||||||
| Segment assets | 11,141 | 23,622 | 1,157 | 35,920 | ||||||||||||
| Segment liabilities | (4,612 | ) | - | (11,646 | ) | (16,258 | ) | |||||||||
Note 24 - Subsequent events:
| A. | On January 3, 2021, the Company engaged in a merger agreement with Subversive Real Estate Acquisition REIT LP (“Subversive”), a third party unrelated to the Company and/or to its controlling shareholders. Subversive is a Canadian special purpose acquisition corporation, listed on the Canadian Stock Exchange NEO (NEO:SVX.U), with limited operational activity which is not considered a business for accounting purposes. On February 9, 2021, the parties engaged in an amended agreement which replaced the prior agreement (and in additional accompanying agreements, which constitute a part of the overall agreement) (the “SPAC Transaction”). Under the terms of the SPAC Transaction, a wholly owned subsidiary of the Company will amalgamate with Subversive, with the equity holders of the Subversive receiving an allotment of the Company shares in consideration therefor. Subject to obtaining all required permits and approval following the SPAC Transaction, the Company’s shares will be listed for trading on the Toronto Stock Exchange (the “TSX”) and the Tel Aviv Stock Exchange (under dual listing). The closing of the SPAC Transaction is subject to conditions precedent which among others include that Subversive will have funds of at least USD 55 million, all approval and permits required for the SPAC Transaction have been received and that approval of the Company’s general assembly of the SPAC Transaction is obtained. The SPAC Transaction, which is effected through an exchange of equity instruments, is expected to be accounted for using a reverse acquisition methodology under the guidelines of IFRS 3, according to which, the accounting acquirer would deemed to be the Company. However, since Subversive would not be considered a business, as defined by IFRS 3, such transaction would be accounted for as a share-based payment transaction within the scope of IFRS 2. | |
| B. | On January 26, 2021, the Company published an outline of options for Company employees and officers, including an offer of up to 4,303,356 unlisted options, exercisable into up to 4,303,356 ordinary Company shares with no par value (hereinafter: the “Options”), which are offered in accordance with the 2015 options plan, to employees and officers of the Company and/or of the subsidiary Canndoc. The options in accordance with the outline were allocated on March 15, 2021. | |
| C. | On April 8, 2021, the Company effectuated a reverse split of its ordinary shares in ratio of 1-for-4.44926. Following the reverse split, the loss data per share was presented retrospectively for the periods presented in the financial statements in accordance with the provisions of International Accounting Standard 33 regarding earnings per share. |
| F-61 |
| ITEM 19. | EXHIBITS. |
* To be filed by amendment
# Management contract or compensatory plan.
| 118 |
SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this registration statement filed on its behalf.
| INTERCURE LTD. | ||||
| Date: | July 14, 2021 | By: | /s/ Alexander Rabinovich | |
| Alexander Rabinovich | ||||
| Chief Executive Officer | ||||
| 119 |
Exhibit 1.1
Articles of Association of
Intercure Ltd.
Table of Contents
| Definitions | 2 | |
| The Name of the Company | 3 | |
| The Objectives of the Company | 3 | |
| Public Company | 3 | |
| Limitation of Liability | 3 | |
| Capital, Shares and Rights | 3 | |
| Share Certificate | 4 | |
| Registered Shareholder | 4 | |
| Transfer of Shares of the Company | 5 | |
| Changes in the Share Capital | 6 | |
| Changing Classes of Rights | 7 | |
| Authority to Take Loans | 7 | |
| General Meetings | 7 | |
| Notice of a General Meeting | 8 | |
| The Discussion in General Meetings | 7 | |
| Legal Quorum | 8 | |
| Chairman of the General Meeting | 9 | |
| Voting of Shareholders | 9 | |
| Directors | 11 | |
| The Powers of the Directors, their Number, Composition and Election | 11 | |
| Payment of Remuneration | 12 | |
| Chairman of the Board of Directors | 12 | |
| Actions of the Directors | 12 | |
| Legal Quorum | 13 | |
| Ways of Attending Meetings | 13 | |
| Substitute Director | 14 | |
| Committees | 14 | |
| Approval of Transactions with Related Parties | 14 | |
| Recording of Resolutions and their Validity | 14 | |
| The CEO of the Company | 15 | |
| Exemption, Indemnification and Insurance of Officers | 15 | |
| Insurance of Officers | 15 | |
| Indemnification of Officers | 16 | |
| Advance Indemnification | 17 | |
| Retroactive Indemnification | 17 | |
| Exemption for Officers | 17 | |
| Exemption, Indemnity and Insurance – General | 17 | |
| Appointment of an Auditor | 17 | |
| Signature Rights | 18 | |
| Distributions | 18 | |
| Redeemable Securities | 19 | |
| Donations | 19 | |
| Notices | 19 |
Definitions
| 1. | Each of the words set forth hereafter will have the meaning in these Articles of association that appears next to it unless this does not fit the subject or the context of the matter: |
| Articles- | The Company’s Articles of Association as worded here or as amended from time to time. |
| Auditor- | Within its meaning in the Companies Law. |
| Board of Directors - | The Company’s Board of Directors. |
| General Manager- | The General Manager |
| Class Meetings - | Meeting of shareholders holding a certain class of share. |
| Chairman- | The Chairman of the Board of Directors |
| The Company - | Intercure Ltd. |
| The Companies Regulations- | Regulations enacted under the Companies Law. |
| Distribution- | Within its meaning in the Companies Law. |
| External Director- | Within its meaning in the Companies Law. |
| The Companies Law or | |
| the Law - | The Companies Law, 5759-1999 and regulations enacted thereunder. |
| NIS - | New Shekels |
| The Office- | The registered office of the Company, as shall be located from time to time. |
| Officer- | Within its meaning in the Companies Law. |
| Ordinary Shares - | The new ordinary shares of the Company without a par value. |
| Register of Shareholders- | The register of shareholders administered by the Company or administered on behalf of the Company. |
| Shareholder- | Within its meaning in the Companies Law. |
| Ordinary Majority- | A majority of more than half of the votes of the shareholders present and voting, with the exception of abstentions. |
| The Laws | The Companies Law, the Companies Ordinance [New Version], 5743- 1983, the Securities Law, 5728- 1968 (the “Securities Law”), all the laws and regulations applicable in the relevant jurisdictions as well as the laws of stock markets in which the Company’s shares are listed for trade as shall be in force from time to time and shall be applicable. |
| 2 |
| Special Majority | A majority of seventy-five percent (75%) at least or more of the votes of shareholders present and voting, except for the abstentions. |
Unless stated otherwise above or in other provisions in the Articles, every word and phrase in the Articles shall have the meaning known for them in the Companies Law, and if they have no meaning in the Companies Law then they have meaning known for the Companies Regulations, and if they have no such meaning then the meaning known for them Securities Law and if they have no such meaning, then the meaning known for them in the Securities Regulations and if they do not have such meaning, then the meaning known for them in any other law, and all if the meaning given above does not contradict the context in which such word or phrase term or the purpose of the relevant provision in the Articles.
| 2. | Where singular language is used this will also mean plural and vice versa. Where the male gender is used this will also mean the female gender and vice versa. An individual shall also mean a corporation. |
In any event where a provision of these Articles will be contrary to what is permitted by law this provision will be void, without harming the validity of any part of the other provisions of the Articles.
The Name of the Company
| 3. | The name of the Company is Intercure. |
The Objectives of the Company
| 4. | The objectives of the Company will be to engage in any legal engagement as shall be determined by the Board of Directors from time to time. |
Public Company
| 5. | The Company is a public company in accordance with the Companies Law. |
Limit of Liability
| 6. | The liability of the shareholders for the Company’s debts shall be limited to the payment of the entire amount that they undertook to pay to the Company for the shares issued to them (par value with an additional premium) and which have not yet been paid by them. |
Capital, Shares and Rights
| 7. | The registered share capital of the Company is 100,000,000 new ordinary shares with no par value, subject to changes to be applied from time to time by a resolution of the General Meeting of the Company’s Shareholders. |
The issued and paid-up shares, which are of the same class of will confer equal rights for any purpose and intention with respect to the rights described hereafter. A shareholder’s liability for the Company’s debts is limited to the full payment of the original price of the shares first issued to him or to his predecessor. After payment by the original shareholder, the shareholder or the person to whom the shares were transferred will not be liable for the Company’s debts.
| 3 |
| 8. | Each new ordinary share that was issued confers to its holders the rights set forth hereafter: |
| 8.1. | An equal right to attend and vote at ordinary or special meetings of shareholders. Each share shall confer to its holder, who is present at the meeting and participates in the voting, directly or by proxy statement, one vote. | |
| 8.2. | An equal right to participate in any distribution. | |
| 8.3. | An equal right to participate in the distribution of the Company’s assets that can be distributed in the event of the Company’s liquidation. |
| 9. | Where two or more persons are jointly registered as holders of any share, each of them may confirm the actual receipt of any dividend or other payments in connection with that same share. |
| 10. | In accordance with the requirements of the law, a trustee must report of the Company the fact that he holds the Company’s shares in trust for another person, at the time required according to any law. The Company shall note this fact in the Register of Shareholders in relation to these Shares. The trustee will be considered the sole holder of those shares. The Company shall not be obligated or required to recognize a right based on the rules of equity or a conditional right, or a right for the future, or a partial right in the share, or any other right in connection with the share, except for the absolute right of the registered holder in respect of each share. |
Share Certificate
| 11. | A shareholder registered in the register of shareholders is entitled to receive from the Company, at his request and free of charge, within three months after the issuance or registration of the transfer, one certificate regarding all the shares registered in his name, which will list the number of shares held by this shareholder. In the case of a jointly held share, the Company will issue one certificate to all the shareholders jointly holding a share, and the delivery of such certificate to one of the joint holders shall be deemed to be a delivery to all of them. Each certificate shall bear the stamp of the Company or a facsimile copy of it and it will be signed by two officers of the Company. A nominee Company may receive from the Company, at its request, within three months after the issuance or registration of the transfer, as applicable, one certificate attesting to the number of shares registered in respect of all the shares registered in its name in the register of shareholders. |
| 12. | A damaged, destroyed or lost share certificate may be replaced with a new one on the basis of proof and guarantees, as the Board of Directors shall decide from time to time. |
Registered Shareholder
| 13. | Unless otherwise stated in the Articles of Association, the Company may regard a registered shareholder as its sole holder, and accordingly, it shall not be obligated to recognize a claim based on the rules of equity or any other claim that another person has a claim or right to the share, unless this will be done based on a judicial decision of a competent court or on the basis of a provision of law. |
| 4 |
Transfer of Shares
| 14. | Subject to the provisions of any law, undertaking or agreement of a specific shareholder in the Company, the Company’s shares are transferable. |
| 15. | In the event that a shareholder becomes a stakeholder1 in the Company and/or an effective stakeholder2 prior to receiving the approvals required by law for him to hold the Company’s shares, including, but not limited to, the approval of the Medical Cannabis Unit and the Israel Police, then in light of the license provisions given to the Company by the Medical Cannabis Unit, the Company will have the right whether to forfeit, without consideration, and/or to render dormant part of the shares held by the same shareholder so that after the forfeiture of the shares and/or rendering them dormant, the shareholder will not be a stakeholder in the Company. |
The decision regarding the forfeiture of the shares and/or rendering them dormant will be made by the Company’s Board of Directors, and if the approval is given by the Medical Cannabis Unit and the Israel Police for the holding of the shares by the same shareholder, the forfeiture of the shares and/or the dormancy of the shares will be canceled.
| 16. | In addition, no shares of the Company will be issued to any offeree who will become an effective stakeholder and/or stakeholder in the Company as a result of the issuance, unless before the issuance the Company receives all approvals required by law for the offeree to hold the Company’s shares, including but not limited to, the approval of the Medical Cannabis Unit and the Israel Police. |
| 17. | Shares will be transferred in writing or in any other way, in a manner to be determined by the Board of Directors or by a nominee company appointed for that purpose by the Company. The share transfer form will be signed by the transferor and the transferee and it will be sent to the Company’s offices or to the nominee company’s offices together with the share certificates of the transferred shares, if such share certificates have been issued. The transferee will be considered the shareholder of the transferred shares from the date of registration of his name in the register of shareholders. |
| 18. | The Board of Directors may suspend the registration of share transfers for periods to be determined, provided that the total periods of such suspension do not exceed 30 days per year. The Company will notify shareholders of such decision. |
| 19. | In the event of death, entry into bankruptcy proceedings, entry into liquidation proceedings, insolvency or a similar occurrence of a shareholder, only the legal heirs of the shareholder will be recognized by the Company as holders of a right in the shares, but this will not exempt the previous shareholder’s estate from liability in respect of these shares. |
1 “Stakeholder” – as defined in the Companies Law.
2 “Effective Stakeholder” – a controlling shareholder in the stakeholder and/or material shareholder as these are defined in the Companies Law.
| 5 |
The legal heirs will be entitled to register themselves as holders of the shares, or to transfer their rights to another person, in accordance with the provisions of these Articles, after providing evidence of their entitlement in accordance with the requirement of the Board of Directors.
Changes in the Share Capital
| 20. | (A) Subject to the provisions of any law, a General Meeting of the shareholders may from time to time decide on the following matters: |
| 20.1. | To change or add other classes of shares which will constitute the registered capital of the Company, including, shares with preferred rights, deferred rights, conversion rights or other special rights or other restrictions. | |
| 20.2. | To increase the registered share capital of the Company by creating new shares of an existing or new class. | |
| 20.3. | To consolidate and/or split of the Company’s share capital, in whole or in part, into shares with a par value that is smaller or larger than that of the existing shares. | |
| 20.4. | To cancel any registered share capital, which has not yet been issued, provided that there is no obligation on the part of the Company to issue these shares. | |
| 20.5. | To reduce the Company’s share capital and any reserve fund for redeeming its capital. |
| (B) | Upon the execution of a resolution of the resolutions listed in section 18 (A) above, the Board of Directors may, at its discretion, decide on related matters. | |
| (C) | In the event that as a result of a merger or split of shares authorized under these Articles, any of the shareholders shall hold fragments of shares, the Board of Directors may, at its discretion, act as follows: |
| 1. | Decide that fragments of shares that do not entitle their owners to an entire share will be sold to the Company and that the consideration for the sale will be paid to those entitled, under terms that the Board of Directors will be entitled to determine. | |
| 2. | To issue to any shareholder who holds fragments of a share as a result of consolidation and/or redistribution, shares of the class of shares that existed before the merger and/or distribution, in such a number that their consolidation with the fraction will suffice for one complete consolidated share and such issuance will be considered valid prior to the consolidation or the split; | |
| 3. | To determine a way to pay the amounts that are supposed to be paid for issued shares in connection with section 18 (C) (2) above including on account of bonus shares; and/or | |
| 4. | To determine that holders of fractions of shares will not be entitled to receive an entire share in respect of a fraction of a share or that they may receive an entire share at a different par value than that of the share. |
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| 21. | Unless otherwise stated in these Articles or in the terms of the issuance of the shares, any new share capital shall be deemed to be part of the original share capital and it shall be subject to the same provisions of these Articles relating to payment calls, pledge, transfer, forfeiture and the like, that applied to the original share capital. |
Changing Classes of Shares
| 22. | If at any given time the share capital is divided into different classes of shares, any change in the rights of holders of any class of shares will be subject to receiving consent of a class meeting of the same class of shares by a simple majority (unless otherwise determined in the provisions law or in the issuance terms of the shares of that same class). |
| 23. | The rights granted to holders of shares of any class shall not be deemed to have been altered by the creation or issuance of shares of any other class, including a new class (unless otherwise determined in the issuance terms of that class of shares). |
Authority to Take Loans
| 24. | The Company may from time to time, in accordance with the decision of the Board of Directors, raise, borrow or guarantee the payment of any amount or sums of money for the needs of the Company. The Company according to the decision of the Board of Directors may obtain or guarantee payment or the repayment of such amount or amounts in such manner and under conditions as it shall see fit and in particular by issuing bonds or stock of bonds secured by all or part of the Company’s property (current or future) including the Company’s capital that was not issued or will be paid at that time. The issuance of a series of bonds will require the approval of the Board of Directors. |
General Meetings
| 25. | Annual General Meetings shall be held at least once a calendar year, at a place and on a date to be determined by the Board of Directors, but no later than fifteen (15) months after the annual meeting preceding it. These General Meetings will be called the “annual meetings” and all other General Meetings of the Company will be called “special meetings”. At the annual meeting, directors and an auditor will be appointed, matters required by the Articles or the law will be conducted, as well as any other matter as determined by the Board of Directors. |
| 26. | The Board of Directors may convene a special meeting in accordance with its decision and it will be required to do so if it is presented with a written request to convene a special meeting from a person authorized to do so by law. |
Any request to convene a General Meeting shall specify the purposes of the meeting, shall be signed by those requesting the meeting and sent to the registered offices of the Company.
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| 27. | In addition, subject to the law, the Board of Directors may accept a request from a shareholder holding at least one percent (1%) of the issued and paid-up capital of the Company, to raise a particular item on the agenda of the General Meeting, only if the request also specifies (a) the name and address of the requesting shareholder; (b) a representation that the shareholder holds shares that confer to him the right to vote at the General Meeting and that he intends to attend the meeting, himself or by a proxy statement; (c) a description of any arrangements or understandings between the shareholder and another person or persons (mentioning the name of the other person) in connection with the matter which he requests to raise on the agenda; and (d) a statement that all the information to be provided to the Company according to the law or according to any other law in connection with such matter, if any, has been provided to the Company. In addition, if such an issue relates to the appointment to the Board of Directors in accordance with the Articles, the request will also specify the consent of each candidate to serve as a director of the Company if he chooses and a statement signed by each candidate that there is no impediment preventing his appointment as a director according to the law. In addition, the Board of Directors may, at its discretion, if it deems it necessary, require the shareholder who submitted the request to provide additional information necessary for including the issue on the agenda of the General Meeting, as the Board of Directors sees fit. |
| The Board of Directors shall determine the agenda of the General Meeting, subject to any law. |
Notice of a General Meeting
| 28. | A notice of convening a General Meeting shall be given in the manner prescribed in the laws. |
The Company is not required to give notice of a General Meeting to shareholders beyond what is required according to the laws.
| 29. | The incidental failure to provide a notice of the convening of a General Meeting or its non-acceptance by any of the shareholders shall not invalidate any resolution that was adopted at that meeting. |
The Discussion in General Meetings
Legal Quorum
| 30. | No resolution shall be passed at the General Meeting unless a legal quorum shall be present at the opening of the meeting. |
Except as mentioned hereafter with respect to the adjourned meeting, at least two shareholders present in person or by proxy, which holder or represent, themselves or by proxy statement, at least 33 1/3% or more of the voting rights in the Company, shall constitute a legal quorum for a General Meeting.
| 31. | If a half hour has passed from the time set for the meeting and the legal quorum is not yet present, the meeting shall be adjourned to one week thereafter, to the same time and at the same place or day, time and place as the Board of Directors shall determine in a notice to shareholders. The legal quorum at the adjourned meeting necessary for the matters for which the adjourned meeting was convened shall be two shareholders who hold and represent at least 10% of the issued and paid-up capital of the Company. |
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Chairman of the General Meeting
| 32. | The Chairman of the Board of Directors shall chair each General Meeting. In the absence of the Chairman of the Board of Directors at the General Meeting, or if he has not appeared after fifteen (15) minutes have passed from the time scheduled for the meeting, or if he is not interested in serving as chairman, the directors present at the meeting shall elect, by a simple majority vote, one of the members of the Board of Directors as chairman of the meeting. If the Board of Directors does not appoint a chairman of the General Meeting, the shareholders present at the meeting will elect one of the members of the Board of Directors, or if there is no member of the Board of Directors present or if all present members of the Board of Directors refuse to fill the position, they will elect one of those present to be the chairman of the meeting. |
| 33. | The chairman of the General Meeting may, with the consent of a General Meeting which has a legal quorum and shall do so at the instructions of the General Meeting, adjourn any meeting, discussion or decision on a subject on the agenda, to place and time to be decided by the meeting. If a General Meeting has been adjourned for less than twenty-one (21) days and its agenda has not been changed, a notice of the date of the new meeting will be given as soon as possible but no later than 72 hours before the adjourned meeting. If a General Meeting has been adjourned for more than twenty-one (21) days, notice of the time of the adjourned meeting shall be given in the manner in which the notice of the original meeting was given. Except as aforesaid, no shareholder shall be entitled to receive notice of the adjournment or of the agenda of an adjourned meeting. No matters will be discussed at the adjourned meeting except for matters that could have been discussed at the adjourned meeting. |
| 34. | A vote on the election of the chairman of the General Meeting or a decision to adjourn the meeting shall be made immediately. Votes on all other issues will be cast during the meeting, at a time and according to the order that will be decided upon by the chairman. |
Voting of Shareholders
| 35. | All the resolutions of the General Meeting shall require a simple majority, unless otherwise determined in the Articles of in the laws. Unless otherwise stated in the Articles, the replacement of the Articles or its amendment requires a special majority. |
| 36. | A statement by the Chairman of the General Meeting on adopting a resolution, adopting a unanimous resolution or by a specific majority or its rejection, or that it was not adopted by a special majority shall be final, and its inclusion in the minutes of the meeting shall constitute final evidence thereof (without the need to prove a number or voting ratio for or against such a resolution). |
| 37. | The chairman of the Board of Directors will not have a second vote and/or casting vote. If the votes were equal in relation to the proposed resolution, the proposal will be considered a rejected proposal. |
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| 38. | Where two or more persons are joint holders of a share, the vote of the first of them, whether by himself or by proxy statement, shall be accepted without the vote of the other joint shareholder, and for this purpose the first of the partners shall be determined by the order of appearance of the names in the register of the shareholders. |
| 39. | A proxy is not required to be a shareholder in the Company. |
| 40. | The means of appointing a proxy shall be in writing and it will be signed by the appointor or by his actual lawyer who is authorized to do so in writing. A corporation shall vote by a representative legally appointed in writing by the corporation. |
A letter of authorization for the appointment of a proxy or a representative of a corporation (whether for a particular General Meeting or not) shall be in wording to be approved by the Board of Directors from time to time.
| 41. | The letter of authorization shall be delivered to the Company’s offices or to another place to be decided by the Board of Directors no later than forty-eight (48) hours before the date of the General Meeting at which a proxy or representative shall be present. The letter of authorization will expire automatically, and it will not be valid 12 months after the date of appointment, unless a different expiration date was determined. |
| 42. | A proxy may also be appointed in relation to part of the shares held by a shareholder, a shareholder may also appoint more than one proxy, with each of the proxies voting in relation to part of the shareholder’s shares. |
| 43. | A shareholder who is not sane or has been declared incompetent to vote by a competent court may vote by a legal guardian or by another representative appointed by a court to vote on behalf of such shareholder. |
| 44. | A shareholder entitled to vote may give his written consent, refusal or abstention from any resolution included in a proxy statement submitted by the Company. The proxy statement will allow a vote on any issue determine in the Companies Regulations that must be included in the proxy statement and in any other issue in respect to which the Board of Directors will decide, in that case or in general, that it may be included in a proxy statement. A shareholder who votes by proxy statement will be taken into account in determining the existence of a legal quorum at the meeting. If a General Meeting was convened on which at least one item on the agenda may be put to the vote in the proxy statement as mentioned above, the shareholders may vote at that same General Meeting by proxy statement also regarding the other items on the agenda. |
| 45. | The chairman of the General Meeting will be responsible for writing the minutes of the General Meeting and all the resolutions that will be adopted. |
| 46. | The provisions of these Articles regarding General Meetings shall apply, mutatis mutandis, also to class meetings. |
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Directors
Powers, Number of Directors, Composition and Election
| 47. | The Board of Directors shall have rights and exercise rights and powers and/or responsibilities as granted to the Board of Directors in the Articles and the provisions of the laws, including determining the policy of the Company and supervising the exercise of powers and responsibilities of the general manager. The Board of Directors may exercise any power of the Company that has not been specifically conferred in the Articles or in the laws to another organ in the Company. |
| 48. | The number of the directors in the Company shall not be less than five (5) and not more than eleven (11), and it shall include two external directors. |
| 49. | The directors of the Company, with the exception of external directors, will be appointed at an annual meeting by a simple majority for a term of office that will continue until the next annual meeting at which a director/s will be appointed in his/their place. |
| A director whose term of office has ended may be re-elected. | |
| 50. | A General Meeting shall be entitled to terminate the term of office of a director early solely by a resolution adopted by a simple majority (except for external directors whose term of office may be terminated solely in the manner determined in the law). |
| 51. | The term of office of a director shall continue until one of the following events occurs: |
| 51.1. | The director was replaced by the annual shareholders’ meeting as stated above. | |
| 51.2. | The director submitted his resignation to the Company. | |
| 51.3. | His term of office was terminated by ordinary resolution of the shareholders whether at the annual meeting or at a special meeting of the shareholders. | |
| 51.4. | The director passed away, has been found to be insane, has been declared bankrupt or a receiver has been appointed for his assets. |
| 52. | If a director terminates his term of office (the “Retiring Director”), the remaining directors will be entitled to continue to act as long as the number of the remaining directors does not fall below the minimum number of directors determined in section 46 above. |
| 53. | The Board of Directors has the right to appoint a director, in order to fill the place of a director who retired in a written resolution and by a majority of 75% of the members of the Board of Directors. The appointment of a director by the Board of Directors shall be valid until the next annual meeting or until the end of his term in accordance with the provisions of the Articles and he may be re-elected by a simple majority by the General Meeting, unless his term was terminated by the board or by the General Meeting. |
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The General Meeting may by ordinary resolution cancel the appointment of any director appointed by the Board of Directors according to this section.
| 54. | The term of office of a director shall begin on the day of his appointment by the General Meeting or by the Board of Directors, or at a later date if such a date was set in the appointment resolution of the General Meeting or the Board of Directors. |
| 55. | Any change to sections 45 - 52 above shall require a special majority vote. |
| 56. | The Company shall not present to the General Meeting for approval the appointment or extension of the term of office of a director and/or general manager of the Company or of a subsidiary unless prior to the summons of the meeting to appoint the director and/or the general manager for the first time, all the approvals required by law to appoint the candidate as director and/or general manager of the Company will be received by the Company to the satisfaction of the Company, including, but not limited to, the approval of the Ministry of Health and the Israel Police (hereinafter: the “Approvals”), and in the case of extending his term of office at an annual meeting the director and/or the general manager will declare that after receiving the approvals and as of the date of the extension, no change has occurred which is relevant to the approvals granted. |
| 57. | At the annual meeting of the Company the general manager of the Company shall declare that all the necessary approvals from the Medical Cannabis Unit to the Company as set forth in sections 15, 16 and 56 above, exist and are valid as of the date of the General Meeting and no change has occurred in the conditions of the eligibility of the dealers, managers, material shareholders and stakeholders from the time the approvals were granted. |
Payment of Remuneration
| 58. | Reserved. |
| 59. | The Company will determine provisions regarding the payment of remuneration to directors in accordance with the law. |
The Chairman of the Board of Directors
| 60. | The Board of Directors will elect one of its members to serve as chairman of the Board of Directors. The Board of Directors may replace the Chairman of the Board of Directors from time to time. The Chairman of the Board of Directors will be present at the meetings of the Board of Directors, and if he is not present at the meeting within fifteen (15) minutes of the time set for the meeting, the directors will elect one of the directors present at this meeting to be the chairman at this meeting. |
Actions of the Directors
| 61. | The Board of Directors will convene to manage the corporation’s business, conduct meetings and adjourn them at its discretion, subject to the Articles. |
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Unless otherwise determined by the Board of Directors, a written notice of each meeting of the Board of Directors and the agenda of the issues to be discussed at the meeting shall be given to all directors at least seventy-two (72) hours (or shorter notice to which all members of the Board of Directors may agree) prior to the meeting. The directors may waive the need for notice either in advance or ex post facto.
Legal Quorum
| 62. | No resolution will be adopted at the meeting of the Board of Directors unless there is a legal quorum of directors at the beginning of the meeting. The legal quorum for meetings shall exist in the presence, by themselves or by their substitutes, of at least half of the directors in office at that time, by themselves or by a substitute director. |
If half an hour has passed from the date set for the meeting and no valid quorum has been reached, the meeting may be adjourned to another date to be determined by the chairman of the board of the Board of Directors and in his absence, by the directors present at the meeting, provided all directors have been notified of the new time at least twenty-four (24) hours before the time of the adjourned meeting. The legal quorum for the commencement of the adjourned meeting of the Board of Directors shall be three members of the Board of Directors.
Ways of Attending Meetings
| 63. | Some or all of the directors may hold meetings of the Board of Directors using computerized means of communication, telephone communication or any other means of communication, which allows the directors to communicate with each other with the attendance of all of them, provided that all directors have been delivered an advance notice indicating the time and manner of convening the meeting. Any resolution adopted by the Board of Directors at such meeting, is subject to the provisions of the Articles, it will be registered and signed by the Chairman (and in his absence by the Chairman of the meeting) and it shall be valid as if it was adopted at a meeting of the Board of Directors that was properly convened and conducted. |
| 64. | Reserved. |
| 65. | A written resolution signed by all the directors, or a resolution in which all the directors have agreed (in writing by mail or electronic mail) not to convene, shall be deemed for any purpose as a resolution lawfully adopted in the meeting of a Board of Directors that was properly convened and conducted. |
| Such a resolution may be signed in a number of separate copies, each signed by one or more directors. Such written resolution (including facsimile) shall be valid from the last date that appears on the resolution, or if signed in two copies or more, from the last date that appears on the copies. | |
| 66. | When exercising voting rights, each director shall have one vote. Resolutions of the Board of Directors will be adopted by a simple majority, unless otherwise determined in the Articles or in the laws. In the event that the votes are equal, the chairman of the Board of Directors will not have a casting vote and the proposal will be considered as rejected. |
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Substitute Director
| 67. | Subject to the law, a director may from time to time appoint in writing any person who is qualified to serve as a director, to serve as his substitute director (hereinafter: “Substitute Director”), and to terminate the term of office of such person. The appointment of a substitute director does not negate the responsibility of the appointing director and such responsibility will continue to apply to the appointing director taking into account the circumstances of the appointment. |
Substitute directors shall be entitled during their office to receive notices of the convening of meetings of the Board of Directors and to participate and vote at meetings in which the director who appointed them is not present and to exercise the powers, rights and obligations of the appointing director.
The letter of appointment of a substitute director must be delivered to the chairman of the Board of Directors no later than at the time for opening the first meeting of the Board of Directors in which the substitute director is present.
Committees
| 68. | The Board of Directors may appoint committees of the Board of Directors and appoint members to these committees subject to the laws. A resolution that was adopted or an action that was made by such committee shall be deemed to be a resolution or action of the Board of Directors unless it was expressly determined otherwise by the Board of Directors or in the laws in relation to a particular matter or a particular committee. |
| 69. | Meetings of committees will be conducted (including summoning the meeting, electing a chairman and voting) in accordance with the provisions of the Articles related to conducting meetings of the Board of Directors, to the extent applicable. |
Approval of Transactions with Related Parties
| 70. | Transaction between the Company and an officer, including transactions concerning the compensation of officers who are not directors and transactions between the Company and a third party in which an officer has a personal interest, which is not an extraordinary transaction (as defined in the law) will only require the approval of the Board of Directors or of a committee authorized by the Board of Directors. |
Recording the Resolutions and their Validity
| 71. | The resolutions of the Board of Directors shall be written in the book of minutes of the Company, as required by the laws, and they shall be signed by the chairman or the chairman of that meeting. Signed minutes will be considered as an accurate description of the meeting and the resolutions adopted in it. |
| 72. | All the actions that were made in good faith by a meeting of the Board of Directors or by a committee of the Board of Directors or by any person acting as a director, they shall be valid even if it is subsequently discovered that there was a defect in the appointment of a director or such person acting as mentioned or that they or one of them were incompetent, as if any such person was lawfully appointed and competent to be a director. |
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The Company’s General Manager
| 73. | The Board of Directors shall appoint at least one general manager for a period and under terms that the Board of Directors sees fit. |
| 74. | The General Manager is responsible for the management and execution of powers in the framework of the policy determined by the Board of Directors, and he will be subject to the supervision of the Board of Directors. The General Manager shall be entitled, subject to the approval of the Board of Directors, to delegate his powers to another, who is subordinate to him. |
Exemption, Indemnification and Insurance of Officers
Insurance of Officers
| 75. | The Company may insure officers in it to the maximum extent permitted by law. |
| 76. | Notwithstanding the aforesaid, the Company may enter into a contract to insure the liability of an officer of the Company for any liability imposed on him due to an action he has taken by virtue of him being an officer of the Company, for any of the following: |
| 76.1. | A breach of the duty of care towards the Company or towards another person; | |
| 76.2. | A breach of fiduciary duty towards the Company, provided that the officer acted in good faith and had reasonable grounds to believe that the action would not harm the Company’s best interests; | |
| 76.3. | A financial liability that will be imposed on him in favor of another person; | |
| 76.4. | Another action permitted to be insured under the Companies Law; | |
| 76.5. | Expenses incurred by the officer or that he was charged in connection with an administrative enforcement proceeding conducted in his case, including reasonable litigation expenses, including attorney’s fees. | |
| In this paragraph- |
| (A) | “Administrative Enforcement Procedure” - an administrative enforcement procedure in accordance with the provisions of any law, including the Streamlining of Enforcement Procedures Law and the Securities Law, including an administrative petition or appeal in connection with the said procedure; |
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| (B) | “Streamlining of Enforcement Procedures Law” - the Streamlining of Enforcement Procedures Law at the Securities Authority (Legislative Amendments), 5771- 2011, as shall be updated from time to time; |
| 76.6. | Payment to a victim of a breach as mentioned in section 52 (54) of the Securities Law, as amended by the Streamlining of Enforcement Procedures Law (“Payment to a Victim of a breach”); | |
| 76.7. | Any other event for which it is permitted or it will be permitted according to law to insure the liability of an officer of the Company. |
Indemnification of Officers
| 77. | The Company may indemnify its officers to the maximum extent permitted by law. Without derogating from the aforesaid, the Company may indemnify an officer in it due to an obligation or expense imposed on him or incurred due to an action, which he did by virtue of him being an officer in it, as set forth hereafter: |
| 77.1. | A financial liability imposed on him in favor of another person according to a judgment, including a judgment granted in a settlement or an arbitrator’s judgment that was approved by court; | |
| 77.2. | Reasonable litigation expenses, including attorney’s fees, incurred by an officer due to an investigation or proceeding conducted against him by an authority authorized to conduct an investigation or proceeding, to the extent that the investigation or proceeding (1) ended without an indictment against the officer, or (2) ended with the imposition of a financial liability as an alternative to a criminal proceeding in an offense that does not require proof of criminal intent, all in accordance with the law; | |
| 77.3. | Reasonable litigation expenses, including attorney’s fees, incurred by the officer or that he was charged by a court, in a proceeding filed against him by the Company or on its behalf or by another person, or in a criminal charge from which he was acquitted, or a criminal charge in which he was convicted for an offense that does not require proving criminal intent; | |
| 77.4. | Expenses incurred by the officer or that he was charged in connection with an administrative enforcement proceeding conducted in his case, including reasonable litigation expenses, including attorney’s fees; | |
| 77.5. | Payment to a victim of a breach; | |
| 77.6. | Any liability or other expense for which is permitted or will be permitted according to the laws to indemnify an officer. |
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Indemnification in Advance
| 78. | The Company may give an undertaking in advance to indemnify an officer in it in the following cases: |
| 78.1. | Due to a liability or expense as set forth in section 72.1 above, provided that the indemnification undertaking will be limited to events which in the opinion of the Board of Directors are expected in light of the Company’s actual activity at the time of the indemnification undertaking and to the amount or to the criterion that the Board of Directors determined are reasonable in the circumstances of the matter. The indemnification undertaking shall state the said events and the amount or the criterion. | |
| 78.2. | Matters set forth in sections 72.2, 72.3, 72.4, 72.5 and 72.6. |
Retroactive Indemnification
| 79. | The Company may indemnify an officer in it ex post facto in the cases set forth in section 73, subject to the provisions of any law. |
Exemption for Officers
| 80. | The Company may exempt, in advance and ex post facto, an officer in it from his liability, in whole or in part, due to damage due to a breach of the duty of care towards the Company, to the maximum extent permitted by law. |
Exemption, Indemnification and Insurance - General
| 81. | The above provisions regarding exemption, indemnification and insurance do not limit the Company in any way in its entering into a contractual engagement with respect to insurance and/or granting indemnification and/or exemption of anyone that is not an office in the Company, including employees, contractors or consultants of the Company, all subject to any law; |
| 82. | The provisions of sections 71 to 77 of the Articles of Association shall apply, mutatis mutandis, also in relation to the granting of an exemption and insurance and/or indemnifying persons who serve on behalf of the Company as officers in companies controlled by the Company or in which the Company has a stake. |
| 83. | It is clarified that in this chapter, an obligation in relation to an exemption, indemnification and insurance as mentioned for an officer in a Company will be valid even after the termination of the officer’s term of office in the Company. |
Appointing an Auditor
| 84. | Subject to the provisions of the law, the annual meeting shall appoint an auditor for a period ending at the next annual meeting, or for a longer period, however not for a period ending later than the third annual meeting than the one in which the auditor was appointed. The auditor will be able to be re-elected. |
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Subject to the laws, the terms of office of the Company’s auditor, including obligations and payments to the auditor, shall be determined by the Board of Directors, at its discretion, or by a committee of the Board of Directors if such decision was given to a committee to decide. The Board of Directors will report to the annual meeting on the remuneration of the auditor.
Signature Rights
| 85. | The signature rights in the Company will be determined from time to time by the Board of Directors. |
Distributions
| 86. | The Board of Directors may decide on a distribution, subject to the provisions of the law and the Articles. |
| 87. | When the Board of Directors decides on the distribution of dividends (in shares, cash or dividends in kind), the dividends will be paid in the same way in respect of all the shares that confer a right to receive dividends on the day the decision is adopted (or later, as shall be determined by the Board of Directors) subject to the preferred rights (if existing) of different classes of shares in relation to the distribution. |
| 88. | A notice of distribution shall be given to all registered shareholders whose shares confer rights to participate in the distribution, as to be determined by the Board of Directors. |
| 89. | The Board of Directors will decide on the method of payment in the distribution. A receipt of a person whose name is registered in the register of shareholders as the holder of any share, or in the case of a joint holders - of one of joint holders, will constitute confirmation regarding all payments made in connection with that share and in respect of which a receipt was given. |
| Any dividend amount not claimed after it has been declared may be invested or otherwise utilized by the directors in favor of the Company until it is claimed. An unclaimed dividend will not accrue interest and linkage differences. | |
| 90. | Should a distribution require the presentation of an agreement between the Company and the shareholders in accordance with the law, the Board of Directors will be entitled to appoint a representative who will represent all the shareholders entitled to the distribution and such appointment shall be deemed an appointment made by the participating shareholders. |
| 91. | For the purpose of implementing a resolution concerning distribution, the Board of Directors will resolve any difficulties that may arise due to the distribution as it sees fit, including determining the value of assets included for the distribution, and to determine that cash payments will be paid to shareholders based on the value that was determined and to determine conditions regarding fractions of shares and regarding the non- payment of small sums. |
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Redeemable Securities
| 92. | The Company will be entitled to issue redeemable securities that are or can be if the Company so wishes redeemable under conditions and in a manner to be determined by the Board of Directors. Redeemable securities will not be considered as part of the capital of the Company, unless otherwise determined in the law. |
Donations
| 93. | The Company may make donations in reasonable amounts for purposes that the Board of Directors shall determine as being appropriate, even if the donation is not within the scope of business considerations in order to maximize the Company’s profits. |
Notices
| 94. | Subject to the laws, notice or any other document that the Company will send, which it may or is required to give in accordance with the provisions of the Articles or laws, will be sent by it to each person in one of the following ways according to the Company’s choice: in person, by sending by post, by transmission by fax or by electronic form. |
Any notice or other document sent will be deemed to have been delivered on the third day following the day of they were sent if sent by registered mail or by regular mail or on the day after it was sent if delivered in person, fax or in an electronic form.
If proof of delivery shall be required, it will suffice to prove that the letter or document sent bears the correct postal address, e-mail or fax number registered in the register of shareholders or any other address, fax or e-mail that the shareholder gave in writing to the Company as the address for sending notices or other documents.
Without derogating from the aforesaid subject to the provisions of the laws a notice to a shareholder may submitted as a general notice to all the shareholders, subject to the provisions of the laws and regulations in any stock exchange on which the Company’s shares are listed.
In cases where a notice is required of a predetermined number of days or a notice that remains in force for a fixed period, the day on which the notice was sent will not be counted while the day of the meeting or the last day of the fixed period will be included in the count.
Subject to the provisions of the laws, the Company is not required to send notices to a shareholder who is not registered in the register of shareholders or who has not provided to the Company with an accurate and sufficient address for the delivery of notices.
| 95. | All the notices that must be given to the shareholders shall be given in relation to the shares whose holders are joint holders, to the person whose name is first mentioned in the register of shareholders as a holder, and any notice given in this way shall be sufficient notice to all shareholders holding the said share. |
| 96. | Any notice or other document delivered or sent to a shareholder in accordance with these Articles shall be deemed to have been lawfully delivered and sent in respect of the shares held by him (whether in respect of shares held by him alone or in partnership with others), even if that shareholder died at that time or became bankrupt (whether or not the Company knew of his death or bankruptcy), until another person registers in the register of shareholders in his place as their holder or as their joint holder, and such delivery shall be deemed sufficient delivery to any heir, guardian, person in charge, official and any other person (if any) who has an interest in the shares. |
| 97. | An accidental omission in giving notice to any shareholder or failure to receive a notice will not result in the cancellation of proceedings based on that notice. |
***
| 19 |
Exhibit 4.1
Execution Copy
arrangement agreement
BY AND AMONG
INTERCURE LTD.,
CANNDOC ACQUISITION SUBCO LTD.,
subversive REAL ESTATE acquisition REIT LP,
SUBVERSIVE REAL ESTATE ACQUISITION REIT (GP) Inc., and
SUBVERSIVE REAL ESTATE SPONSOR LLC,
As Representative
DATED AS OF FEBRUARY 9, 2021
Table of Contents
| Page | ||
| ARTICLE 1 INTERPRETATION | 2 | |
| 1.1 | Definitions | 2 |
| 1.2 | Amendment and Restatement | 12 |
| 1.3 | Singular, Plural, etc. | 12 |
| 1.4 | Deemed Currency | 12 |
| 1.5 | Headings, etc. | 13 |
| 1.6 | Date for any Action | 13 |
| 1.7 | Governing Law | 13 |
| 1.8 | Attornment | 13 |
| 1.9 | Schedules and Exhibits | 13 |
| ARTICLE 2 THE BUSINESS COMBINATION | 13 | |
| 2.1 | Business Combination Steps | 13 |
| 2.2 | Implementation Covenants | 15 |
| 2.3 | Board of Directors and Senior Officers | 18 |
| ARTICLE 3 ARRANGEMENT | 19 | |
| 3.1 | The Arrangement | 19 |
| 3.2 | The Interim Order | 19 |
| 3.3 | The Company Meeting; Information Circular | 20 |
| 3.4 | The Final Order | 21 |
| 3.5 | Court Proceedings | 21 |
| 3.6 | Arrangement Effective Time | 21 |
| 3.7 | U.S. Federal Securities Law Matters | 22 |
| 3.8 | U.S. State Blue Sky Laws Applicable to Subversive Limited Partners that are U.S. Persons | 22 |
| 3.9 | Share Exchange and Payment under the Arrangement | 23 |
| 3.10 | U.S. Tax Matters. | 23 |
| ARTICLE 4 REPRESENTATIONS AND WARRANTIES | 24 | |
| 4.1 | Representations and Warranties of Intercure | 24 |
| 4.2 | Representations and Warranties of Subversive | 37 |
| 4.3 | Representations and Warranties of the General Partner | 40 |
| 4.4 | Survival | 41 |
| ARTICLE 5 COVENANTS | 41 | |
| 5.1 | Conduct of Business by the Parties | 41 |
| 5.2 | Representations and Warranties | 41 |
| 5.3 | Notice of Material Change | 42 |
| 5.4 | Non-Solicitation | 42 |
| 5.5 | Mutual Negative Covenants | 43 |
| 5.6 | Intercure Negative Covenants | 44 |
| 5.7 | Support of Business Combination | 46 |
| 5.8 | Other Filings | 46 |
| 5.9 | Additional Agreements | 46 |
| 5.10 | Waiver of Access to Escrow Account | 47 |
| 5.11 | Access | 47 |
| -i- |
TABLE OF CONTENTS
(continued)
| Page | ||
| ARTICLE 6 CONDITIONS AND CLOSING MATTERS | 48 | |
| 6.1 | Mutual Conditions Precedent | 48 |
| 6.2 | Additional Conditions Precedent to the Obligations of Intercure | 49 |
| 6.3 | Additional Conditions Precedent to the Obligations of Subversive | 50 |
| 6.4 | Closing Matters | 51 |
| ARTICLE 7 TERMINATION AND AMENDMENT | 52 | |
| 7.1 | Termination | 52 |
| 7.2 | Effect of Termination | 52 |
| 7.3 | Expenses | 52 |
| 7.4 | Amendment | 52 |
| 7.5 | Waiver | 52 |
| ARTICLE 8 GENERAL | 53 | |
| 8.1 | Notices | 53 |
| 8.2 | Assignment | 54 |
| 8.3 | Complete Agreement | 54 |
| 8.4 | Further Assurances | 54 |
| 8.5 | Severability | 54 |
| 8.6 | Counterpart Execution | 54 |
| 8.7 | Investigation by Parties | 54 |
| 8.8 | Public Announcement; Disclosure and Confidentiality | 54 |
| 8.9 | Representative. | 55 |
| Schedule A PLAN OF ARRANGEMENT | A-1 | |
| -ii- |
ARRANGEMENT AGREEMENT
THIS AGREEMENT is made as of February 9, 2021,
BY AND BETWEEN:
INTERCURE LTD.,
a company incorporated under the laws of the State of Israel, privately held limited liability company number 512051699
(“Intercure”)
-and-
CANNDOC ACQUISITION SUBCO LTD.,
a corporation incorporated under the laws of the Province of British Columbia
(“INTERCURE BC SUB”)
-and-
Subversive Real Estate Acquisition REIT LP,
a limited partnership established under the laws of the Province of Ontario
(“Subversive”)
-and-
SUBVERSIVE REAL ESTATE ACQUISITION REIT (GP) INC.,
a corporation incorporated under the laws of the Province of British Columbia
(“General Partner”)
-and-
SUBVERSIVE REAL ESTATE SPONSOR LLC,
a limited liability company organized under the laws of the State of Delaware
(“Representative”)
WHEREAS, Subversive and Intercure are parties to a Definitive Agreement dated January 3, 2021 (the “Prior Agreement”);
WHEREAS, Subversive and Intercure desire to amend and restate the Prior Agreement in its entirety and accept the rights and covenants herein in lieu of their rights and covenants under the Prior Agreement;
WHEREAS, on the Effective Date, by way of a statutory plan of arrangement under the provisions of the Business Corporations Act (British Columbia), (i) Intercure BC Sub shall acquire all of the Subversive Limited Partnership Units, and (ii) Intercure BC Sub shall acquire all of the shares of the General Partner.
WHEREAS, in connection with the consummation of the Arrangement the Parties intend to list the Intercure Shares on Nasdaq and the TSX, and the Intercure Shares will continue to be listed on TASE;
| -1- |
WHEREAS, the board of directors of Intercure has: (i) determined that this Agreement, the Arrangement and the other transactions contemplated by this Agreement are fair to, and in the best interests of, Intercure and its shareholders; (ii) approved this Agreement, the Arrangement and the other transactions contemplated hereby; (iii) determined to recommend that the shareholders of Intercure approve this Agreement, the Arrangement and the other transactions contemplated hereby; and (iv) confirmed, in accordance with section 282 of the Companies Law, that subject to the requisite shareholder approval at the shareholders’ meeting, all approvals required for the Arrangement and the other transactions contemplated hereby have been obtained;
WHEREAS, on its behalf and on Subversive’s, the board of directors of the General Partner of Subversive has: (i) determined that this Agreement, the Arrangement and the other transactions contemplated by this Agreement are fair to, and in the best interests of, the General Partner and its shareholder, and Subversive and the Subversive Limited Partners and that, considering the financial position of the Intercure and Subversive, no reasonable concern exists that Intercure will be unable to fulfill the obligations of either of the General Partner or Subversive to its creditors; (ii) approved this Agreement, the Arrangement and the other transactions contemplated hereby; and (iii) determined to recommend that the Subversive Limited Partners approve this Agreement, the Arrangement and the other transactions contemplated hereby;
WHEREAS, the Arrangement is intended to constitute the “qualifying transaction” (as such term is defined in the Exchange Listing Manual, the “Qualifying Transaction”) of Subversive; and
WHEREAS, certain Intercure Shareholders have concurrently with the execution and delivery of this Agreement entered into a Support and Lock-Up Agreement with Subversive.
NOW THEREFORE in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the Parties, the Parties covenant and agree as follows:
ARTICLE
1
INTERPRETATION
1.1 Definitions
In this Agreement, unless there is something in the subject matter or context inconsistent therewith, the following terms shall have the following meanings, respectively:
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by or is under common control with such Person. As used herein, the term “control” means (a) the power to vote at least 10% of the voting power of a Person, or (b) the possession, directly or indirectly, of any other power to direct or cause the direction of the management and policies of such a Person, whether through ownership of voting securities, by contract or otherwise, or (c) as defined in the Israeli Securities Law;
“Agreement”, “this Agreement”, “herein”, “hereto”, and “hereof” and similar expressions refer to this arrangement agreement, including the schedules and exhibits attached hereto, as the same may be amended or supplemented from time to time;
| -2- |
“Arrangement” means the Arrangement pursuant to section 288 of the BCBCA set forth in the Plan of Arrangement as supplemented, modified or amended, and not any particular article, section or other portion thereof;
“Arrangement Dissent Rights” means the rights of dissent in respect of the Arrangement described in the Plan of Arrangement;
“Balance Sheet” has the meaning ascribed thereto in Section Error! Reference source not found. hereof;
“BCBCA” means the Business Corporations Act (British Columbia), S.B.C. 2002 c. 57, as amended;
“Business Combination” means the Arrangement and the other transactions contemplated by this Agreement, as detailed in this Agreement, through which the businesses of Intercure and Subversive will be combined, including the Financing, the Arrangement, the Nasdaq Listing, the TSX Listing, the TASE listing and the Director Appointments;
“Business Day” means any day, excluding Saturday or Sunday, on which banking institutions are open for business in Toronto, Ontario, Canada, Tel Aviv, Israel, and New York, New York, United States of America;
“Cannabis” means all parts of the plant Cannabis sativa L. containing more than 0.3 percent THC, whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. The term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination;
“Cannabis License” means any temporary, provisional, term limited, or permanent permit, license, registration, variance, clearance, consent, permit, commission, franchise, exemption, order, authorization, or approval from any Governmental Authority that regulates the cultivation, manufacture, processing, marketing, sale or distribution of Cannabis products, whether for medical or recreational use;
“Claim” has the meaning ascribed thereto in Section 5.10 hereof;
“commercially reasonable efforts” has the meaning ascribed thereto in Section 5.9 hereof;
“Companies Law” means the Israeli Companies Law, together with the rules and regulations promulgated thereunder;
“Completion Deadline” means the latest of (a) April 8, 2021, (b) the outside date for completion of the Qualifying Transaction, if extended by Subversive beyond April 8, 2021, in accordance with applicable Laws, which shall not be later than September 30, 2021 without the prior written consent of Intercure, and (c) such later date as may be mutually agreed between the Parties in writing;
“Confidential Information” has the meaning ascribed thereto in Section 8.8(b) hereof;
| -3- |
“Court” means the Supreme Court of British Columbia, sitting in Vancouver, British Columbia, or other court as applicable;
“Debt Instrument” has the meaning ascribed thereto in Section 4.1(w) hereof;
“Depositary” means such Person as Subversive may appoint to act as depositary in relation to the Arrangement;
“Designated Intercure Convertible Securities” means a total of 13,388,800 Intercure Convertible Securities consisting of (i) 3,818,800 Intercure Convertible Securities designated as vested ESOP-A, (ii) 8,570,000 Intercure Convertible Securities designated as Options-A1, and (iii) 1,000,000 Intercure Convertible Securities designated as Options-A2;
“Director Appointments” means, subject to the completion of the Arrangement, the appointment to the board of directors of Intercure of additional directors who are currently not directors of Intercure, as more particularly set out in Section 2.3;
“Documents” means this Agreement, the Arrangement Certificate, the Prospectus, the Information Circular, the U.S. Registration Statement, the U.S. Resale Registration Statement, the Support and Lock-Up Agreements, the Management Lock-Up Agreements, the Indemnification Agreement, and the Sponsor Lock-Up and Forfeiture Agreement;
“DRS Statement” means a statement evidencing a shareholding position under the Direct Registration System;
“Due Diligence Sessions” means one or more due diligence sessions to be held by the agents appointed by Subversive to act as the sole and exclusive agents of Subversive to effecting the Financing, and pursuant to which Intercure’s directors, senior management and auditors were made available to answer questions which such agents may have;
“Effective Date” means the date on which the Arrangement becomes effective;
“Effective Time” means 10 a.m. (Vancouver time) on the Effective Date, or such other time as Intercure and Subversive determine;
“Environmental Laws” has the meaning ascribed thereto in Section 4.1(s) hereof;
“Escrow Account” means the escrow account of Subversive established and maintained by the Escrow Agent, which holds in escrow the gross proceeds of the initial public offering of the Subversive Class A Restricted Voting Units, including the gross proceeds of the over-allotment option;
“Escrow Agent” means Olympia Trust Company, in its capacity as escrow agent, under the Escrow Agreement, and its successors and permitted assigns;
“Escrow Agreement” means the escrow agreement dated January 8, 2020, among Subversive, the Escrow Agent, Canaccord Genuity Corp. and Echelon Wealth Partners Inc.;
“Exchange Listing Manual” means the Neo Exchange Inc. Listing Manual;
“Filed Documents” has the meaning ascribed thereto in Section 4.1(kk) hereof;
| -4- |
“Final IPO Prospectus” means the final long-form prospectus of Subversive dated December 23, 2019 in connection with its initial public offering of Subversive Class A Restricted Voting Units;
“Final Order” means the final order of the Court pursuant to Section 291 of the BCBCA approving the Arrangement;
“Financing” means the private placement of Subversive Limited Partnership Units to the PIPE Investors by Subversive on the Effective Date pursuant to the Subscription Agreements;
“Fully Diluted Intercure Shares” means an aggregate of 133,477,700 Intercure Shares (comprising the number of Intercure Shares issued or deemed to be issued, as applicable, and outstanding as of the date of this Agreement assuming the exercise or conversion, as applicable, of all outstanding Designated Intercure Convertible Securities);
“Fundamental Representations” means the Intercure Fundamental Representations and the Subversive Fundamental Representations;
“General Partner” has the meaning ascribed thereto in the preamble of this Agreement;
“General Partner Common Shares” means the one hundred (100) common shares issued and outstanding in the capital of the General Partner;
“Going Public Transaction” means (i) the initial public offering of any class of securities of Intercure or a direct listing application of Intercure whereby any class of securities of Intercure becomes listed or quoted on a recognized Canadian or United States stock exchange, or (ii) a reverse takeover, amalgamation, merger, statutory arrangement, share exchange or similar transaction involving Intercure and a reporting issuer in a province of Canada or state of the United States and which results in the securities of the resulting issuer from such transaction becoming listed or quoted on a recognized Canadian or United States stock exchange;
“Governing Documents” means, in respect of each Party, as applicable, its certificate, its notice of articles and articles as amended, its memorandums and/or articles of incorporation/association, as amended, its by-laws, as amended, or its limited partnership agreement, as amended;
“Government Authority” means any applicable foreign, national, provincial, local or state government, any political subdivision or any governmental, judicial, public or statutory instrumentality, court, tribunal, agency (including those pertaining to health, safety or the environment), authority, body or entity, or other regulatory bureau, authority, body or entity having legal jurisdiction over the activity or Person in question and, for greater certainty, includes the NEO, TSX, OSC, TASE, ISA, the SEC and Nasdaq;
“IFRS” means International Financial Reporting Standards as issued by the International Accounting Standards Board applicable as at the relevant date;
“IMCA” means the Israeli Medical Cannabis Agency;
“Improvements” has the meaning ascribed thereto in Section 4.1(hh)(ii) hereof;
“Indemnification Agreement” means the indemnification agreement pursuant to which Intercure indemnifies Subversive and its Subsidiaries, Affiliates, directors, officers and advisers as set forth therein;
| -5- |
“Information Circular” means the notice of the Subversive Meeting to be sent to the Subversive Limited Partners, and the accompanying management information circular to be prepared in connection with the Subversive Meeting, together with any amendments or supplements thereof in accordance with the terms of this Agreement;
“Intercure” has the meaning ascribed thereto in the preamble of this Agreement;
“Intercure Agent Warrants” means the options of Intercure issued to dealers and agents in connection with any prior financings of Intercure of which, as of the date of this Agreement, there are no (0) Intercure Agent Warrants issued and outstanding;
“Intercure BC Sub” has the meaning ascribed thereto in the preamble of this Agreement;
“Intercure Convertible Securities” means, collectively, the Intercure Options, the Intercure Warrants and the Intercure Agent Warrants;
“Intercure Data” means all sensitive data contained in the systems, databases, files or other records of Intercure or any Intercure Subsidiary and all other information and data compilations used by Intercure or any Intercure Subsidiary, whether or not in electronic form, including Personal Data;
“Intercure Disclosure Schedules” has the meaning given to such term in Section 4.1;
“Intercure Financial Statements” means, (a) the audited consolidated statement of comprehensive income, a statement of changes in equity and a statement of cash flows for financial years ended December 31, 2019, 2018 and 2017, together with the notes thereto and the auditors’ report thereon, (b) the unaudited (but reviewed) consolidated statement of financial position as at the end of September 30, 2020 and 2019, together with the notes thereto and (c) such other financial statements of Intercure and any business acquired by Intercure since December 31, 2016, as are required to be included in the Prospectus and/or the U.S. Registration Statement and/or the U.S. Resale Registration Statement pursuant to applicable Laws and all prepared in accordance with IFRS;
“Intercure Fundamental Representations” means Sections 4.1(a), (b), (c), (d), (e), (h), (i), (p) and (jj);
“Intercure Meeting” means a special meeting of the shareholders of Intercure to be held in order to seek shareholder approval for (a) this Agreement and the Arrangement and the other transactions contemplated herein (including the issuance of Intercure Shares in accordance with the terms of the Arrangement), (b) to consolidate the registered and issued share capital of Intercure by a ratio of 4.4492567:1 so that each 4.4492567 Intercure Shares shall be consolidated into one (1) new Intercure Share (the “Intercure Share Consolidation”), (c) assuming the Intercure Share Consolidation, to increase the registered share capital of Intercure by 55,048,671 additional ordinary shares (from 44,951,329 currently existing after the Intercure Share Consolidation to 100,000,000), (d) to approve the listing of the Intercure Shares on Nasdaq and TSX, as applicable, (e) to amend the Intercure Governing Documents to reflect the resolutions detailed herein and any additional amendments required to effect the transactions contemplated by this Agreement, (f) to appoint, subject to completion of the Arrangment, those new directors to the board of directors of Intercure as detailed in Section 2.3; (g) to amend the current complensation policy of Intercure to reflect certain directors and officers insurance thresholds required as a result of the transactions contemplated by this Agreement; and (h) any additional resolutions which may be required for the purpose of completing the Arrangement and the transactions contemplated thereby;
| -6- |
“Intercure Options” means the stock options to purchase Intercure Shares granted to Intercure’s directors, officers, employees, contractors and other eligible persons, of which, as of the date of this Agreement, there are 5,338,184 Intercure Options (prior to the Intercure Share Consolidation) issued and outstanding and 4,303,356 (prior to the Intercure Share Consolidation) that will be issued by the consummation of the Plan of Arrangement;
“Intercure Share Consolidation” has the meaning ascribed thereto in the definition of Intercure Meeting;
“Intercure Shareholder” means a registered holder of Intercure Shares, from time to time, and “Intercure Shareholders” means all such holders;
“Intercure Share Value” means the quotient of (i) $300,000,000 divided by (ii) the Fully Diluted Intercure Shares (which results in $2.247566455 prior to the Intercure Share Consolidation and $10.00 after the Intercure Share Consolidation);
“Intercure Shares” means the ordinary shares in the capital of Intercure;
“Intercure Subsidiaries” means the Intercure BC Sub, Canndoc Ltd., Canndoc CBD Ltd., and CannOlam Ltd.;
“Intercure Warrants” means the common share purchase warrants of Intercure of which, as of the date of this Agreement, there are 17,683,788 Intercure Warrants issued and outstanding (prior to the Intercure Share Consolidation);
“Interim Order” means the interim order of the Court contemplated by Section 3.2 of this Agreement and made pursuant to Section 291 of the BCBCA, providing for, among other things, the calling and holding of the Subversive Meeting, as the same may be amended by the Court, with the consent of Subversive;
“in writing” means written information including documents, files, software, records and books made available, delivered or produced to one Party by or on behalf of the other Party;
“ISA” means the Israel Securities Authorities;
“Israeli Registrar of Companies” means the Government Authority in the State of Israel responsible for the supervision, registration and enforcement over corporations in Israel;
“Israeli Securities Law” mean the Israeli Securities Law 1968;
“ITA” means the Israeli Tax Authority;
“Laws” means all laws, statutes, codes, ordinances, decrees, rules, regulations, by laws, statutory rules, principles of law, published policies and guidelines, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, including general principles of common and civil law, and terms and conditions of any grant of approval, permission, authority or license of any Government Authority, statutory body or self-regulatory authority, and the term “applicable” with respect to such Laws and in the context that refers to one or more Persons, means that such Laws apply to such Person or Persons or its or their business, undertaking, property or securities and emanate from a Government Authority (or any other Person) having jurisdiction over the aforesaid Person or Persons or its or their business, undertaking, property or securities;
| -7- |
“Leased Real Property” has the meaning ascribed thereto in Section 4.1(hh)(i) hereof;
“Letter of Transmittal” means a letter of transmittal to be sent to the Subversive Limited Partners for use in connection with the Arrangement and in order to deliver to the Subversive Limited Partners the Intercure Shares to which they are entitled after giving effect to the Arrangement;
“Management Lock-Up Agreement” means the voting support and lock-up agreements dated as of the date hereof between Subversive, Intercure and each Person that is a director of officer of Intercure set forth in Section 1.1 of the Intercure Disclosure Schedules;
“Material Adverse Effect” means any event, change or effect that is or could reasonably be expected to be materially adverse to the financial condition, operations, assets, liabilities, or business of a Party and its Subsidiaries, considered as a whole, provided, however, that a Material Adverse Effect shall not include an adverse effect resulting from general economic, financial, currency exchange, securities or commodity market conditions in Canada, the United States or Israel;
“Material Contract” has the meaning ascribed thereto in Section 4.1(r)(i) hereto;
“material fact” has the meaning ascribed thereto in the Securities Act (Ontario) as the same has been and may hereafter from time to time be modified, and/or (as applicable) the meaning ascribed to “Misleading item” in the Israeli Securities Law, which includes something that is likely to mislead a reasonable investor, and any matter the omission of which is likely to mislead a reasonable investor;
“Minimum Cash Amount” has the meaning ascribed thereto in Section 6.2(d) hereof;
“Nasdaq” means The Nasdaq Stock Market LLC;
“Nasdaq Listing” means the listing of Intercure Shares on Nasdaq;
“NEO” means the Neo Exchange Inc.;
“OSC” means the Ontario Securities Commission;
“Party” means each of Intercure, Intercure BC Sub, Subversive, General Partner and Representative individually, and together, the “Parties”;
“Per Unit Arrangement Consideration” means a number of Intercure Shares equal to the quotient of (i) $10, divided by (ii) the Intercure Share Value;
“Person” includes any individual, firm, partnership, joint venture, venture capital fund, association, trust, trustee, executor, administrator, legal personal representative, estate, group, body corporate, corporation, unincorporated association or organization, Government Authority, syndicate or other entity, whether or not having legal status;
| -8- |
“Personal Data” means all data in the possession, custody or control of Intercure or any Intercure Subsidiary that identifies or locates a natural person or that, in combination with other reasonably available data, can reasonably be used to identify or locate a natural person;
“PIPE Investors” means purchasers of Subversive Limited Partnership Units in the Financing pursuant to the Subscription Agreements;
“PIPE Securities” means the Intercure Shares ultimately issued to PIPE Investors in exchange for their Subversive PIPE Securities in the Arrangement;
“Plan” means the employee share option plan duly adopted by Intercure in March 2015;
“Plan of Arrangement” means the plan of arrangement, substantially in the form appended hereto as Schedule A, and any amendments, modifications or supplements thereto made in accordance with the terms thereof or made at the direction of the Court in the Final Order;
“Prior Agreement” has the meaning ascribed thereto in the recitals of this Agreement;
“Privacy and Information Security Requirements” means (a) all applicable Laws relating to the Processing of Personal Data, data privacy or information security, to the extent applicable to Intercure or any Intercure Subsidiary and (b) the Payment Card Industry Data Security Standards;
“Process” or “Processing” means the collection, use, storage, distribution, transfer, import, export, protection (including security measures), disposal or disclosure or other activity regarding data (whether electronically or in any other form or medium);
“Prospectus” means the preliminary long form non-offering prospectus and/or final long form non-offering prospectus of Subversive, and any amendment thereto, as the context requires, containing disclosure regarding, among other things, Subversive, Intercure and the Business Combination (and any related matters), as the Qualifying Transaction of Subversive;
“Qualifying Transaction” has the meaning ascribed thereto in the recitals of this Agreement;
“Real Property Lease” means each contract whereby Intercure or an Intercure Subsidiary, subleases, licenses, or otherwise holds any rights to use or occupy any interest in real property;
“Reference Date” has the meaning ascribed thereto in Section 4.1(dd) hereof;
“Regulatory Approval” means any approval, consent, waiver, permit, order or exemption from any Government Authority having jurisdiction or authority over any Party or the Subsidiary of any Party which is required or advisable to be obtained in order to permit the Business Combination to be effected and “Regulatory Approvals” means all such approvals, consents, waivers, permits, orders or exemptions;
“Related Party” means one or more of the following: (a) each Intercure Shareholder who alone or together with such Person’s Affiliates, owns ten percent (10%) or more of the Intercure Shares, each officer, manager or director of Intercure or an Intercure Subsidiary, each family member of any Intercure Shareholder of the type referenced above or any director, manager or officer of Intercure or an Intercure Subsidiary, each trust for the benefit of any of the foregoing, and each Affiliate of any of the foregoing (other than Intercure or an Intercure Subsidiary); (b) a “control” holder, “interested party” and “substanial shareholder” as those terms are defined in the Companies Law and/or in the Israeli Securities Law; and (c) any person or entity of whom a control holder has a “personal interest” (as defined in the Companies Law) in, or in any transaction or action of such person or entity;
| -9- |
“Related Party Transaction” means any contract or arrangement or transaction between Intercure or an Intercure Subsidiary, on the one hand, and any Related Party, on the other hand;
“Reporting Jurisdictions” has the meaning ascribed thereto in Section 4.2(d) hereof;
“Rights Agent” means Olympia Trust Company;
“Rights Agreement” means the rights agency agreement dated January 8, 2020, between Subversive and the Rights Agent;
“SEC” means the United States Securities and Exchange Commission;
“Securities Act” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder;
“Securities Exchange Act” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder;
“Securities Laws” means the Securities Act (Ontario) and all the securities laws of each province and territory of Canada, except Quebec, the rules, regulations and policies of the NEO and the TSX, the Securities Act, the Securities Exchange Act, the rules and regulations of Nasdaq, the Israeli Securities Law and the rules, regulations and policies of the TASE;
“SPACs” means special purpose acquisition corporations;
“Sponsor” means Subversive Real Estate Sponsor LLC, a Delaware limited liability company;
“Sponsor Lock-Up and Forfeiture Agreement” means that certain Sponsor Lock-Up and Forfeiture Agreement, executed by Sponsor and the other parties thereto;
“Subscription Agreements” means the subcripton agreements pursuant to which, subject to the terms and conditions contained therein, the PIPE Investors agreed to purchase from Subversive, and Subversive agreed to sell to the PIPE Investors, Subversive Limited Partnership Units in the Financing, which Subversive Limited Partnership Units shall ultimately be acquired by Intercure BC Sub pursuant to the terms of the Arrangement;
“Subsidiary” means, (a) with respect to any Person, any corporation, limited liability company, partnership, association or business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company, partnership, association, or other business entity (other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than a corporation) if such Person or Persons shall be allocated a majority of limited liability company, partnership, association, or other business entity gains or losses or shall be or control any manager, managing director or general partner of such limited liability company, partnership, association or other business entity; and (b) “Subsidiary” and/or “Affiliated company” and/or “Associated company” as these terms are defined in the Israeli Securities Law;
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“Subversive” has the meaning ascribed thereto in the preamble of this Agreement;
“Subversive Arrangement Resolution” means a special resolution of the Subversive Limited Partners in respect of the Arrangement to be considered at the Subversive Meeting;
“Subversive Class A Restricted Voting Units” means the class A restricted voting units of Subversive issued pursuant to the Final IPO Prospectus, each consisting of one Subversive Restricted Voting Unit and one Subversive Right;
“Subversive Class B Units” means the Class B units of Subversive, each comprised of 1/100 of a Subversive Proportionate Voting Unit and one Subversive Right;
“Subversive Disclosure Schedules” has the meaning ascribed thereto in Section 4.2 hereof;
“Subversive Financial Statements” has the meaning ascribed thereto in Section 4.2(k)(i) hereof;
“Subversive Fundamental Representations” means Sections 4.2(a), (b), (c), (d), (i), (j), and (o);
“Subversive Limited Partners” means the limited partners of Subversive;
“Subversive Limited Partnership Units” means the Subversive Restricted Voting Units following the renaming of such class of securities to “Limited Partnership Units” pursuant to the Plan of Arrangement;
“Subversive Meeting” means the meeting of the Subversive Limited Partners, including any adjournment or postponement thereof in accordance with the terms of this Agreement, that is to be convened as provided by the Interim Order to consider, and if deemed advisable approve, the Subversive Arrangement Resolution;
“Subversive PIPE Securities” has the meaning ascribed thereto in the definition of “Financing” herein;
“Subversive Proportionate Voting Unit” means the proportionate voting limited partnership units of Subversive;
“Subversive Required Approval” means the approval of not less than two-thirds of the Subversive Limited Partners, voting together as a single class, present in person or by proxy at the Subversive Meeting;
“Subversive Restricted Voting Unit” means the restricted voting limited partnership units of Subversive;
“Subversive Right” means the rights to receive, for no additional consideration, one-eighth (1/8) of one Restricted Voting Unit following the Effective Time (which at such time will represent one-eighth (1/8) of a Subversive Limited Partnership Unit, subject to adjustment under the terms of the Rights Agreement);
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“Subversive Securities Authorities” means the applicable securities commissions or similar securities regulatory authorities in each of the Reporting Jurisdictions;
“Subversive Subsidiaries” means Canndoc Acquisition Finco Ltd. and Canndoc Acquisition Pubco Ltd.;
“Support and Lock-Up Agreement” means the voting support and lock-up agreements dated as of the date hereof between Subversive, Intercure and each Person set forth on Section 1.1 of the Intercure Disclosure Schedules;
“TASE” means the Tel-Aviv Stock Exchange;
“Tax Ordinance” means the Israeli Income Tax Ordinance [New-Version] – 1961, as amended, and the rules and regulations promulgated thereunder;
“Taxes” has the meaning ascribed thereto in Section 4.1(o) hereof;
“Top Customer” has the meaning ascribed thereto in Section 4.1(ee) hereof;
“Top Supplier” has the meaning ascribed thereto in Section 4.1(ff) hereof;
“TSX” means the Toronto Stock Exchange;
“TSX Listing” means the listing and posting for trading of the Intercure Shares on the TSX;
“U.S. Registration Statement” has the meaning ascribed thereto in Section 2.2(c);
“U.S. Resale Registration Statement” has the meaning ascribed thereto in Section 2.2(d); and
“United States” means the United States of America, its territories and possessions, any state of the United States, and the District of Columbia.
1.2 Amendment and Restatement
The Prior Agreement is hereby amended in its entirety and restated herein. Such amendment and restatement is effective upon the execution of this Agreement by each of the Parties hereto. Upon such execution, all provisions of, rights granted and covenants made in the Prior Agreement are hereby waived, released and superseded by this Agreement in their entirety and shall have no further force or effect.
1.3 Singular, Plural, etc.
Words importing the singular number include the plural and vice versa and words importing gender include all genders.
1.4 Deemed Currency
In the absence of a specific designation of any currency any undescribed dollar amount herein shall be deemed to refer to United States dollars.
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1.5 Headings, etc.
The division of this Agreement into Articles and Sections, the provision of a table of contents hereto and the insertion of the recitals and headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement and, unless otherwise stated, all references in this Agreement to Articles and Sections refer to Articles and Sections of and to this Agreement in which such reference is made.
1.6 Date for any Action
In the event that any date on which any action is required to be taken hereunder by any of the Parties hereunder is not a Business Day, such action shall be required to be taken on the next succeeding day that is a Business Day.
1.7 Governing Law
This Agreement shall be governed by and interpreted in accordance with the Laws of the Province of British Columbia and the Laws of Canada applicable therein. Notwithstanding the foregoing, the Plan of Arrangement will be governed by the Laws of the Province of British Columbia and the Laws of Canada applicable therein.
1.8 Attornment
The Parties hereby irrevocably and unconditionally consent to and submit to the courts of the Province of British Columbia for any actions, suits or proceedings arising out of or relating to this Agreement or the matters contemplated hereby (and agree not to commence any action, suit or proceeding relating thereto except in such courts) and further agree that service of any process, summons, notice or document by single registered mail to the addresses of the Parties set forth in this Agreement shall be effective service of process for any action, suit or proceeding brought against either Party in such court. The Parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the matters contemplated hereby in the courts of the Province of British Columbia and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding so brought has been brought in an inconvenient forum.
1.9 Schedules and Exhibits
The Schedules and Exhibits to this Agreement, including the Intercure Disclosure Schedules and the Subversive Disclosure Schedules, are hereby incorporated and made a part hereof and are an integral part of this Agreement.
ARTICLE
2
THE BUSINESS COMBINATION
2.1 Business Combination Steps
Intercure and Subversive agree to effect the combination of their respective businesses and assets by way of a series of steps or transactions including the Financing, the Plan of Arrangement, the Arrangement, the Nasdaq Listing, the TSX Listing, the TASE Listing and the Director Appointments. Each Party hereby agrees that as soon as reasonably practicable after the date hereof or at such other time as is specifically indicated below in this Section 2.1, and subject to the terms and conditions of this Agreement, it shall take the following steps indicated for it:
| (a) | Intercure Meeting. Intercure shall duly call and convene the Intercure Meeting at which the Intercure Shareholders will be asked to approve the resolutions proposed for approval at the Intercure Meeting and Intercure shall use all commercially reasonable efforts to obtain the approval of the Intercure Shareholders for the foregoing matters. |
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| (b) | Intercure to Enter Into Registration Rights Agreement with Certain PIPE Investors. As soon as practicable after signing this Agreement, Intercure shall enter into a registration rights agreement with certain of the PIPE Investors pursuant to the terms of certain of the Subscription Agreements (the “Registration Rights Agreement”). | |
| (c) | Financing. Prior to the Effective Time, the PIPE Investors will invest cash for Subversive Limited Partnership Units. | |
| (d) | Intercure Submission to the IMCA. As promptly as practicable and not later than five (5) Business Days after the execution and delivery of this Agreement, Intercure will submit to the IMCA the application for approval of the Director Appointments which require the approval of the IMCA and any new shareholder of Intercure, post-Effective Date, whose shareholding in Intercure (after giving effect to the Arrangement) exceeds 5% of the Intercure issued and outstanding share capital, in a form approved by Subversive. | |
| (e) | Plan of Arrangement. |
| (i) | Subversive and Intercure agree that the Arrangement will be implemented in accordance with and subject to the terms and conditions contained in this Agreement and in the Plan of Arrangement, as set forth in more detail in Article 3. | |
| (ii) | As a result of the Arrangement: |
| (A) | Each Subversive Limited Partnership Unit shall be exchanged for a number of Intercure Shares equal to the Per Unit Arrangement Consideration; provided that the total number of Intercure Shares issued to any Subversive Limited Partner, if not a round number, shall be rounded down to the nearest whole number of Intercure Shares; | |
| (B) | Subversive will become a wholly-owned Subsidiary of Intercure BC Sub and will be dissolved; and | |
| (C) | Intercure will purchase the General Partner Common Shares for a total of US$100.00. |
| (f) | ISA Approval. The TASE and ISA, as applicable, shall approve for trading on TASE those Intercure Shares issued hereunder to the Subversive Limited Partners, provided that immediately prior to such issuance the Intercure Shares shall be traded on TSX and all requirements for obtaining “dual listing” status for the trading of Intercure Shares on both TSX and TASE have been complied with, including an opinion of Canadian counsel to Intercure and TASE that under TSX and OSC rules and regulations such shares are freely tradable on the TSX and TASE. |
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| (g) | Compliance with U.S. State Blue Sky Laws. As promptly as practicable, the Parties shall seek to determine in what U.S. jurisdictions, if any, persons that are to receive Intercure Shares pursuant to the Arrangement reside (if an individual) or have their principal place of business (if an entity) and seek to comply with applicable U.S. state blue sky laws in connection with the issuance of Intercure Shares pursuant to the Arrangement. | |
| (h) | Reconstitution of Board. Upon consummation of the Arrangement, Intercure will add additional directors to its board of directors to give effect to the Director Appointments. | |
| (i) | U.S. Registration Statement and Resale Registration Statement. Prior to the consummation of the Arrangement, Intercure will register the Intercure Shares under Section 12(b) of the Securities Exchange Act on Form 20-F or another appropriate form (such form, the “U.S. Registration Statement”). Pursuant to the Registration Rights Agreement, on the the earlier of (i) immediately following the filing of the first amendment to the U.S. Registration Statement, and (ii) the tenth (10th) Business Day after the date Intercure is notified in writing by the staff of the SEC that the U.S. Registration Statement will not be “reviewed”, Intercure shall file a registration statement to register the resale of the PIPE Securities on an appropriate registration statement under the Securities Act (the “U.S. Resale Registration Statement”). | |
| (j) | Nasdaq Listing. As soon as practicable after the filing of the U.S. Registration Statement, Intercure shall submit a listing application for the Nasdaq Listing (the “Nasdaq Listing Application”). Immediately prior to consummation of the Arrangement, Intercure intends to obtain approval for the Nasdaq Listing of the Intercure Shares. | |
| (k) | TSX Listings. Prior to consummation of the Arrangement, (i) Subversive Limited Partnership Units shall be listed on the TSX and (ii) Intercure intends to obtain approval for the TSX Listing of the Intercure Shares and commence trading of its shares on TSX. | |
| (l) | NEO Delisting. At the Effective Time, Subversive will delist from the NEO. | |
| (m) | Other Actions, etc. The Parties shall take any other action and do anything, including the execution of any other agreements, documents or instruments that are necessary or useful to give effect to the Business Combination. |
2.2 Implementation Covenants
| (a) | Preparation of Prospectus. |
| (i) | Subversive shall, in consultation with Intercure and its advisors, as promptly as reasonably practicable, prepare and file the Prospectus with the NEO and the Subversive Securities Authorities, as applicable, in accordance with applicable Securities Laws. Intercure shall, and shall cause each of the Intercure Subsidiaries to, provide to Subversive: (x) in writing all necessary information concerning Intercure and the Intercure Subsidiaries that is required in order for the Prospectus to provide full, true and plain disclosure of all material facts relating Intercure and the Intercure Subsidiaries, to ensure that no material fact or information will have been omitted from the Prospectus which is required to be stated therein or is necessary to make the statements or information contained therein not misleading in light of the circumstances under which they are made, and to otherwise comply with the requirements of applicable Securities Law (including the Intercure Prospectus Financial Statements and related management’s discussion and analysis); and (y) such assistance as may be reasonably required in connection with the preparation of the Prospectus. |
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| (ii) | Intercure shall provide Subversive and its auditor access to and the opportunity to review all financial statements and financial information of Intercure that is required in connection with the preparation of the Prospectus (including the Intercure Prospectus Financial Statements and related management’s discussion and analysis). Intercure hereby: (x) consents to the inclusion of any such financial statements in the Prospectus, and (y) agrees to cause to be provided appropriate signatures where required and to obtain any necessary consents from any of its auditors and any other advisors to the use of any financial or other expert information required to be included in the Prospectus. In the event the OSC requires a promotor to sign the Prospectus, Intercure shall sign the Prospectus as a promoter; provided that Subversive shall use all commercially reasonably efforts in compliance with applicable Laws to avoid Intercure being required to sign the Prospectus as promoter. Intercure further agrees to provide such financial information and assistance as may be reasonably required in connection with any pre-filing or exemptive relief application in respect of disclosure in the Prospectus and in connection with the preparation of any pro-forma financial statements for inclusion in the Prospectus. Intercure will certify to Subversive that all information and statements provided by Intercure related to the Intercure Subsidiaries for inclusion in the preliminary Prospectus, the final Prospectus and the redemption deadline for the Subversive Restricted Voting Units, will be at the date the information and statements are provided, and will be at the proposed date of filing of the preliminary and final Prospectus, accurate and contain no misrepresentation and constitute full, true and plain disclosure of all material facts relating to Intercure and the Intercure Subsidiaries, as required to be disclosed by Subversive in the Prospectus pursuant to applicable Securities Laws and no material fact or information will have been omitted from such disclosure which is required to be stated in such disclosure or is necessary to make the statements or information contained in such disclosure not misleading in light of the circumstances under which they are made. | |
| (iii) | The Parties shall cooperate with one another in connection with the preparation and filing of the Prospectus and shall use their commercially reasonable efforts to obtain the approval of the NEO and a receipt for Subversive’s final Prospectus from the Subversive Securities Authorities, including providing or submitting on a timely basis all documentation and information that is reasonably required or advisable in connection with obtaining such approvals. Upon the reasonable request of Subversive, Intercure shall cause its directors and executive officers who are required or requested by a Governmental Authority to deliver personal information forms under the rules of the NEO and/or Securities Laws to complete and deliver such forms in a timely manner. | |
| (iv) | The Parties shall jointly seek to ensure that the Prospectus complies in all material respects with applicable Securities Laws, does not contain any misrepresentation (except that Subversive shall not be responsible for any information or financial statements relating to Intercure or the Intercure Subsidiaries that was approved for inclusion therein by Intercure, acting reasonably, and except that Intercure shall not be responsible for any information or financial statements relating to Subversive that was approved for inclusion therein by Subversive, acting reasonably), and is in a form satisfactory to the NEO and to the Subversive Securities Authorities in order to obtain a receipt from the Subversive Securities Authorities in respect thereof. | |
| (v) | Subversive shall give Intercure and its auditors and legal counsel a reasonable opportunity to review and comment on drafts of the Prospectus and other related documents, and shall give reasonable consideration to any comments made by Intercure and its auditors and legal counsel and agrees that all information relating to Intercure included in the Prospectus must be in a form and content satisfactory to Intercure, acting reasonably, and shall, subject to obtaining NEO and receipt of Subversive’s final Prospectus from the Subversive Securities Authorities, cause the Prospectus to be filed on SEDAR (and sent to each Subversive Shareholder) as required by applicable Securities Laws. |
| (b) | Preparation of Intercure Meeting Documentation. Intercure shall duly prepare documentation required in connection with the Intercure Meeting, and deliver such documentation to all Intercure Shareholders. | |
| (c) | Preparation of U.S. Registration Statement. |
| (i) | As promptly as reasonably practicable following the date of this Agreement, Intercure and Subversive shall prepare and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either Subversive or Intercure, as applicable) and file the U.S. Registration Statement of Intercure, all in accordance with and as required by applicable Laws, and any applicable rules and regulations of the SEC and Nasdaq. |
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| (ii) | Each of Intercure and Subversive shall use its commercially reasonable efforts to (i) cause the U.S. Registration Statement to comply in all material respects with the applicable rules and regulations promulgated by the SEC (including, with respect to Intercure and the Intercure Subsidiaries, the provision of financial statements of, and any other information with respect to, Intercure and the Intercure Subsidiaries for all periods, and in the form, required to be included in the U.S. Registration Statement under Securities Laws (after giving effect to any waivers received) or in response to any comments from the SEC); (ii) promptly notify the others of, reasonably cooperate with each other with respect to and respond promptly to any comments of the SEC or its staff; and (iii) have the U.S. Registration Statement declared effective under the Securities Act as promptly as reasonably practicable after it is filed with the SEC. Intercure, on the one hand, and Subversive, on the other hand, shall promptly furnish, or cause to be furnished, to the other all information concerning such Party, its Affiliates and their respective representatives that may be required or reasonably requested in connection with any action contemplated by this Section 2.2(c) or for including in any other statement, filing, notice or application made by or on behalf of Intercure or Subversive to the SEC or Nasdaq in connection with the transactions contemplated by this Agreement. | |
| (iii) | If any Party becomes aware of any information that should be disclosed in an amendment or supplement to the U.S. Registration Statement, then (i) such Party shall promptly inform the other Parties; (ii) such Party shall prepare and mutually agree upon with the other Parties (in either case, such agreement not to be unreasonably withheld, conditioned or delayed), an amendment or supplement to the U.S. Registration Statement; and (iii) Intercure shall file such mutually agreed upon amendment or supplement with the SEC. | |
| (iv) | Intercure shall as promptly as reasonably practicable advise Subversive of the time of effectiveness of the U.S. Registration Statement. Each of the Parties shall use commercially reasonable efforts to ensure that none of the information related to such Party or any of its Affiliates or its or their respective representatives, supplied by or on his, her or its behalf for inclusion or incorporation by reference in the U.S. Registration Statement will, at the time the U.S. Registration Statement is initially filed with the SEC, at each time at which it is amended, or at the time it becomes effective under the Securities Act contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. |
| (d) | Preparation of U.S. Resale Registration Statement. Intercure shall prepare the U.S. Resale Registration Statement. | |
| (e) | ISA and TASE Approval. Intercure shall use all commercially reasonable efforts to obtain ISA’s and TASE’s approval to the “dual listing” status of Intercure, subject to the TSX Listing, and the free tradeability of Intercure Shares listed on the TSX. | |
| (f) | Nasdaq and TSX Listings. Subversive and Intercure shall use all commercially reasonable efforts to cause the Nasdaq Listing, the Subversive listing on the TSX and TSX Listing to occur immediately prior to the consummation of the Arrangement. | |
| (g) | NEO Delisting. Subversive and Intercure shall use all commercially reasonable efforts to cause the delisting of Subversive Restricted Voting Units to occur. |
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| (h) | Preparation of Filings and Meeting Documentation. Intercure and Subversive shall cooperate in the preparation of any documents and taking of all actions reasonably deemed by Intercure or Subversive to be necessary to discharge their respective obligations under applicable Laws in connection with the Business Combination and all other matters contemplated in the Documents, and in connection therewith: |
| (i) | each of Intercure and Subversive shall furnish to the other all such information concerning it, its Subsidiaries and Affiliates and its shareholders or limited partners as may be required to effect the actions described in this Article 2, and each covenants that no information furnished by it in connection with such actions or otherwise in connection with the consummation of the Business Combination will contain any untrue statement of a material fact or omit to state a material fact required to be stated in any such document or necessary in order to make any information so furnished for use in any such document not misleading in the light of the circumstances in which it is furnished or to be used; and | |
| (ii) | Intercure and Subversive shall each promptly notify the other if at any time before the Effective Date it becomes aware that the Information Circular, the Prospectus, the U.S. Registration Statement or the U.S. Resale Registration Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading in light of the circumstances in which they are made, or that otherwise requires an amendment or supplement to the Information Circular, the Prospectus, the U.S. Registration Statement or the U.S. Resale Registration Statement. In any such event, Intercure and Subversive shall cooperate in the preparation of a supplement or amendment to the Information Circular, Prospectus, the U.S. Registration Statement or the U.S. Resale Registration Statement, as applicable, as required and as the case may be, and, if required, shall cause the same to be filed with the Subversive Securities Authorities or the SEC, as applicable. |
2.3 Board of Directors and Senior Officers
Each of the Parties hereby agrees that upon completion of the Business Combination and giving effect to the Director Appointments, and subject to compliance with applicable Securities Laws and the rules of the Nasdaq and the TSX, the board of directors and senior officers of Intercure shall consist of the following:
| Name | Title | |
| Ehud Barak | Director and Chairman of the Board | |
| Alex Rabinovitch | Director and Chief Executive Officer | |
| David Salton | Director | |
| Lennie Grinbaum | External Director | |
| Gideon Hirshfeld | External Director | |
| Alon Granot | Director | |
| Michael Auerbach | Director (new director to be appointed subject to completion of the Arrangement) | |
| Amos Cohen | Chief Financial Officer | |
| Rami Levi | Chief Operating Officer |
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ARTICLE
3
ARRANGEMENT
3.1 The Arrangement
On the terms and subject to the conditions of this Agreement, the Parties shall proceed to effect the Arrangement under Part 9, Division 5 of the BCBCA at the Effective Time, on the terms contained in the Plan of Arrangement.
3.2 The Interim Order
As soon as reasonably practicable after the date of this Agreement, the General Partner and Subversive shall apply pursuant to Part 9, Division 5 of the BCBCA and, in cooperation with Intercure, prepare, file and diligently pursue an application to the Court for the Interim Order in respect of the Arrangement, which shall provide, among other things:
| (a) | For the class of persons to whom notice is to be provided in respect of the Arrangement and the Subversive Meeting and for the manner in which such notice is to be provided; | |
| (b) | That the required level of approval for the Subversive Arrangement Resolution shall be the Subversive Required Approval; | |
| (c) | That, in all other respects, the terms, restrictions and conditions of the Subversive Governing Documents, including quorum requirements and all other matters, shall apply in respect of the Subversive Meeting; | |
| (d) | For the grant of the Arrangement Dissent Rights to those Subversive Limited Partners who are registered Subversive Limited Partners; | |
| (e) | For the notice requirements with respect to the presentation of the application to the Court for the Final Order; | |
| (f) | That the Subversive Meeting may be adjourned or postponed from time to time by Subversive, in accordance with the terms of this Agreement and without the need for additional approval of the Court; | |
| (g) | That the record date for the Subversive Limited Partners entitled to notice of and to vote at the Subversive Meeting will not change in respect of any adjournment(s) or postponement(s) of the Subversive Meeting; | |
| (h) | That it is Intercure’s intention to rely upon the exemption from registration provided by Section 3(a)(10) of the Securities Act with respect to the issuance of Intercure Shares pursuant to the Arrangement, based on the Court’s approval of the Arrangement; and | |
| (i) | For such other matters as the Parties may agree are reasonably necessary to complete the Business Combination. |
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3.3 The Company Meeting; Information Circular
| (a) | Subject to the terms of this Agreement and the Interim Order, Subversive shall convene and conduct the Subversive Meeting in accordance with Subversive’s Governing Documents, applicable Laws and the Interim Order as soon as reasonably practicable. Subversive shall use its commercially reasonable efforts to obtain the Subversive Required Approval of the Subversive Arrangement Resolution, including instructing the management proxyholders named in the Information Circular to vote any discretionary or blank proxy submitted by shareholders in favor of such action, and shall take all other action reasonably necessary or advisable to secure the Subversive Required Approvals; | |
| (b) | Subversive shall promptly prepare and complete the Information Circular together with any other documents required by applicable Law in connection with the Subversive Meeting and the Arrangement, and Subversive shall, as promptly as practicable after obtaining the Interim Order, cause the Information Circular and such other documents to be sent to each Subversive Limited Partner and other person as required by the Interim Order and Law. | |
| (c) | Subversive shall ensure that the Information Circular (i) complies with the Subversive Governing Documents and applicable Law, (ii) does not contain any misrepresentation, except with respect to the Intercure information included in the Information Circular, which Intercure will ensure does not contain a misrepresentation, (iii) provides the Subversive Limited Partners with sufficient information (explained in sufficient detail) to permit them to form a reasoned judgement concerning the matters to be placed before the Subversive Meeting and (iv) states any material interest of each director and officer, whether as director, officer, securityholder or creditor of the Company, as and to the extent required by applicable Law. | |
| (d) | Subversive shall, subject to the terms of this Agreement, ensure that the Information Circular includes a statement that the board of directors of the General Partner has (i) determined that the Business Combination is in the best interests of Subversive and fair to the Subversive Limited Partners and (ii) recommended that the Subversive Limited Partners vote in favor of the Subversive Arrangement Resolution. | |
| (e) | Intercure shall assist Subversive in the preparation of the Information Circular, including obtaining and furnishing to Subversive any information with respect to Intercure required to be included under applicable Laws in the Information Circular, and ensuring that such information does not contain any misrepresentation. |
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| (f) | Each party shall promptly notify the other party if it becomes aware that the Information Circular contains a misrepresentation, or otherwise requires an amendment or supplement. The parties shall co-operate in the preparation of any such amendment or supplement as required or appropriate, and Subversive shall promptly deliver or otherwise disseminate any such amendment or supplement to the Subversive Limited Partners as required by the Court or applicable Law. |
3.4 The Final Order
The General Partner and Subversive shall take all steps necessary or desirable to submit the Arrangement to the Court and diligently pursue an application for the Final Order pursuant to Part 9, Division 5 of the BCBCA, as soon as reasonably practicable, but in any event not later than three (3) Business Days after the Subversive Arrangement Resolution is passed at the Subversive Meeting as provided for in the Interim Order.
3.5 Court Proceedings
| (a) | In connection with all Court proceedings relating to obtaining the Interim Order and the Final Order, the General Partner and Subversive shall: |
| (i) | Diligently pursue, and cooperate with Intercure in diligently pursuing, the Interim Order and the Final Order; | |
| (ii) | Ensure that all material filed with the Court in connection with the Arrangement is consistent with this Agreement and the Plan of Arrangement; and | |
| (iii) | subject to this Agreement, oppose any proposal from any person that the Final Order contain any provision inconsistent with the Arrangement or this Agreement. |
| (b) | Subject to the terms of this Agreement, Intercure will cooperate with, and assist the General Partner and Subversive in, seeking the Interim Order and the Final Order, including by providing the General Partner and Subversive on a timely basis any information reasonably required or requested to be supplied by Intercure in connection therewith. |
3.6 Arrangement Effective Time
As promptly as practicable after the satisfaction or, if permissible, waiver of the conditions set forth in Article 6 (other than those conditions that by their nature are to be satisfied at the Closing, it being understood that the occurrence of the completion of the Arrangement shall remain subject to the satisfaction or, if permissible, waiver of such conditions at the completion), or at such other time as the General Partner, Subversive and Intercure may agree in writing, the parties hereto shall cause consummation of the Arrangement to become effective at the Effective Time in accordance with the Plan of Arrangement.
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3.7 U.S. Federal Securities Law Matters
The Parties agree that the Arrangement will be carried out with the intention that all Intercure Shares issued pursuant to the Arrangement to the Subversive Limited Partners will be issued by Intercure in reliance on the exemption from the registration requirements of the Securities Act provided by Section 3(a)(10) thereunder. In order to ensure the availability of the exemption under Section 3(a)(10) of the Securities Act, the Parties agree that the Arrangement will be carried out on the following basis:
| (a) | The procedural and substantive fairness of the terms and conditions of the Arrangement will be subject to the approval of the Court; | |
| (b) | The Court will be advised as to the intention of the Parties to rely on the exemption provided by Section 3(a)(10) of the Securities Act prior to the hearing required to approve the procedural and substantive fairness of the terms and conditions of the Arrangement; | |
| (c) | The Court will be required to satisfy itself as to the procedural and substantive fairness of the terms and condition of the Arrangement to the Subversive Limited Partners, subject to the Arrangement; | |
| (d) | Subversive will ensure that each Subversive Limited Partners entitled to receive Intercure Shares on completion of the Arrangement will be given adequate notice advising them of their right to attend the hearing of the Court to approve the procedural and substantive fairness of the terms and conditions of the Arrangement and providing them with sufficient information necessary for them to exercise that right; | |
| (e) | The Subversive Limited Partners entitled to receive Intercure Shares will be advised that the Intercure Shares issued pursuant to the Arrangement have not been registered under the Securities Act and will be issued by Intercure in reliance on the exemption provided by Section 3(a)(10) of the Securities Act; | |
| (f) | The Final Order approving the terms and conditions of the Arrangement that is obtained from the Court will expressly state that the Arrangement is approved by the Court as being procedurally and substantively fair to the Subversive Limited Partners; | |
| (g) | The Interim Order approving the Subversive Meeting will specify that each Subversive Limited Partners will have the right to appear before the Court at the hearing of the Court to give approval of the Arrangement so long as they enter an appearance within a reasonable time; and | |
| (h) | The Court will hold a hearing before approving the procedural and substantive fairness of the terms and conditions of the Arrangement. |
3.8 U.S. State Blue Sky Laws Applicable to Subversive Limited Partners that are U.S. Persons
The Parties understand and acknowledge that the Intercure Shares issued pursuant to Section 3(a)(10) of the Securities Act will not be “covered securities” under Section 18(b) of the Securities Act and, to the extent such Intercure Shares are issued to U.S. Persons (as such term is defined under Regulation S promulgated under the Securities Act), they are not exempt from the registration or qualification requirements of U.S. state blue sky laws.
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3.9 Share Exchange and Payment under the Arrangement
| (a) | Upon the issuance of the Certificate of Arrangement: (i) Intercure shall issue a number of Intercure Shares to satisfy the consideration issuable to the Subversive Limited Partners hereunder and under the Plan of Arrangement; (ii) Intercure shall deposit share certificates together with TASE approval and ancillary documentation with a registration company to be agreed; (iii) the registration company credits the Subversive Limited Partners as the recipients of the Intercure Shares; and (iv) certificates formerly representing Subversive Limited Partnership Units which are held by such Subversive Limited Partners shall cease to represent any claim upon or interest in Subversive other than the right of the registered holder to receive the number of Intercure Shares to which it is entitled hereunder, all in accordance with the provisions of the Arrangement. | |
| (b) | As soon as reasonably practicable after the Effective Date, a bank, custodian, depositary or other appropriate agent to be agreed by the Parties will forward to, or hold for pick-up by, each former Subversive Limited Partner that submitted a duly completed Letter of Transmittal, or similar statement or other evidence of entitlement to such depositary or agent, together with the certificate (if any) representing the Subversive Limited Partnership Units held by such Subversive Limited Partner or such other evidence of ownership of such Subversive Limited Partnership Units, (i) the certificates or other statements representing the Intercure Shares to which such Subversive Limited Partner is entitled, in accordance with its Letter of Transmittal, or (ii) confirmation of a non-certificated electronic position representing the Intercure Shares to which such Subversive Limited Partner is entitled, in accordance with its Letter of Transmittal, all in accordance with the process agreed by the Parties. | |
| (c) | The Parties covenant and agree, as promptly as reasonably practicable after the date of this Agreement, to structure the process for delivering Intercure Shares to Subversive Limited Partners in order to eliminate or avoid the application of Israeli withholding tax (and any procedures in respect thereof) to transfers of Intercure Shares by non-Israeli residents, including by depositing the Intercure Shares to be issued in the Arrangement with a non-Israeli foreign stock exchange member in the United States or Canada, having the Intercure Shares held by a foreign broker, and taking any and all other steps reasonably necessary to eliminate such withholding tax. | |
| (d) | Not later than one Business Day after the Effective Date, Intercure shall pay in cash by wire transfer in immediately available funds a total amount of US$100.00 to the shareholders of the General Partner for the General Partner Common Shares, and any certificates formerly representing common shares of the General Partner shall cease to represent any claim upon or interest in the General Partner other than the right of the registered holder to receive US$1.00 per share, all in accordance with the provisions of the Arrangement. |
3.10 U.S. Tax Matters.
Subversive intends to make a corporate entity classification election for U.S. Tax purposes shortly prior to the consummation of the Plan of Arrangement. The parties acknowledge that the transaction will be reported for U.S. income tax purposes as a tax-free reorganization under U.S. Internal Revenue Code Section 368, and the Plan of Arrangement and this Agreement together shall constitute a “plan of reorganization” under Code Section 368 and the U.S. Treasury regulations promulgated thereunder.
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ARTICLE
4
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of Intercure
Except as set forth in the corresponding sections of the Intercure Disclosure Schedules attached hereto (collectively, the “Intercure Disclosure Schedules”) (each of which shall qualify only the specifically identified sections or subsections hereof to which such Intercure Disclosure Schedule relates and shall not qualify any other provision of this Agreement), Intercure hereby represents and warrants to Subversive and the General Partner as of the date hereof and as of the Effective Date, and acknowledges that each of Subversive and the General Partner is relying upon such representations and warranties in connection with the entering into of this Agreement, as follows:
| (a) | Due Incorporation, Intercure. Intercure has been duly incorporated and is validly existing under the laws of the State of Israel and is current and up-to-date with all filings required to be made by it in such jurisdiction. | |
| (b) | Due Incorporation, Subsidiaries. Each of the Intercure Subsidiaries has been duly incorporated and is validly existing under the laws of its jurisdiction of formation and is current and up-to-date with all filings required to be made by it in such jurisdiction, and all of the issued shares in the capital of each of the Intercure Subsidiaries are owned free and clear of any pledge, lien, security interest, charge, claim or encumbrance or in relation to inter-corporate security. | |
| (c) | Corporate Power. Each of Intercure and Intercure BC Sub has full corporate power, capacity and authority to undertake all steps of the Business Combination contemplated in the Documents and to carry out its obligations under this Agreement. | |
| (d) | Share Capital. The authorized capital of Intercure consists of 200,000,000 Intercure Shares (prior to the Intercure Share Consolidation), of which, at the date hereof, there are 120,088,900 Intercure Shares issued and outstanding (prior to the Intercure Share Consolidation); except for such Intercure Shares and the Intercure Convertible Securities described in the Intercure Disclosure Schedules, Intercure has no other securities issued and outstanding at the date hereof, and the authorized capital of each Intercure Subsidiary, ownership thereof, and all securities convertible into or exercisable for capital of each Intercure Subsidiary, is set forth in the Intercure Disclosure Schedules. Except for the Intercure Subsidiaries, and the shareholdings of two life science companies described in the Intercure Disclosure Schedules, none of Intercure or the Intercure Subsidiaries owns any shares in the capital of any other entity. The Intercure BC Sub was formed for the sole purposes of effecting the Arrangement, and has no assets, business or operations. | |
| (e) | Rights. Neither Intercure nor any one of the Intercure Subsidiaries is a party to and has not granted any agreement, warrant, option or right or privilege capable of becoming an agreement, for the purchase, subscription or issuance of any Intercure Shares or any shares of any one of the Intercure Subsidiaries, or securities convertible into or exchangeable for Intercure Shares or shares of any Intercure Subsidiary other than as set forth in the Intercure Disclosure Schedules. |
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| (f) | Permits; Licenses. Intercure and each of the Intercure Subsidiaries has all requisite corporate capacity, power and authority, and possesses all certificates, authority, permits and licenses issued by the appropriate state, provincial, municipal or federal regulatory agencies or bodies necessary to conduct the business as now conducted by Intercure on a consolidated basis, and to own its assets, and is in compliance in all material respects with such certificates, authorities, permits or licenses. Neither Intercure nor any one of the Intercure Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authority, permit or license which, singly or in the aggregate, if the subject of an unfavourable decision, order, finding or ruling, would adversely affect the conduct of the business, operations, financial condition, income or future prospects of Intercure on a consolidated basis. Neither Intercure nor any one of the Intercure Subsidiaries has any responsibility or obligation to pay any commission, royalty, license or similar payment to any person (other than mandatory payments to the appropriate state, provincial, municipal or federal regulatory agencies and applicable laws of Israel) with respect thereto. | |
| (g) | Assets. |
| (i) | Intercure and each of the Intercure Subsidiaries is the absolute legal and beneficial owner of, and has good and marketable title to, material property and assets necessary to conduct their businesses as currently being conducted and such material property and assets are free of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoever. | |
| (ii) | The inventory of Intercure and the Intercure Subsidiaries is merchantable and fit for the purpose for which it was procured or manufactured, and is not slow-moving, obsolete, damaged, or defective, subject to the reserve for inventory writedown set forth on the Balance Sheet as adjusted for the passage of time through the Effective Date in accordance with the past custom and practice of Intercure and the Intercure Subsidiaries or as would not be expected to have a Material Adverse Effect. All notes and accounts receivable of Intercure and the Intercure Subsidiaries are reflected properly on their books and records and are valid receivables subject to no setoffs or counterclaims. The accounts payable and accruals of Intercure and the Intercure Subsidiaries have arisen in bona fide arm’s-length transactions in the ordinary course of business, and each of Intercure and the Intercure Subsidiaries has been paying its accounts payable in the ordinary course. |
| (h) | Due Authorization, Execution and Delivery. Each of the Documents has been or at the Effective Time will be, duly authorized, and with respect to this Agreement, executed and delivered by Intercure and the Intercure BC Sub and constitutes a valid and binding obligation of Intercure and the Intercure BC Sub enforceable in accordance with its terms (subject to such limitations and prohibitions as may exist or may be enacted in applicable laws relating to bankruptcy, insolvency, liquidation, moratorium, reorganization, arrangement or winding-up and other laws, rules and regulations of general application affecting the rights, powers, privileges, remedies and/or interests of creditors generally) and no other corporate proceeding on the part of Intercure or the Intercure BC Sub, other than as specified in this Agreement, is necessary to authorize this Agreement and the transactions contemplated hereby. |
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| (i) | Consents; Authorizations. The entering into and the performance by each of Intercure and the Intercure BC Sub of the Business Combination contemplated in the Documents: (a) do not require any consent, approval, authorization or order of any court or governmental agency, body or Government Authority, other than as set forth in the Intercure Disclosure Schedules; (b) will not contravene any statute or regulation of any Government Authority which is binding on Intercure or any of the Intercure Subsidiaries where such contravention would have a Material Adverse Effect; (c) will not result in the material breach of, or be in material conflict with, or constitute a material default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a material default under any term or provision of the Governing Documents, by-laws or resolutions of Intercure or any of the Intercure Subsidiaries; and (d) except where it would not have a Material Adverse Effect, will not result in the breach of, or be in conflict with, or constitute a default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a default under any term or provisions of, any material mortgage, note, indenture, contract or agreement instrument, lease or other document to which Intercure or any of the Intercure Subsidiaries is a party, or any judgment, decree or order or any term or provision thereof. Except for the requirements of the IMCA as set forth in Intercure Disclosure Schedules, there are no other restrictions on the ability of a foreign investor (i.e., non-Israeli) to hold interests in Intercure or in any of the Intercure Subsidiaries, and except for the IMCA requirements, no other approvals are required that can affect Intercure’s or any of the Intercure Subsidiaries’ operations. | |
| (j) | Legal Proceedings. Other than as set forth in the Intercure Disclosure Schedules, there are no legal, regulatory, governmental or similar proceedings pending or, to the knowledge of Intercure, contemplated or threatened, to which Intercure or any one of the Intercure Subsidiaries is a party or to which the property of Intercure or any of the Intercure Subsidiaries is subject. | |
| (k) | Insurance. Intercure and each of the Intercure Subsidiaries maintains valid and enforceable insurance against loss or damage in respect of its assets, business and operations, with responsible insurers on a basis consistent with insurance obtained by reasonably prudent participants in comparable businesses, including directors and officers insurance. | |
| (l) | Adverse Legislation. Intercure is not aware of any legislation, regulations, changes or instructions from any Government Authority, which it anticipates will materially and adversely affect the business, affairs, operations, assets, liabilities (contingent or otherwise) or prospects of Intercure or the Intercure Subsidiaries. | |
| (m) | Non-Competes. Other than as set forth in the Intercure Disclosure Schedules, and other than the requirements under the applicable laws of Israel, neither Intercure nor any one of the Intercure Subsidiaries is party to or bound or affected by any commitments, agreement or document containing any covenant which expressly limits the freedom of Intercure and the Intercure Subsidiaries to compete in any line of business or with any person other than for certain exclusive distribution arrangements in particular territories, or to transfer or move any of its assets or operations. |
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| (n) | Intellectual Property. Intercure and the Intercure Subsidiaries own and possess adequate enforceable rights to use all trademarks, patents, copyrights and trade secrets used or proposed to be used in the conduct of the business thereof and, to the knowledge of Intercure, neither Intercure nor any of the Intercure Subsidiaries is infringing upon the rights of any other person with respect to any such trademarks, patents, copyrights or trade secrets and, no person has infringed any such trademark, patents, copyrights or trade secrets. | |
| (o) | Taxes. (i) Any and all taxes, duties, fees, excises, premiums, assessments, imposts, levies and other charges or assessments of any kind whatsoever imposed by any Government Authority, whether computed on a separate, consolidated, unitary, combined or other basis, including those levied on, or measured by, or described with respect to, income, gross receipts, profits, gains, windfalls, capital, capital stock, production, recapture, transfer, land transfer, license, gift, occupation, wealth, environment, net worth, indebtedness, surplus, sales, goods and services, harmonized sales, use, value-added, excise, special assessment, stamp, withholding, business, franchising, real or personal property, health, employee health, payroll, workers’ compensation, employment or unemployment, severance, social services, social security, education, utility, surtaxes, customs, import or export, and including all license and registration fees and all employment insurance, health insurance and government pension plan premiums or contributions; (ii) all interest, penalties, fines, additions to tax or other additional amounts imposed by any Government Authority on or in respect of amounts of the type described in clause (i) above or this clause (ii); (iii) any liability for the payment of any amounts of the type described in clauses (i) or (ii) as a result of being a member of an affiliated, consolidated, combined or unitary group for any period; and (iv) any liability for the payment of any amounts of the type described in clauses (i) or (ii) as a result of any express or implied obligation to indemnify any other Person or as a result of being a transferee or successor in interest to any party, in each case whether disputed or not (collectively, “Taxes”), due and payable by Intercure and the Intercure Subsidiaries have been paid or remitted or a provision made therefor, except for failure to pay such Taxes that will result in material harm to Intercure or any of the Intercure Subsidiaries. All tax returns, declarations, remittances and filings required to be filed by Intercure and the Intercure Subsidiaries have been filed with all appropriate Government Authorities and all such returns, declarations, remittances and filings are complete and accurate and no material fact or facts have been omitted therefrom which would make any of them misleading. To the knowledge of Intercure, no examination of any tax return of Intercure or any one of the Intercure Subsidiaries is currently in progress and except as detailed in the Intercure Disclosure Schedules, there are no issues or disputes outstanding with any Government Authority respecting any Taxes that have been paid, or may be payable, by Intercure and the Intercure Subsidiaries. There are no agreements with any taxation authority providing for an extension of time for any assessment or reassessment of Taxes with respect to Intercure or any of the Intercure Subsidiaries. |
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| (p) | Brokers. There is no person, firm or company acting or purporting to act at the request of Intercure who is or will be entitled to any brokerage or finder’s fee in connection with the transactions contemplated herein. |
| (q) | Compliance with Law. |
| (i) | Intercure and each of the Intercure Subsidiaries has conducted and is conducting its business in compliance in all material respects with all applicable Laws of each jurisdiction in which it carries on business and with all Laws material to its operation, including without limitation all applicable antitrust laws and regulations, and neither Intercure nor any one of the Intercure Subsidiaries has received any notice of the revocation or cancellation of, or any intention to revoke or cancel, any of the licenses, leases or other instruments conferring rights to Intercure or any one of the Intercure Subsidiaries for the conduct of their business. Intercure and each of the Intercure Subsidiaries hold, and immediately following the Effective Time will hold, all Cannabis Licenses necessary for the conduct, ownership, use, occupancy or operation of their businesses or assets as conducted, owned, used, occupied or operated as of the date hereof, and all such Cannabis Licenses are valid and in full force and effect. To the knowledge of Intercure, the Cannabis Licenses will not be cancelled, terminated, revoked, limited in scope or otherwise adversely affected by the Arrangement or the other transactions contemplated hereby. | ||
| (ii) | to the knowledge of Intercure, all activities of Intercure and the Intercure Subsidiaries have been, up to and including the date hereof, conducted in compliance, in all material respects, with any and all applicable Laws, including, without limitation, Environmental Laws as defined below, and all applicable Laws, including of the land authority and the ministry of agriculture of Israel, the IMCA or any other competent authority controlling the cannabis field breeding, cultivation, harvesting, production, handling, storage, distribution, labeling, white labeling, sale, and possession of Cannabis, clinical trials, and the import and export of Cannabis. |
| (r) | Material Agreements. |
| (i) | To the knowledge of Intercure, any and all material agreements pursuant to which Intercure or any one of the Intercure Subsidiaries holds any of their material assets or investments, or pursuant to which Intercure performs or receives services, including without limitation investments and joint ventures in or pertaining to non-wholly owned Subsidiaries and other Persons (each, a “Material Contract”), are (A) valid and subsisting agreements in full force and effect, (B) enforceable in accordance with their respective terms, (C) neither Intercure nor any of the Intercure Subsidiaries is in default of any of the material provisions of any such agreements including, without limitation, failure to fulfil any payment or work obligation thereunder nor has any such default been alleged, (D) Intercure is not aware of any material disputes with respect thereto, including with partners or shareholders in investments and joint ventures in or pertaining to non-wholly owned Subsidiaries and other Persons, and (E) such assets are in good standing under the applicable statutes and regulations of the jurisdictions in which they are situated, all leases, licenses and concessions pursuant to which Intercure and the Intercure Subsidiaries derive their interests in such material assets are in good standing and there has been no material default under any such leases, licenses and concessions and all real or other property taxes required to be paid with respect to such assets to the date hereof have been paid. |
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| (ii) | As of the date hereof, the Intercure Disclosure Schedules set forth a list of all Material Contracts. Other than as set forth in the Intercure Disclosure Schedules, there are no agreements, understandings, arrangements or other commitments, written or oral, to which Intercure or any Intercure Subsidiary is a party or by which it is bound which are deemed material to Intercure or any Intercure Subsidiary and of which Intercure is aware. Each Material Contract that is listed in the Intercure Disclosure Schedules is, to Intercure’s knowledge, in full force and effect (according to its terms). |
| (s) | Environmental Laws. To the knowledge of Intercure, all the properties in which Intercure or the Intercure Subsidiaries have any freehold, leasehold, license or other interest are free and clear of any hazardous or toxic material, pollution, or other adverse environmental conditions which may give rise to any and all claims, actions, causes of action, damages, losses, liabilities, obligations, penalties, judgments, amounts paid in settlement, assessments, costs, disbursement or expenses (including, without limitation, attorneys’ fees and costs, experts’ fees and costs, and consultant’s fees and costs) of any kind or of any nature whatsoever that are asserted against Intercure or any of the Intercure Subsidiaries, alleging liability (including, without limitation, liability for studies, testing or investigatory costs, cleanup costs, response costs, removal costs, remediation costs, contaminant costs, restoration costs, corrective action costs, closure costs, reclamation costs, natural resource damages, property damages, business losses, personal injuries, penalties or fines) arising out of, based on or resulting from (i) the presence, release, threatened release, discharge or emission into the environment of any hazardous materials or substances existing or arising on, beneath or above properties and/or emanating or migrating and/or threatening to emanate or migrate from such properties to off-site properties; (ii) physical disturbance of the environment; and (iii) the violation or alleged violation of all applicable Laws aimed at reclamation or restoration of such properties; abatement of pollution; protection of the environment, protection of wildlife, including endangered species; ensuring public safety from environmental hazards; protection of cultural and historic resources; management, storage or control of hazardous materials and substances; releases or threatened releases of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances as wastes into the environment, including without limitation, ambient air, surface water and groundwater; and all other applicable Laws relating to the manufacturing, processing, distribution, use, treatment, storage, disposal, handling or transport of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or wastes (collectively, “Environmental Laws”); and to the knowledge of Intercure, after due inquiry, all environmental approvals required pursuant to Environmental Laws with respect to activities carried out on any part of the lands covered by such properties, have been obtained, are valid and in full force and effect and have been complied with; and there are no proceedings commenced or threatened to revoke or amend any such environmental approvals. |
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| (t) | Related Party Loans. Neither Intercure nor any one of the Intercure Subsidiaries has any loan or other indebtedness outstanding which has been made to any of its shareholders, officers, directors or employees, past or present, or any person not dealing at “arm’s length” (as such term is defined in the Income Tax Act (Canada)); all such loans are described in detail in the Intercure Disclosure Schedules. | |
| (u) | Labour Matters. |
| (i) | The Intercure Disclosure Schedules set forth a list of all key employees. | |
| (ii) | Other than as set forth in the Intercure Disclosure Schedules, neither Intercure nor any of the Intercure Subsidiaries has entered into an employment contract with any officer or employee or any other consultant or person or entity, which is not terminable by Intercure or such Intercure Subsidiary at will without liability, upon thirty (30) days prior notice. | |
| (iii) | Other than as set forth in the Intercure Disclosure Schedules, neither Intercure nor any of the Intercure Subsidiaries has a deferred compensation plan or share option plan covering any of its officers or employees. | |
| (iv) | Intercure and the Intercure Subsidiaries have complied with all applicable employment laws, policies, procedures and agreements relating to employment, terms and conditions of employment and to the proper withholding and remission to the proper tax and other Government Authorities of all sums required to be withheld from employees or persons deemed to be employees under applicable Laws respecting such withholding. | |
| (v) | Intercure and the Intercure Subsidiaries have paid in full to all of their respective employees the wages, salaries, commissions, bonuses, benefits and other compensation due and payable to such employees on or prior to the date hereof. | |
| (vi) | Neither Intercure nor any of the Intercure Subsidiaries is bound by or subject to (and none of their assets or properties is bound by or subject to) any written or oral, express or implied, contract, commitment or arrangement with any labor union other than by way of any applicable employment laws and regulations and extension orders (“tzavei harchava”) applicable in its field of business or applicable to all employers in Israel. | |
| (vii) | Neither the employment by Intercure or any of the Intercure Subsidiaries of any of their respective employees, nor the engagement by them with any of their respective consultants, constitutes or is likely to constitute a breach of any of such Person’s obligations to third parties, including non-competition or confidentiality obligations. |
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| (viii) | All persons classified by Intercure or the Intercure Subsidiaries as consultants or contractors thereof are correctly classified as such and not as employees for any purpose. All employees of Intercure and the Intercure Subsidiaries are subject to Section 14 Arrangement under the Israeli Severance Pay Law, 1963 from the commencement date of their employment and on the basis of their salary. Neither Intercure nor any of the Intercure Subsidiaries has any liability or obligations to pay any severance, pension, accrued vacation, or other social benefits and contributions, under applicable Law or contract, or any other payment of substantially the same nature, unless fully funded by deposit of funds in severance funds, pension funds, managers insurance policies or provident funds, or if not required to be so funded, adequate provisions have been made in the Financial Statements. | |
| (ix) | To the knowledge of Intercure, there are no outstanding labour disputes, (whether filed or lodged with Intercure or any of the Intercure Subsidiaries or any other person or organization), pending labour disruptions or pending unionization with respect to Intercure or the Intercure Subsidiaries. | |
| (x) | Neither Intercure nor any one of the Intercure Subsidiaries is bound by or a party to any collective bargaining agreement. |
| (v) | Restricted Payments. There is not, in the Governing Documents or in any agreement, mortgage, note, debenture, indenture or other instrument or document to which Intercure or any one of the Intercure Subsidiaries is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of Intercure or the Intercure Subsidiaries or the payment of dividends by Intercure or the Intercure Subsidiaries to the holders of their securities. | |
| (w) | Indebtedness. Except as disclosed in the Intercure Disclosure Schedules, neither Intercure nor any one of the Intercure Subsidiaries is party to any loan, bond, debenture, promissory note or other instrument evidencing indebtedness (demand or otherwise) for borrowed money (“Debt Instrument”) or any agreement contract or commitment to create, assume or issue any Debt Instrument. | |
| (x) | Voting Restrictions. Neither Intercure nor any one of the Intercure Subsidiaries is a party to any agreement, nor is Intercure nor any one of the Intercure Subsidiaries aware of any agreement, which in any manner affects the voting control of any of the Intercure Shares or other securities of Intercure or the Intercure Subsidiaries. | |
| (y) | Change in Law. Neither Intercure nor any one of the Intercure Subsidiaries is aware of any pending or contemplated change to any applicable Law or governmental position that would materially affect the business of Intercure or the Intercure Subsidiaries taken as a whole or the legal environments under which Intercure and the Intercure Subsidiaries operate. | |
| (z) | No Material Misrepresentations or Omissions. No representation, warranty or statement of Intercure in this Agreement contains or will contain at the Effective Time any untrue statement of a material fact or omits or will omit to state any material fact necessary to make the statements contained herein or therein, in light of the circumstances under which made, not misleading. |
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| (aa) | Corporate Records. The corporate records and minute books of Intercure and the Intercure Subsidiaries contain, in all material respects, minutes of all meetings of the directors and shareholders since their respective dates of incorporation, together with the full text of all resolutions of directors and shareholders passed in lieu of such meetings, duly signed. The Intercure Disclosure Schedules set forth a complete list of all share registers, board registers and lien and pledge registers required by Law for Intercure and each Intercure Subsidiary. | |
| (bb) | Due Diligence Sessions. The responses given by Intercure and its officers and directors in the Due Diligence Sessions were true and correct where they relate to matters of fact in all material respects as at the time such responses were given and at the date hereof, and such responses taken as a whole do not omit any fact or information necessary to make any of the responses not misleading in light of the circumstances in which such responses were given. Where such responses reflect the opinion or view of Intercure or such officers and directors (including, responses or portions of such responses, which are forward-looking or otherwise relate to projections, forecasts or estimates of future performance or results (operating, financial or otherwise)), such opinions or views were honestly held and believed to be reasonable at the time they were given and at the date hereof. | |
| (cc) | Financial Statements. |
| (i) | The Intercure Financial Statements (including the notes thereto) (i) have been prepared in accordance with IFRS consistently applied throughout the periods covered thereby, (ii) present fairly in all material respects the assets, liabilities and financial condition of Intercure and its Subsidiaries as of such dates and the results of operations and cash flows of Intercure and its Subsidiaries for such periods, and (iii) are consistent with the books and records of Intercure (which books and records are accurate and complete in all material respects). Since the Reference Date, there has been no change in any accounting principles, policies, methods or practices, including any change with respect to reserves (whether for bad debt, contingent liabilities or otherwise) of Intercure or its Subsidiaries. | |
| (ii) | Intercure and the Intercure Subsidiaries do not have any liabilities, that would have been required by IFRS to be reflected in, reserved against or otherwise described in a consolidated balance sheet, except (a) as and to the extent specifically accrued for or reserved against in the consolidated balance sheet of Intercure and its Subsidiaries as of September 30, 2020 (the “Balance Sheet”), (b) liabilities which have arisen after the date of the Balance Sheet in the ordinary course (none of which results from, arises out of, relates to, is in the nature of, or was caused by any breach of contract, breach of warranty, tort, infringement or violation of Law), (c) executory obligations under contracts (other than liabilities relating to any breach, or any fact or circumstance that, with notice, lapse of time or both, would result in a breach, thereof by Intercure or any Intercure Subsidiary), and (d) liabilities specifically set forth in the Intercure Disclosure Schedules. |
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| (dd) | Conduct of Business. Since September 30, 2020 (the “Reference Date”), (a) each of Intercure and the Intercure Subsidiaries has conducted its business only in the ordinary course; (b) no event has occurred that, individually or in combination with any other events, has had or would reasonably be expected to have Material Adverse Effect; and (c) none of Intercure and the Intercure Subsidiaries has suffered any loss, damage, destruction or other casualty affecting any of its material properties or assets, whether or not covered by insurance. | |
| (ee) | Customers. The Intercure Disclosure Schedules contains a complete and accurate list of the ten (10) largest customers to Intercure and the Intercure Subsidiaries, taken as a whole, (consolidating into a single customer all affiliated customers) by the aggregate dollar value of revenue received by Intercure and the Intercure Subsidiaries, taken as a whole, during the twelve month period ended December 31, 2020 (each a “Top Customer”). Since September 30, 2020, no Top Customer has terminated or adversely modified the amount, pricing, frequency or terms of the business such Top Customer conducts with Intercure or any Intercure Subsidiary. Neither Intercure nor any Intercure Subsidiary has received any written notice, nor does Intercure have knowledge, that any Top Customer will terminate or adversely modify the amount, pricing, frequency or terms of the business such Top Customer conducts with Intercure or any Intercure Subsidiary. There is no material dispute pending with any Top Customer, and neither Intercure nor any Intercure Subsidiary has received any written notice, nor does Intercure have any knowledge, of a reasonable basis for any such dispute. | |
| (ff) | Suppliers. The Intercure Disclosure Schedules contains a complete and accurate list of (i) the ten (10) largest suppliers to Intercure and the Intercure Subsidiaries, taken as a whole, (excluding utilities) by the aggregate dollar value of purchases by Intercure and the Intercure Subsidiaries, taken as a whole, during the twelve month period ended December 31, 2020 (each a “Top Supplier”). Since September 30, 2020, no Top Supplier has terminated or adversely modified the amount, pricing, frequency or terms of the business such Top Supplier conducts with Intercure or any Intercure Subsidiary. Neither Intercure nor any Intercure Subsidiary has received any written notice, nor does Intercure have knowledge, that any Top Supplier will terminate or adversely modify the amount, pricing, frequency or terms of the business such Top Supplier conducts with Intercure or any Intercure Subsidiary. There is no material dispute pending with any Top Supplier, and neither Intercure nor any Intercure Subsidiary has received any written notice, nor does Intercure have any knowledge, of a reasonable basis for any such dispute. | |
| (gg) | Related Party. No Related Party has any direct or indirect interest in (a) any Top Customer or Top Supplier or (b) any assets or property used by Intercure or any Intercure Subsidiary (including any intellectual property). The Intercure Disclosure Schedules sets forth the parties to and the date, nature and amount of each Related Party Transaction since the Reference Date (other than salary or other compensation or benefits paid or payable in the ordinary course of business consistent with past practice to employees in consideration for bona fide services performed by such employees). |
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| (hh) | Real Property. |
| (i) | The Intercure Disclosure Schedules sets forth a complete list, including an address of each leasehold or subleasehold estate or other right to use or occupy any interest in real property held by Intercure or any Intercure Subsidiary (“Leased Real Property”) and the Real Property Leases (including all amendments, guaranties and other agreements with respect thereto) relating to each such Leased Real Property. With respect to each Leased Real Property, (i) Intercure’s or the relevant Intercure Subsidiary’s (as applicable) possession and quiet enjoyment under the applicable Real Property Lease has not been disturbed, and nor does Intercure have knowledge of any disputes with respect to any Real Property Lease, (ii) neither Intercure nor any Intercure Subsidiary has subleased, licensed or otherwise granted any person the right to use or occupy any Leased Real Property or any portion thereof, or collaterally assigned or granted any security interest in such Leased Real Property or any interest therein and (iii) there are no special, general or other assessments pending against Intercure or any Intercure Subsidiary or affecting any Leased Real Property that would be payable by the lessee thereof. Neither Intercure nor any Intercure Subsidiary or any other party to a Real Property Lease is or has been in breach or default under such Real Property Lease, and no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification, or acceleration or increase of rent under such Real Property Lease. No security deposit or portion thereof deposited with respect to any Real Property Lease has been applied in respect of a breach or default under any Real Property Lease which has not been redeposited in full. Neither Intercure nor any Intercure Subsidiary owes, or will owe in the future, any brokerage commissions or finder’s fees with respect to any Real Property Lease. | |
| (ii) | The Leased Real Property comprises all of the real property that is used in or otherwise related to the businesses of Intercure and each Intercure Subsidiary. To the knowledge of Intercure, all buildings, structures, improvements, fixtures, building systems (including HVAC, electrical, plumbing and sewer systems) and equipment, and all components thereof, included in the Leased Real Property (collectively, “Improvements”) are in good condition and repair and are sufficient for the operation of the businesses of Intercure and each Intercure Subsidiary as currently conducted. To the knowledge of Intercure, there are no structural deficiencies or latent defects affecting any of the Improvements and, there are no facts or conditions affecting any of the Improvements which would, individually or in the aggregate, interfere in any respect with the use or occupancy of the Improvements or any portion thereof in the operation of the business conducted thereon. Neither Intercure nor any Intercure Subsidiary has received any written notice from any insurance company or board of fire underwriters of any defects or inadequacies that could adversely affect the insurability of any Leased Real Property or requesting the performance of any work or alteration with respect to any Leased Real Property. To the knowledge of Intercure, there is no pending or threatened condemnation, expropriation or other governmental taking of any part or interest in any Leased Real Property. The current and intended use and occupancy of the Leased Real Property and the operation of Intercure’s and each Intercure Subsidiary’s businesses as currently conducted do not violate any applicable zoning law, easement, covenant, condition, restriction or similar provision in any instrument of record affecting the Leased Real Property. To the knowledge of Intercure, no fact or condition exists that could result in the termination or impairment of presently available access from adjoining public or private streets or ways or in the discontinuation of presently available sewer, water, electric, gas, telephone or other utilities or services for any Leased Real Property. |
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| (ii) | Cannabis Matters. All products manufactured, processed, marketed, distributed, sold or delivered by Intercure or any Intercure Subsidiary have been in conformity with all applicable warranties, and neither Intercure nor any Intercure Subsidiary has any material liability for replacement thereof or other material damages in connection therewith in excess of any warranty reserve established with respect thereto on the Balance Sheet as adjusted for the passage of time through the Effective Date in accordance with the past custom and practice of Intercure and the Intercure Subsidiaries. Each product manufactured, sold or delivered by Intercure and the Intercure Subsidiaries is in compliance in all material respects with all applicable Laws controlling the cultivation, harvesting, production, handling, storage, distribution, sale, and possession of Cannabis. Any products sold by Intercure or the Intercure Subsidiaries that were purchased by Intercure or an Intercure Subsidiary from a third parties was, to the knowledge of Intercure, cultivated, harvested, produced, tested, handled and delivered in accordance with all applicable Law in all material respects, and were purchased from suppliers duly licensed to cultivate, harvest and produce such products. The breeding, cultivation, harvesting, production, storage, distribution import, export and sale of medical cannabis in Israel is permitted by applicable Law. Neither Intercure nor any Intercure Subsidiary has used any substance, including pesticides, prohibited by Laws applicable in the states and localities in which such Person operates, in any prohibited amount at any stage of the cultivation, harvesting, handling, storage or delivery of such products. Intercure and the Intercure Subsidiaries have performed (or caused to be performed by third parties) all material and necessary tests and obtained all test certificates and certificates of ingredients required by applicable Law, including tests for microbials, contaminants, residuals, and pesticides, with respect to any product manufactured, sold or delivered by Intercure or such Intercure Subsidiary. To the knowledge of Intercure, no products manufactured, sold or delivered by Intercure contain any prohibited pesticides, contaminants or any other substance prohibited by any Law. Neither Intercure nor any Intercure Subsidiary has received any written notice of any claims for, and to Intercure’s knowledge there is no reasonable basis for, any extraordinary product recalls relating to any of its products or services. Neither Intercure nor any Intercure Subsidiary has had or has any material liability arising out of any injury to individuals or property as a result of the ownership, possession or use of any products manufactured, sold or delivered by Intercure or any Intercure Subsidiary or with respect to any services rendered by Intercure or any Intercure Subsidiary. Intercure and the Intercure Subsidiaries are in material compliance with all applicable advertising or labeling requirements that prohibit “drug” claims on products that have not received the appropriate drug approval. Intercure and the Intercure Subsidiaries are in material compliance with all applicable advertising or labeling requirements that prohibit “drug” claims on products that have not received the appropriate drug approval. |
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| (jj) | Information. None of the information or financial statements relating to Intercure and any Intercure Subsidiary included or to be included in the Information Circular, the Prospectus, the U.S. Registration Statement or the U.S. Resale Registration Statement, or that have been and will be included in any information statement or proxy statement relating to the Business Combination do or will contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading and, in respect of the Information Circular, Prospectus, the U.S. Registration Statement or the U.S. Resale Registration Statement, as applicable, will constitute full, true and plain disclosure of all material facts relating to Intercure and the Intercure Subsidiaries as required by applicable Securities Laws. | |
| (kk) | Public Filings. Intercure has filed or furnished to the TASE and the ISA, in the 36 months preceding the Effective Date, all reports, schedules, forms, statements and other documents required to be filed with or furnished under the Israeli Securities Law 5728-1968 and the regulations promulgated thereunder (the “Filed Documents”), on a timely basis or has received a valid extension of such time of filing and has filed any such Filed Documents prior to the expiration of any such extension. All of the Filed Documents have been prepared in accordance with the Israeli Securities Law and, subject to the foregoing, each of the Filed Documents (including the financial statements or schedules included therein) as of the respective date of filing, did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. | |
| (ll) | Privacy and Information Security. Intercure and each Intercure Subsidiary is and has been in material compliance with (a) all Privacy and Information Security Requirements, (b) its internal and external privacy policies and notices and (c) all contracts relating to the Processing of Personal Data. Neither Intercure nor any Intercure Subsidiary, nor to Intercure’s knowledge, any other Person, has received any written notice, allegation, complaint or other communication, and, to Intercure’s knowledge, there is no pending investigation by any Governmental Authority or payment card association, regarding any actual or alleged violation of any Privacy and Information Security Requirement by or with respect to Intercure or any Intercure Subsidiary. To Intercure’s knowledge, neither Intercure nor any Intercure Subsidiary has suffered a security breach with respect to any of the Intercure Data and there has been no unauthorized or illegal use of or access to any Intercure Data. Neither Intercure nor any Intercure Subsidiary has notified, or, to Intercure’s knowledge, has been required to notify, any Person of any information security breach involving Personal Data. Intercure and each Intercure Subsidiary employs and has employed commercially reasonable security measures that materially comply with all Privacy and Information Security Requirements and are designed to protect Intercure Data within its custody or control and requires the same of all vendors that Process Intercure Data on its behalf. Intercure and each Intercure Subsidiary has provided all requisite notices and obtained all required consents, and satisfied all other requirements (including to notify Governmental Authorities) to the extent required under the Privacy and Information Security Requirements for such Person’s Processing (including international and onward transfer) of all Personal Data in connection with the conduct of the business of Intercure or such Intercure Subsidiary. The execution, delivery, performance and consummation of the transaction contemplated hereunder comply with Intercure’s and each Intercure Subsidiary’s applicable Privacy and Information Security Requirements. | |
| (mm) | Disclosure. Intercure has provided Subversive with all materials and information responsive to all due diligence requests made by Subversive, and none of such information contains any untrue statement of a material fact or omits a material fact necessary to make such information incomplete or misleading. |
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| 4.2 | Representations and Warranties of Subversive |
Except as set forth in the corresponding sections of the Subversive Disclosure Schedules attached hereto (collectively, the “Subversive Disclosure Schedules”) (each of which shall qualify only the specifically identified sections or subsections hereof to which such Subversive Disclosure Schedule relates and shall not qualify any other provision of this Agreement), Subversive hereby represents and warrants to Intercure as of the date hereof and as of the Effective Date, and acknowledges that Intercure is relying upon such representations and warranties in connection with the entering into of this Agreement, as follows:
| (a) | Due Formation. Subversive is a validly existing limited partnership under the laws of the Province of Ontario and is registered to carry on business under the laws of each jurisdiction in which it carries on its business. | |
| (b) | Power. Subversive through the General Partner has full power, capacity and authority to undertake all steps of the Business Combination contemplated in the Documents and to carry out its obligations under this Agreement. | |
| (c) | Share Capital. The authorized capital of Subversive consists of (i) an unlimited number of Subversive Restricted Voting Units, of which 22,500,000 Subversive Restricted Voting Units are currently issued and outstanding (ii) an unlimited number of Subversive Class B Units, of which 524,500 Subversive Class B Units are currently issued and outstanding, (iii) an unlimited number of Subversive Proportionate Voting Units, of which 57,562 Subversive Proportionate Voting Units (not taking into account the Subversive Proportionate Voting Units underlying the Class B Units) are currently issued and outstanding, and (iv) one general partnership unit, which is currently issued and outstanding; except for the 23,024,500 Subversive Rights, Subversive has no other securities outstanding nor is it a party to or has granted any agreement, warrant, option or right or privilege capable of becoming an agreement, for the purchase, subscription or issuance of any Subversive Restricted Voting Unit or Subversive Class B Unit or securities convertible into or exchangeable for any Subversive Class A Restricted Voting Unit or Subversive Class B Unit. | |
| (d) | Reporting Issuer. Subversive is a reporting issuer, or the equivalent thereof, in each of the provinces and territories of Canada (other than Quebec) (collectively, the “Reporting Jurisdictions”) and is not currently in default of any requirement of the applicable laws of each of the Reporting Jurisdictions and other regulatory instruments of the Subversive Securities Authorities, and no order ceasing, halting or suspending trading in securities of Subversive or prohibiting the distribution of such securities has been issued to and is outstanding against Subversive and no investigations or proceedings for such purposes are, to the knowledge of Subversive, pending or threatened. |
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| (e) | Compliance with Law. Subversive is in compliance in all material respects with all its disclosure obligations under applicable Laws and all documents filed by Subversive pursuant to such obligations are in compliance in all material respects with applicable Laws and, other than in respect of documents that have been amended or refiled did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. | |
| (f) | Subsidiaries. Subversive has no Subsidiaries other than the Subversive Subsidiaries, and is not a partner, co-tenant, joint venturer or otherwise a participant in any partnership, joint venture, co-tenancy or other similarly joint owned business. | |
| (g) | Permits; Licenses. Subversive has all requisite limited partnership capacity, power and authority, and possesses all material certificates, authority, permits and licenses issued by the appropriate state, provincial, municipal or federal regulatory agencies or bodies necessary to conduct the business as now conducted by it and to own its assets and is in compliance in all material respects with such certificates, authorities, permits or licenses. Subversive has not received any notice of proceedings relating to the revocation or modification of any such certificate, authority, permit or license which, singly or in the aggregate, if the subject of an unfavourable decision, order, finding or ruling, would materially and adversely affect the conduct of the business, operations, financial condition, income or future prospects of Subversive. | |
| (h) | Due Authorization, Execution and Delivery. Each of the Documents has been, or at the Effective Time will be, duly authorized and, with respect to this Agreement, executed and delivered by Subversive and constitutes a valid and binding obligation of Subversive enforceable in accordance with its terms (subject to such limitations and prohibitions as may exist or may be enacted in applicable laws relating to bankruptcy, insolvency, liquidation, moratorium, reorganization, arrangement or winding-up and other laws, rules and regulations of general application affecting the rights, powers, privileges, remedies and/or interests of creditors generally) and no other limited partnership proceeding on the part of Subversive, is necessary to authorize this Agreement and the transactions contemplated hereby. | |
| (i) | Consents; Authorizations. the entering into and the performance by Subversive of the transactions contemplated in the Documents: |
| (i) | do not require any consent, approval, authorization or order of any court or governmental agency or body, except that which may be required under applicable corporate and securities legislation and the policies of the Exchange; | |
| (ii) | will not contravene any statute or regulation of any Government Authority which is binding on Subversive where such contravention would have a Material Adverse Effect; and |
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| (iii) | will not result in the material breach of, or be in conflict with, or constitute a material default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a material default under any term or provision of the Governing Documents or resolutions of Subversive or any mortgage, note, indenture, contract or agreement, instrument, lease or other document to which Subversive is or will be a party, or any judgment, decree or order or any term or provision thereof, which breach, conflict or default would have a Material Adverse Effect. |
| (j) | Legal Proceedings. There are no legal or governmental proceedings pending or, to the knowledge of Subversive, contemplated or threatened, to which Subversive is a party or to which the assets or property of Subversive is subject. | |
| (k) | Financial Statements. |
| (i) | The audited financial statements of Subversive for the period from inception (the date of formation) through December 31, 2019 and the notes thereto (collectively, the “Subversive Financial Statements”), have been prepared in accordance with IFRS, present fairly, in all material respects, the financial position of Subversive as of such date, and do not omit to state any material fact that is required by IFRS or by applicable law to be stated or reflected therein or which is necessary to make the statements contained therein not misleading. | ||
| (ii) | Neither Subversive nor any one of the Subversive Subsidiaries has any outstanding material liability, whether direct, indirect, absolute or contingent or otherwise, which is not reflected in the Subversive Financial Statements. |
| (l) | Related Party. Except as disclosed in the Subversive Financial Statements, Subversive has not engaged in any transaction with any person that it is not dealing with at “arm’s length” (as such term is defined in the Income Tax Act (Canada)) since the beginning of the period covered by the Subversive Financial Statements. | |
| (m) | Taxes. All Taxes due and payable by Subversive have been paid or provision made therefor in the financial statements of Subversive except for where the failure to pay such Taxes would not result in a Material Adverse Effect for Subversive. All tax returns, declarations, remittances and filings required to be filed by Subversive have been filed with all appropriate Government Authorities and all such returns, declarations, remittances and filings are complete and accurate and no material fact or facts have been omitted therefrom which would make any of them misleading. To the knowledge of Subversive, no examination of any tax return of Subversive is currently in progress and there are no issues or disputes outstanding with any Government Authority respecting any Taxes that have been paid, or may be payable, by Subversive. There are no agreements with any taxation authority providing for an extension of time for any assessment or reassessment of Taxes with respect to Subversive. | |
| (n) | Brokers. Other than (i) the fees paid and payable to the underwriters in connection with the initial public offering of Subversive and in connection with the transactions contemplated herein, as disclosed in the Final IPO Prospectus, or (ii) to agents or advisors for services provided in connection with the qualifying transactions, as set forth on Section 4.2(o) of the Subversive Disclosure Schedules, there is no person, firm or company acting or purporting to act at the request of Subversive who is entitled to any brokerage or finder’s fee in connection with the transactions contemplated in the Documents. |
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| (o) | Compliance with Laws. Other than any non-compliance which would not result in a Material Adverse Effect in respect of Subversive, to the knowledge of Subversive, after due inquiry all activities of Subversive have been, up to and including the date hereof, conducted in compliance, in all material respects, with any and all applicable Laws. | |
| (p) | Qualifying Transaction. The Business Combination will satisfy the requirements of section 10.16(15) of the Exchange Listing Manual. |
| 4.3 | Representations and Warranties of the General Partner |
The General Partner hereby represents and warrants to Intercure as of the date hereof and as of the Effective Date, and acknowledges that Intercure is relying upon such representations and warranties in connection with the entering into of this Agreement, as follows:
| (a) | Due Formation. The General Partner is a validly existing corporation under the laws of the Province of Ontario and is registered to carry on business under the laws of each jurisdiction in which it carries on its business. | |
| (b) | Power. The General Partner has full power, capacity and authority to undertake all steps of the Business Combination contemplated in the Documents and to carry out its obligations under this Agreement. | |
| (c) | Share Capital. The authorized capital of the General Partner consists of one hundred (100) common shares. | |
| (d) | Due Authorization, Execution and Delivery. Each of the Documents has been, or at the Effective Time will be, duly authorized and, with respect to this Agreement, executed and delivered by the General Partner and constitutes a valid and binding obligation of the General Partner enforceable in accordance with its terms (subject to such limitations and prohibitions as may exist or may be enacted in applicable laws relating to bankruptcy, insolvency, liquidation, moratorium, reorganization, arrangement or winding-up and other laws, rules and regulations of general application affecting the rights, powers, privileges, remedies and/or interests of creditors generally) and no other corporate proceeding on the part of the General Partner, is necessary to authorize this Agreement and the transactions contemplated hereby. | |
| (e) | Consents; Authorizations. the entering into and the performance by the General Partner of the transactions contemplated in the Documents: |
| (i) | do not require any consent, approval, authorization or order of any court or governmental agency or body, except that which may be required under applicable corporate and securities legislation and the policies of the Exchange; |
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| (ii) | will not contravene any statute or regulation of any Government Authority which is binding on Subversive where such contravention would have a Material Adverse Effect; and | |
| (iii) | will not result in the material breach of, or be in conflict with, or constitute a material default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a material default under any term or provision of the Governing Documents or resolutions of Subversive or any mortgage, note, indenture, contract or agreement, instrument, lease or other document to which Subversive is or will be a party, or any judgment, decree or order or any term or provision thereof, which breach, conflict or default would have a Material Adverse Effect. |
| 4.4 | Survival |
For greater certainty, subject to the Indemnification Agreement, the representations and warranties of each of the Parties contained herein shall survive the execution and delivery of this Agreement and shall terminate and be extinguished on the earlier of the termination of this Agreement in accordance with its terms and the Effective Time; provided, however, that the Fundamental Representations shall survive indefinitely.
ARTICLE
5
COVENANTS
| 5.1 | Conduct of Business by the Parties |
Except as required by Law or as otherwise expressly permitted or specifically contemplated by this Agreement, each Party covenants and agrees that, during the period from the date of this Agreement until the earlier of either the Effective Time or the time that this Agreement is terminated by its terms, unless each of the other Parties shall otherwise agree in writing it shall, and shall cause its Subsidiaries to conduct business in, and not take any action except in, the usual and ordinary course of business, with the exception of reasonable costs incurred in connection with the Business Combination, and it shall and shall cause its Subsidiaries to use all commercially reasonable efforts to maintain and preserve its business organization, assets, employees and advantageous business relationships and it shall not, and shall cause its Subsidiaries to not, without the prior written consent of the other Parties, enter into any contract in respect of its business or assets, other than in the ordinary course of business, and without limitation but subject to the foregoing, shall maintain payables and other liabilities at levels consistent with past practice, shall not engage or commit to engage in any extraordinary material transactions and shall not make or commit to make distributions, dividends or special bonuses, without the prior written consent of the other Parties.
| 5.2 | Representations and Warranties |
| (a) | Intercure covenants and agrees that from the date hereof until the termination of this Agreement it shall not take any action, or fail to take any action, which would or may reasonably be expected to result in the representations and warranties set out in Section 4.1 being untrue in any material respect. | |
| (b) | Subversive covenants and agrees that, from the date hereof until the termination of this Agreement it shall not take any action, or fail to take any action, which would or may reasonably be expected to result in the representations and warranties set out in Section 4.2 being untrue in any material respect. |
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| (c) | The General Partner covenants and agrees that, from the date hereof until the termination of this Agreement it shall not take any action, or fail to take any action, which would or may reasonably be expected to result in the representations and warranties set out in Section 4.2 being untrue in any material respect. |
| 5.3 | Notice of Material Change |
| (a) | From the date hereof until the termination of this Agreement, each Party shall promptly notify the other Party in writing of: |
| (i) | any material change (actual, anticipated, contemplated or, to the knowledge of such Party or any of its Subsidiaries, threatened, financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of such Party and its Subsidiaries, taken as whole; | |
| (ii) | any change in the facts relating to any representation or warranty set out in Sections 4.1 or 4.2 hereof, as applicable, which change is or may be of such a nature as to render any such representation or warranty misleading or untrue in a material respect; or | |
| (iii) | any material fact which arises and which would have been required to be stated herein had the fact arisen on or prior to the date of this Agreement. |
| (b) | Each of the Parties shall in good faith discuss with the other any change in circumstances (actual, anticipated, contemplated or, to its knowledge of its or any of its Subsidiaries, threatened, financial or otherwise) which is of such a nature that there may be a reasonable question as to whether notice need to be given to the other pursuant to this Section. |
| 5.4 | Non-Solicitation |
| (a) | None of the Parties shall solicit any offers to purchase their respective shares or assets, or any portion above 5% thereof, and neither Subversive nor Intercure will, directly or indirectly, initiate, enter into or encourage any discussions or negotiations with any third party with respect to such a transaction or amalgamation, merger, take-over, plan of arrangement or similar transaction or a Going Public Transaction other than for this Business Combination during the period commencing on the date hereof and ending on the termination of this Agreement. The Parties shall immediately cease and cause to be terminated any existing discussions or negotiations with any third party related to any of the foregoing. In the event any of the Parties is approached in respect of any such transaction, it shall immediately notify the other. | |
| (b) | Notwithstanding this Section 5.4 and any other provision of this Agreement, any Intercure Shareholder shall, for greater certainty, have the right to sell, transfer and assign its Intercure Shares to any other Intercure Shareholder or to any officer and/or director of Intercure subject to any applicable Laws. |
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| 5.5 | Mutual Negative Covenants |
Each Party agrees that, from the date hereof until the earlier of the termination of this Agreement and the completion of the Arrangement, it shall not directly or indirectly do, permit to occur, authorize or agree to any of the following, other than to the extent required by the terms of this Agreement or the Plan of Arrangement:
| (a) | issue, grant, sell or pledge or agree to issue, grant, sell or pledge any shares, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire shares, including of any Subsidiary, other than: |
| (i) | in the case of Intercure: |
| (A) | in connection with the Arrangement; | ||
| (B) | the issuance of Intercure Shares and/or warrants upon the exercise of any Intercure Convertible Securities; | ||
| (C) | the grant of up to 4,303,356 Intercure Options (prior to the Intercure Share Consolidation) and other similar issuances pursuant to the Plan to directors, officers, employees or consultants, provided that any Intercure Option grants in excess of such 4,303,356 Intercure Options (prior to the Intercure Share Consolidation) must be exercisable at a price of not less than $1.30, per Intercure Share on a pre-Arrangement basis; and |
| (ii) | in the case of Subversive, |
| (A) | in connection with the Business Combination, including the issuance of 500,000 Subversive Limited Partnership Units to underwriters due as a result of consummation of the Qualifying Transaction; and | ||
| (B) | the issuance of Subversive Restricted Voting Units or Subversive Limited Partnership Units upon the exercise of any Subversive Rights; |
| (b) | except as otherwise described in the Final IPO Prospectus (and specifically in relation with a redemption event as described therein), redeem, purchase or otherwise acquire any of its outstanding shares or other securities including, without limitation, under an issuer bid; | |
| (c) | adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of itself or any of its Subsidiaries, except for the Business Combination or as otherwise contemplated in this Agreement; | |
| (d) | borrow any cash or incur any indebtedness, except as expressly contemplated by this Agreement or with the prior written consent of the other Parties and, in the case of Intercure, Intercure shall be permitted, without any prior consent of the other Parties, to: (A) incur trade payables in the ordinary course; and (B) borrow amounts not to exceed $1,000,000 in the aggregate; |
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| (e) | make loans, advances or other similar payments to any third party except as expressly contemplated by this Agreement and, in the case of Intercure, Intercure shall be permitted to (A) make routine advances to Intercure employees for expenses incurred in the ordinary course; or (B) as consented to by Subversive, which consent shall not be unreasonably withheld; | |
| (f) | declare, set aside or pay any dividend or other distribution or payment (whether in cash, shares or property) in respect of its shares owned by any Person other than inter-corporate loans and advances and except for the Business Combination or as otherwise contemplated by this Agreement; | |
| (g) | amend its Governing Documents or otherwise split, combine or reclassify any of its shares in any manner which may adversely affect the success of the Business Combination, except as required by the Business Combination or to give effect to the matters contemplated in this Agreement; | |
| (h) | enter into any transaction or material contract, except in the case of the transactions contemplated by the Business Combination; and | |
| (i) | engage in any business enterprise or activity different from that carried on as of the date hereof, without the prior written consent of the other Parties. |
| 5.6 | Intercure Negative Covenants |
Intercure agrees that, from the date hereof until the earlier of the termination of this Agreement and the completion of the Arrangement, it shall not directly or indirectly do, permit to occur, authorize or agree to any of the following:
| (a) | sell, transfer, deliver, lease, license, sublicense, mortgage, pledge, encumber, impair or otherwise dispose of (in whole or in part), or create, incur, suffer to exist, assume or cause to be subjected to any lien on or abandon, cancel or allow to lapse, any of the material assets, rights or properties of Intercure or any Intercure Subsidiary (including any intellectual property or accounts receivable), except for sales of inventory or non-exclusive licenses of intellectual property in the ordinary course; | |
| (b) | amend, waive, release or terminate any Material Contract (other than terminations upon any expiration of the terms of any Material Contract in the ordinary course); | |
| (c) | (A) increase the compensation or fringe benefits of any employee (except for increases in salary for employees with annual compensation of less than $200,000 in the ordinary course), (B) hire or offer to hire any new employees with annual compensation in excess of $200,000 or terminate or encourage any employee to resign from Intercure or an Intercure Subsidiary other than in the Ordinary Course, (C) grant any severance or termination pay (in cash or otherwise) to any current or former employee, except pursuant to any contract or employee benefit plan in effect on the date hereof in connection with the termination of any such employee or increase in severance or termination pay, or (D) establish, adopt, enter into, materially amend or terminate (or grant any waiver or consent under) any employee benefit plan, except for any amendments required by applicable Law, |
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| (d) | enter into or amend any collective bargaining agreement or contract with any labour union or other labour organization; | |
| (e) | make any change to its methods of accounting or accounting practices, policies or procedures (including with respect to reserves, revenue recognition, inventory control, prepayment of expenses, timing for payments of accounts payable and collection of accounts receivable), except as required by IFRS or applicable Law; | |
| (f) | (A) make or change any material Tax election or change any method of tax accounting, (B) settle or compromise any material Tax liability, (C) file any material amended Tax return, (D) enter into any closing agreement relating to any Tax, (E) agree to an extension of a statute of limitations with respect to Taxes, or (F) surrender any right to claim a Tax refund in any case that would reasonably be expected to be material; | |
| (g) | other than in the ordinary course, commence, make payment with respect to, discharge, satisfy, settle or otherwise compromise any legal proceeding or waive, assign or release any material rights or claims (other than legal proceedings arising out of this Agreement); | |
| (h) | commence, settle, compromise or otherwise resolve any legal proceeding or waive, assign or release any material rights or claims, except (A) with respect to routine matters in the ordinary course, (B) in such cases where Intercure reasonably determines in good faith that the failure to take any such action with respect to such legal proceeding would result in a material impairment of its rights with respect thereto, provided that Intercure consults with Subversive prior to commencing such Proceeding or (C) any legal proceeding arising out of this Agreement; | |
| (i) | other than as permitted under subsection (c) above, engage in, enter into or modify or amend any agreement, contract, transaction or other arrangement with, directly or indirectly, any Related Party; | |
| (j) | terminate, amend or fail to renew or preserve any material permit, license or governmental authorization; | |
| (k) | terminate, amend, fail to renew or preserve, or permit to lapse or enter the public domain, any material intellectual property, except for amendments to registered or applied for intellectual property completed in the ordinary course of business consistent with past practice; | |
| (l) | permit the lapse of any existing material insurance policy relating to the business or assets of Intercure or any Intercure Subsidiary; | |
| (m) | make any material changes in Intercure’s or any Intercure Subsidiary’s practices and policies relating to manufacturing, purchasing, inventory management, marketing, selling or pricing, except in the ordinary course; and | |
| (n) | take or omit to take any action (or permit any Affiliate, officer, director, manager, employee, attorney, accountant, consultant, financial advisor or other agent of Intercure or any Intercure Subsidiary to take or omit to take any action) that would, or could reasonably be expected to, (A) result in any of Intercure’s representations and warranties set forth in this Agreement or any certificate delivered in connection with the Business Combination being or becoming untrue, or (B) result in a failure to satisfy any of the conditions set forth in Article 6; |
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| 5.7 | Support of Business Combination |
| (a) | Each Party covenants and agrees that it shall: |
| (i) | take all reasonable actions to consummate the Business Combination and the transactions contemplated thereunder, subject only to the terms and conditions hereof and to not take any action contrary to or in opposition to the Business Combination, except as required by statutory law, and in the case of Intercure, use its commercially reasonable efforts to cause its shareholders to vote their respective shares in favour of the Business Combination and all of the matters contemplated thereunder, | |
| (ii) | use all commercially reasonable efforts to obtain all appropriate Regulatory Approvals; | |
| (iii) | not, other than in connection with the Business Combination, reorganize, amalgamate or merge with any other person, nor acquire by amalgamating, merging or consolidating with, purchasing a majority of the voting securities or substantially all of the assets of or otherwise, any business or Person which acquisition or other transaction would reasonably be expected to prevent or materially delay the Business Combination contemplated hereby; and | |
| (iv) | co-operate fully with the other Parties and to use all commercially reasonable efforts to otherwise complete the Business Combination, unless such cooperation and efforts would subject such Party to liability or would be in breach of applicable Laws. |
| 5.8 | Other Filings |
The Parties shall, as promptly as practicable hereafter, prepare and file all filings required under any Securities Laws or any other applicable Laws relating to the Business Combination contemplated hereby.
| 5.9 | Additional Agreements |
Subject to the terms and conditions of this Agreement and subject to fiduciary obligations under applicable Laws, each of the Parties hereto agrees to use all commercially reasonable efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective as promptly as practicable the Business Combination contemplated by this Agreement and to cooperate with each other in connection with the foregoing, including using commercially reasonable efforts:
| (a) | to obtain all necessary waivers, consents and approvals from other Parties to material agreements, leases and other contracts or agreements; |
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| (b) | to defend all lawsuits or other legal proceedings challenging this Agreement or the consummation of the Business Combination contemplated hereby; | |
| (c) | to cause to be lifted or rescinded any injunction or restraining order or other order adversely affecting the ability of the Parties to consummate the Business Combination contemplated hereby; | |
| (d) | to effect all necessary registrations and other filings and submissions of information requested by the ISA, TASE, NEO, TSX and Nasdaq; | |
| (e) | to effect all necessary registrations and other filings and submissions of information requested by Government Authorities; and | |
| (f) | to fulfill all conditions and satisfy all provisions of this Agreement. |
For purposes of the foregoing, the obligation to use “commercially reasonable efforts” to obtain waivers, consents and approvals to loan agreements, leases and other contracts shall not include any obligation to agree to a materially adverse modification of the terms of such documents or to prepay or incur additional material obligations to such other Parties.
5.10 Waiver of Access to Escrow Account. Notwithstanding anything to the contrary in this Agreement, Intercure hereby irrevocably waives and releases, and shall cause any Affiliate of Intercure in connection with the Business Combination, to waive and release, on substantially similar terms, any and all right, title, interest, causes of action and claims of any kind, whether in tort or contract or otherwise (each, a “Claim”), in or to, and any and all right to seek payment of any amounts due to it in connection with the Business Combination or this Agreement, out of the Escrow Account, or from monies or other assets released from the Escrow Account that are payable to holders of Subversive Restricted Voting Units or its underwriters, and hereby irrevocably waives and releases any Claim it may have in the future, as a result of, or arising out of, this Agreement or the Business Combination, which Claim would reduce or encumber any monies or other assets released from the Escrow Account that are payable to holders of Subversive Restricted Voting Units or its underwriters, or to any monies or other assets in the Escrow Account, and further agrees not to seek recourse, reimbursement, payment or satisfaction of any Claim against the Escrow Account, any monies or other assets released from the Escrow Account that are payable to holders of Subversive Restricted Voting Units or its underwriters or any monies or other assets in the Escrow Account for any reason whatsoever or to bring any proceedings against the Escrow Account or the Escrow Agent.
| 5.11 | Access. |
(a) Except to the extent prohibited by applicable Law, Intercure shall, and shall cause each Intercure Subsidiary to, (i) afford to Subversive and its representatives, reasonable access, during normal business hours and upon reasonable prior notice to Intercure, to all of the assets, properties, personnel, contracts, books and records of Intercure as Subversive may from time to time reasonably request, and (ii) furnish Subversive with such information relating to Intercure and the Intercure Subsidiaries as Subversive may from time to time reasonably deem necessary and advisable, provided that, with respect to clause (i), any such access shall be conducted in such a manner as not to interfere unreasonably with the operations of Intercure or the Intercure Subsidiaries.
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(b) Except to the extent prohibited by applicable Law, Subversive shall, and shall cause each Subversive Subsidiary to, (i) afford to Intercure and its representatives, reasonable access, during normal business hours and upon reasonable prior notice to Intercure, to all of the assets, properties, personnel, contracts, books and records of Subversive as Intercure may from time to time reasonably request, and (ii) furnish Intercure with such information relating to Subversive and the Subversive Subsidiaries as Intercure may from time to time reasonably deem necessary and advisable, provided that, with respect to clause (i), any such access shall be conducted in such a manner as not to interfere unreasonably with the operations of Subversive or the Subversive Subsidiaries.
(c) Upon Subversive’s request, Subversive and its representative shall be provided with reasonable access to suppliers and distributors of Intercure and the Intercure Subsidiaries, provided that such access shall require the prior written consent of Intercure (not to be unreasonably withheld, conditioned or delayed) and a representative of Intercure shall be entitled to participate in any discussions.
(d) Intercure shall report to Subversive, as and when reasonably requested, concerning the status of the operations, finances and affairs of the Intercure and its Subsidiaries and deliver to Subversive periodic financial reports in the form that it customarily prepares for its internal purposes.
ARTICLE
6
CONDITIONS AND CLOSING MATTERS
| 6.1 | Mutual Conditions Precedent |
The respective obligations of the Parties hereto to complete the Arrangement pursuant to the Plan of Arrangement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may be waived only by the mutual consent of the Parties:
| (a) | the requisite shareholder approvals of Intercure at the Intercure Meeting shall have been obtained; | |
| (b) | the Intercure Share Consolidation shall have occurred; | |
| (c) | the conditional approval of the NEO shall have been obtained by Subversive to enable the Business Combination to qualify as Subversive’s Qualifying Transaction; | |
| (d) | a final receipt for the Prospectus shall have been issued by or on behalf of the Subversive Securities Authorities; | |
| (e) | the Interim Order and the Final Order shall have each been obtained on terms consistent with this Agreement; | |
| (f) | the U.S. Registration Statement shall have become effective under the Securities Exchange Act and the Intercure Shares shall have been approved for listing on the Nasdaq; |
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| (g) | approval for listing and trading of Subversive Limited Partnership Units on the TSX shall have been obtained; | |
| (h) | Intercure Shares shall have been approved for, and begun trading on, the TSX so as to enable the “dual listing” regime to apply to the Intercure Shares; | |
| (i) | ISA and TASE approval for listing and trading of Intercure Shares on the TSX and the TASE under the “dual listing” regime shall have been obtained; | |
| (j) | there shall have been no action taken under any applicable Law or by any Governmental Authority and there shall not be in force any order or decree restraining or enjoining the consummation of the Business Combination; | |
| (k) | all corporate and Regulatory Approvals shall have been obtained; and | |
| (l) | this Agreement shall not have been terminated pursuant to Article 7. |
If any of the above conditions shall not have been complied with or waived by the Parties on or before the Completion Deadline or, if earlier, the date required for the performance thereof, then a Party may terminate this Agreement in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. In the event that the failure to satisfy any one or more of the above conditions precedent results from a material default by a Party of its obligations under this Agreement and if such condition(s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a basis for its own non-compliance with its obligations under this Agreement.
| 6.2 | Additional Conditions Precedent to the Obligations of Intercure |
The obligations of Intercure to complete the Arrangement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of Intercure and may be waived by Intercure and any one or more of which, if not satisfied or waived, will relieve Intercure of any obligation under this Agreement):
| (a) | Neither Subversive nor the General Partner shall have breached, or failed to comply with, in any material respect, any of its covenants or other obligations under this Agreement; | |
| (b) | the representations and warranties of Subversive and the General Partner (other than the Subversive Fundamental Representations) contained in this Agreement (without giving effect to any “materiality” or “Material Adverse Effect” qualifiers) shall be true and correct in all respects as of the Effective Date with the same effect as if made as of the Effective Date (other than such representations and warranties that are made as of a specified date, which representations and warranties shall be true and correct as of such specified date), except where the failure of any such representations and warranties to be so true and correct has not had a Material Adverse Effect. The Subversive Fundamental Representations shall be true and correct in all material respects as of the Effective Date with the same effect as if made as of the Effective Date (other than such representations and warranties that are made as of a specified date, which representations and warranties shall be true and correct as of such specified date); |
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| (c) | the Financing shall have raised at least $25 million in gross proceeds at a price per unit not less than $10 per unit to Subversive; | |
| (d) | Immediately prior to the Effective Date, (i) the total available cash in the Escrow Account net of anticipated payments in respect of redemption plus (ii) amounts funded or committed pursuant to the Financing, shall be at least $55,000,000 (the “Minimum Cash Amount”). Such Minimum Cash Amount shall be unrestricted (subject to completion of a Qualifying Transaction) and Subversive (and the Subversive Subsidiaries) shall not have incurred any liabilities or obligations that are payable in cash in connection with the Business Combination (including all transaction costs of Subversive, and all reasonable legal and accounting fees of Intercure) in excess of $15,000,000 (plus the amount of any credit to the fees of the TSX Listing obtained by Subversive for the benefit of Intercure); and | |
| (e) | The Boards of Directors of the General Partner and the officers and Governing Documents of Subversive and the General Partner shall have been replaced and/or amended, as applicable, as requested by Intercure. |
If any of the above conditions shall not have been complied with or waived by Intercure on or before the Completion Deadline or, if earlier, the date required for the performance thereof, then Intercure may terminate this Agreement in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by Intercure. In the event that the failure to satisfy any one or more of the above conditions precedent results from a material default by Intercure of its obligations under this Agreement and if such condition(s) precedent would have been satisfied but for such default, Intercure shall not rely on such failure (to satisfy one or more of the above conditions) as a basis for its own noncompliance with its obligations under this Agreement.
| 6.3 | Additional Conditions Precedent to the Obligations of Subversive |
The obligations of Subversive to complete the Arrangement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of Subversive and may be waived by Subversive and any one or more of which, if not satisfied or waived, will relieve Subversive of any obligation under this Agreement):
| (a) | no Material Adverse Effect with respect to Intercure or the Intercure Subsidiaries taken as a whole shall have occurred between September 30, 2020 and the Effective Date; | |
| (b) | Intercure shall not have breached, or failed to comply with, in any material respect, any of its covenants or other obligations under this Agreement; | |
| (c) | Intercure shall have obtained all third party consents and authorizations required to be obtained as set forth in the Intercure Disclosure Schedules in response to Section 4.1(i)(c); |
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| (d) | the representations and warranties of Intercure (other than the Intercure Fundamental Representations) contained in this Agreement (without giving effect to any “materiality” or “Material Adverse Effect” qualifiers) shall be true and correct in all respects as of the Effective Date with the same effect as if made as of the Effective Date (other than such representations and warranties that are made as of a specified date, which representations and warranties shall be true and correct as of such specified date), except where the failure of any such representations and warranties to be so true and correct has not had a Material Adverse Effect. The Intercure Fundamental Representations shall be true and correct in all material respects as of the Effective Date with the same effect as if made as of the Effective Date (other than such representations and warranties that are made as of a specified date, which representations and warranties shall be true and correct as of such specified date); | |
| (e) | Subversive, Intercure and the Representative shall have entered into the Indemnification Agreement; | |
| (f) | Subversive shall have received Support and Lock-Up Agreements duly executed by all Intercure directors and officers; | |
| (g) | All Intercure Shares required to be issued pursuant to and in accordance with this Agreement and the Plan of Arrangement shall have been validly and irrevocably issued, not subject to withholding of any kind, shall be fully paid and non-assessable, and shall not be subject to any restrictions under Israeli Law that prevent such Intercure Shares from being freely tradeable on TASE or TSX or becoming freely tradeable on Nasdaq; and | |
| (h) | The Director Appointment shall have occurred and the Boards of Directors and officers of Intercure shall be as set forth in Section 2.3. |
If any of the above conditions shall not have been complied with or waived by Subversive on or before the Completion Deadline or, if earlier, the date required for the performance thereof, then Subversive may terminate this Agreement in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by Subversive. In the event that the failure to satisfy any one or more of the above conditions precedent results from a material default by Subversive of its obligations under this Agreement and if such condition(s) precedent would have been satisfied but for such default, Subversive shall not rely on such failure (to satisfy one or more of the above conditions) as a basis for its own noncompliance with its obligations under this Agreement.
| 6.4 | Closing Matters |
The completion of the transactions contemplated under this Agreement shall be effected via electronic exchange on the Effective Date.
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ARTICLE
7
TERMINATION AND AMENDMENT
| 7.1 | Termination |
This Agreement may be terminated by written notice promptly given to the other Party hereto, at any time prior to the Effective Date:
| (a) | by mutual agreement in writing by the Parties; | |
| (b) | by either Subversive or Intercure if the Business Combination has not occurred on or prior to the Completion Deadline (provided that the failure of the Business Combination to occur by the Completion Deadline has not been caused by a breach of this Agreement or any other Document by the Party exercising the right to terminate this Agreement); and | |
| (c) | as set forth in Sections 6.1, 6.2 and 6.3 of this Agreement. |
| 7.2 | Effect of Termination |
In the event of the termination of this Agreement as provided in Section 7.1 hereof, this Agreement shall forthwith have no further force or effect and there shall be no obligation on the part of Subversive or Intercure hereunder except as set forth in Section 7.3 hereof and this Section 7.2, which provisions shall survive the termination of this Agreement. Nothing herein shall relieve any Party from liability for any breach of this Agreement.
| 7.3 | Expenses |
Each Party shall pay its own costs and expenses (including all legal, accounting and financial advisory fees and expenses) incurred in connection with the completion of the Business Combination, including without limitation, expenses related to the preparation, execution and delivery of all agreements including, without limitation, this Agreement and other documents referenced herein, and for greater certainty, Subversive shall be responsible for paying all costs and fees payable to the NEO in connection with its review of the Business Combination, all listing fees incurred or to be incurred in connection with the completion of the Business Combination and all costs and fees associated with the preparation and filing of the Prospectus or information circular, as may be required by the NEO, and Intercure shall be responsible for paying all costs and fees payable in connection with the filing of the U.S. Registration Statement and the U.S. Resale Registration Statement, and all fees and expenses of the Nasdaq Listing and the TSX Listing (provided no commitment to pay the listing fee for the TSX shall occur prior to certainty of consummation of the transactions).
| 7.4 | Amendment |
This Agreement may, at any time on or before the Effective Date be amended by mutual agreement between the Parties. This Agreement may not be amended except by an instrument in writing signed by the appropriate officers on behalf of each of the Parties hereto.
| 7.5 | Waiver |
A Party may (i) extend the time for the performance of any of the obligations or other acts of the other Party, (ii) waive compliance with any of the other Party’s agreements or the fulfillment of any of its conditions contained herein or (iii) waive inaccuracies in another Party’s representations or warranties contained herein or in any document delivered by the other Party hereto; provided, however, that any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Party.
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ARTICLE
8
GENERAL
| 8.1 | Notices |
All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made as of the date delivered or sent if delivered personally or sent by e-mail or sent by prepaid overnight courier to the Parties at the following addresses (or at such other addresses as shall be specified by the Parties by like notice):
| if to Intercure, to: | |||
| Intercure Ltd. | |||
| 85 Medinat Hayehudim Boulevard | |||
| Herzeliya Pituach | |||
| Israel | |||
| Attention: | Alex Rabinovitch, CEO | ||
| E-mail: | alex@canndoc-pharma.com | ||
| with a copy (which shall not constitute notice) to: | |||
| Doron Tikotzky Kantor Gutman Nass & Amit Gross | |||
| BSR 4, 33rd Floor | |||
| 7 Metsada Street | |||
| Bnei Brak | |||
| Israel | |||
| Attention: | Ronen Kantor, Adv. | ||
| E-mail: | rkantor@dtkgg.com | ||
| if to Subversive, to: | |||
| Subversive Real Estate Acquisition REIT LP/ | |||
| Subversive Real Estate Sponsor LLC | |||
| 135 Grand Street, 2nd Floor | |||
| New York, NY 10013 | |||
| Attention: Leland Hensch | |||
| Email: | leland@subversivecapital.com | ||
| with a copy (which shall not constitute notice) to: | |||
| Paul Hastings LLP | |||
| 200 Park Avenue | |||
| New York, NY 10166 | |||
| Attention: Barry A. Brooks | |||
| Email: | barrybrooks@paulhastings.com | ||
| Goodmans LLP | |||
| 333 Bay St., Suite 3400 | |||
| Toronto, ON M5H 2S7 | |||
| Attention: Stephen Pincus | |||
| Email: | spincus@goodmans.ca | ||
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| 8.2 | Assignment |
Except as expressly permitted by the terms hereof, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by either of the Parties hereto without the prior written consent of the other Party which shall not be unreasonably withheld.
| 8.3 | Complete Agreement |
This Agreement sets forth the entire understanding between the Parties hereto and supersedes all prior agreements, arrangements and communications, whether oral or written, with respect to the subject matter hereof. No other agreements, representations, warranties or other matters, whether oral or written, shall be deemed to bind the Parties hereto with respect to the subject matter hereof.
| 8.4 | Further Assurances |
Each Party hereto shall, from time to time, and at all times hereafter, at the request of the other Party hereto, but without further consideration, do all such further acts and execute and deliver all such further documents and instruments as shall be reasonably required in order to fully perform and carry out the terms and intent hereof.
| 8.5 | Severability |
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law. Any provision of this Agreement that is invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
| 8.6 | Counterpart Execution |
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
| 8.7 | Investigation by Parties |
No investigations made by or on behalf of either Party or any of their respective authorized agents at any time shall have the effect of waiving, diminishing the scope of or otherwise affecting any representation, warranty or covenant made by the other Party in or pursuant to this Agreement.
| 8.8 | Public Announcement; Disclosure and Confidentiality |
| (a) | Unless and until the transactions contemplated in this Agreement will have been completed, none of the Parties shall make any public announcement concerning this Agreement or the matters contemplated herein, their discussions or any other memoranda, letters or agreements between them relating to the matters contemplated herein without the prior consent of the other Parties, provided that no party shall be prevented from making any disclosure which is required to be made by law or any rules of a stock exchange or similar organization to which it is bound. In the event a Party is required to disclose information related to the transactions contemplated in this Agreement pursuant to applicable Law, regulation or the rules of a stock exchange or similar organization, such Party will be responsible for the accuracy of such disclosure and that it contains no misrepresentations and constitutes a true and plain disclosure of all material facts. For the avoidance of doubt, Subversive will not be responsible for any information included in any disclosure made by Intercure. |
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| (b) | All information provided to or received by the parties hereunder shall be treated as confidential (“Confidential Information”). Without limiting the foregoing, the Parties acknowledge that Intercure’s shares are listed on the TASE, and Subversive’s shares are traded on the NEO, and each Party’s Confidential Information may be considered “inside information” pursuant to Israeli securities laws and regulations, and/or material non-public information in accordance with applicable Canadian and United States securities laws. Subject to the provisions of this Section, no Confidential Information shall be published by any party hereto without the prior written consent of the others. The consent required by this Section shall not apply to a disclosure to: (a) comply with any applicable laws, stock exchange rules or a regulatory authority having jurisdiction; (b) a director, officer or employee of a party; (c) an Affiliate of a party; (d) a consultant, contractor or subcontractor of a party that has a bona fide need to be informed; or (e) any third party to whom the disclosing party has assigned (in compliance with the terms of this Agreement) any of its rights under this Agreement; provided, however, that in the case of subsection (a), such disclosing Party shall give the other Parties a reasonable opportunity to review and comment on such disclosure and will consider such comments in good faith, and in the case of subsection (e) the third party or parties, as the case may be, agree to maintain in confidence any of the Confidential Information so disclosed to them. | |
| (c) | The obligations of confidence and prohibitions against use of Confidential Information under this Agreement shall not apply to information that the disclosing party can show by reasonable documentary evidence or otherwise: (a) as of the date of this Agreement, was in the public domain; (b) after the date of this Agreement, was published or otherwise became part of the public domain through no fault of the disclosing party or an Affiliate thereof (but only after, and only to the extent that, it is published or otherwise becomes part of the public domain); or (c) was information that the disclosing party or its Affiliates were required to disclose pursuant to the order of any Government Authority or judicial authority. |
| 8.9 | Representative. |
| (a) | By executing and delivering a Letter of Transmittal or by virtue of consummation of the Plan of Arrangement, each Subversive Limited Partner hereby irrevocably constitutes and appoints Subversive Real Estate Sponsor LLC as its true and lawful attorney-in-fact and agent (the “Representative”) with full power of substitution to do any and all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated hereby and the exercise of all rights and the performance of all obligations hereunder, including: (i) receiving payments under or pursuant to this Agreement and disbursements thereof to the Subversive Limited Partner, as contemplated by this Agreement; (ii) receiving and forwarding of notices and communications pursuant to this Agreement and accepting service of process; (iii) giving or agreeing to, on behalf of all the Subversive Limited Partner, any and all consents, waivers and amendments deemed by the Representative, in its reasonable and good faith discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; and (iv) with respect to any and all matters arising under this Agreement, (A) disputing or refraining from disputing, on behalf of each Subversive Limited Partner relative to any amounts to be received by the Subversive Limited Partner under this Agreement or any agreements contemplated hereby, or any claim made by Subversive under this Agreement, (B) negotiating and compromising, on behalf of each Subversive Limited Partner, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement, and (C) executing, on behalf of each Subversive Limited Partner, any settlement agreement, release or other document with respect to such dispute or remedy, except in each case with respect to a dispute between any Subversive Limited Partner on the one hand and the Representative on the other hand; provided, however, that, in each case, the Representative shall not take any action adverse to any Subversive Limited Partner unless such action is also taken proportionately with respect to the others. |
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| (b) | Each Subversive Limited Partner hereby agrees that: (i) in all matters in which action by the Representative is required or permitted, the Representative is authorized to act on behalf of such Subversive Limited Partner; (ii) all decisions, actions, consents and instructions by the Representative shall be binding upon all of the Subversive Limited Partners, and no Subversive Limited Partner shall have the right to object to, dissent from, protest or otherwise contest any such decision, action, consent or instruction; and (iii) the appointment of the Representative is coupled with an interest and shall be irrevocable by such Subversive Limited Partner in any manner or for any reason. | |
| (c) | The Representative is hereby authorized to establish an expense fund (the “Expense Fund”), which shall be funded by Subversive at or prior to the consummation of the Arrangement in an amount of $50,000. The Representative may use the Expense Fund to pay or be reimbursed for any fees, costs, expenses or other obligations incurred by the Representative acting in its capacity as such. The Subversive Limited Partners will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Subversive Limited Partners at the time of Closing. The Parties agree that the Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund. The Representative shall be indemnified and held harmless by the Subversive Limited Partners out of the Expense Fund from and against any and all costs, expenses (including the fees and expenses of its counsel), losses or liabilities incurred by the Representative arising out of or in connection with the Representative’s execution and performance of this Agreement. The Expense Fund shall be retained in whole or in part by the Representative for such time as the Representative shall determine in its sole discretion. If the Representative shall determine in its sole discretion to return all or any portion of the Expense Fund, such amount shall be released to Intercure. In no event will the Representative be required to advance its own funds on behalf of the Subversive Limited Partners or otherwise. The foregoing indemnities will survive the consummation of the Arrangement, the resignation or removal of the Representative or the termination of this Agreement. |
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| INTERCURE LTD. | ||
| Per: | ||
| CANNDOC ACQUISITION SUBCO LTD. | ||
| Per: | ||
| SUBVERSIVE REAL ESTATE ACQUISITION REIT LP | ||
| Per: | ||
| SUBVERSIVE REAL ESTATE ACQUISITION REIT (GP) INC. | ||
| Per: | ||
| SUBVERSIVE REAL ESTATE SPONSOR LLC | ||
| Per: | ||
| -57- |
Schedule
A
PLAN OF ARRANGEMENT
(see attached)
| A-1 |
Exhibit 4.2
Partnership Agreement
Made and signed in Beit Ha’Emek on 21st of the month of May 2015
| Between: | Canndoc Ltd. |
| Private company limited in shares | |
| Pcn 51441851 | |
| Pob 4367 (Geula branch) Tel Aviv - Yafo | |
| By managers and authorized signatories: Yaron Blovstein and Avner Barak | |
| (hereinafter: “Canndoc”) |
Of the One Part
| And Between: | Beit Ha’Emek Agriculture - Cooperative Agricultural Association Ltd. |
| Number 57-003823-2 | |
| (hereinafter: “Beit Ha’Emek Agriculture”) | |
| Address, Kibbutz Beit Ha’Emek, Mobile Post Oshrat ___ | |
| Kibbutz Beit Ha’Emek Cooperative Agricultural Association Ltd. | |
| Number 570007609 | |
| (hereinafter: “the Kibbutz”) |
Of the Second Part
| A new Association which shall be established by the Beit Ha’Emek corporations | |
| (hereinafter: “the Association”) |
Whereas the Kibbutz is the holder of the lease rights in agricultural land designated for agricultural cultivation in an area of 5 Dunam located in plot 18480, parcel 17, and whose details and full description, including its boundaries, appear in the Diagram attached hereto as Appendix A (“Diagram”), and which are marked in a red line in the Diagram (hereinafter: “the Property”).
And whereas, the Kibbutz has granted a right of use in the Property to Beit Ha’Emek Agriculture, which is wholly controlled by the Kibbutz.
And whereas, the Kibbutz is a party to this agreement due to its being the holder of the rights in the Property and being the owner of the water rights and since for purposes of approval and granting of validity to this agreement, the approval of the competent institutions is required for the engagement in this agreement.
And whereas, the Kibbutz has founded a new association (“the Association”) for purposes of its engagement in this contract and in unregistered partnership with Canndoc.
And whereas, the Kibbutz and Beit Ha’Emek Agriculture issue their agreement for the Association and Canndoc to make use of the Property in accordance with and subject to the provisions of this agreement.
And whereas, Canndoc hereby declares that it has all of the approvals, permits and consent required by any relevant authority, including the Ministry of Health and the Ministry of Internal Defense, including the Israel Police.
And whereas, the Association and Canndoc wish to operate in an unregistered partnership in the framework of a joint venture which shall operate in the property, a farm for both cultivation of cannabis plants for medical use and extraction of medical cannabis oil (hereinafter: “the Farm” and “the Partnership”) for marketing by the company Canndoc Ltd., at its exclusive discretion (hereinafter: “Canndoc”) and in accordance with the terms of the growers license which Canndoc holds, in accordance with and subject to the provisions of this agreement below. A copy of the growers license of Canndoc is attached hereto as Appendix A-1.
And whereas, the Partnership is for cultivation purposes only (as defined in this agreement), and the Association and/or the Kibbutz shall not have any right in any venture and/or collaboration and/or other activity with Canndoc unless agreed otherwise in advance and in writing. However, on the other hand, it is clarified and declared hereby that the Association and/or the Kibbutz and/or any party on their behalf does not have and shall not have any liability towards the final product and/or in respect of the use thereof and/or in respect of the results of the use thereof, and all as specified below in this agreement.
And whereas the Partnership will operate in the framework of an unregistered partnership.
Accordingly it is agreed between the parties as follows:
Preamble
| 1. | The preamble and the appendices to this agreement constitute an inseparable part thereof. |
| 2. | The headings of the clauses in this agreement were intended for convenience of reference only, and may not be accorded any interpretive significance. |
| In this agreement the following terms shall have the meaning appearing adjacent thereto: | |
| The Areas of the Property - an area of approximately 5 Dunam (with agricultural greenhouses) and which is marked in the Diagram attached as Appendix A. | |
| (The Kibbutz will maintain a reserve of agricultural land available, adjacent to the Property, for purposes of future expansion of the activity of the Partnership in an area of 3 Dunam). | |
| 3. | This agreement exhausts all of the agreements of the parties related to the Property, the Partnership and its activity. Upon the signature of this agreement, all of the declarations of the parties and/or their undertakings and/or any representation and/or agreement, whether orally or in writing, made by them prior to the signature upon this agreement, concerning the Property and/or the Partnership and/or its activity, are null and void. |
| 4. | Every party to this agreement undertakes to bring this agreement for approval of its competent institutions within 40 days from the date on which the last of the parties has signed upon the agreement. Approval of the competent institutions is a suspending condition to the entry into force of this agreement. Approval of the competent institutions will be attached as Appendices B and C respectively, to such extent as they are issued and after they are issued. |
The Cultivation
| 5. | The joint activity of the partners will involve cultivation of medical cannabis plants and/or extraction of oil from medical cannabis (hereinafter: “the Cultivation”) in the Property. |
| 6. | For purposes of this agreement, “Cultivation” means, inter alia: treatment of the ground, irrigation, growing, handling of the Cultivation, harvesting and every agronomic activity required for the Cultivation in the area of the Cultivation - as shall be agreed between the parties, preparation of seedlings, and extraction of oils from the medical cannabis. Save for improvement and/or cultivation of strains, research and so forth. |
| It is emphasized that the Partnership will engage solely and exclusively in Cultivation as defined in this agreement. All of the operation and all of the responsibility for the actions carried out prior to Cultivation and/or thereafter, such as: development of strains and activities which shall be carried out at the end of the Cultivation, conversion of the oil and/or medical cannabis into other products, marketing to patients, product liability from the moment of delivery to Canndoc and so forth, shall not apply to the Partnership and/or the Association and/or the Kibbutz and/or any party on their behalf. The Partnership between the parties is for purposes of Cultivation only. | |
| It is clarified that to such extent as the product which shall be received shall be of an inferior quality, as defined below, Canndoc shall not be obligated to purchase the product of the Partnership. “Inferior quality” in this matter - in accordance with the definitions of the Ministry of Health, defined below. The Partnership shall have a right to produce an alternative product in these circumstances and Canndoc shall acquire it in accordance with its needs. |
The Partnership and its purpose
| 7. | The partners - the Association and Canndoc will operate in the framework of an unregistered partnership. |
| 8. | The principal purpose of the Partnership shall be a joint venture for Cultivation of medical cannabis plants in Beit Ha’Emek . |
| 9. | The rights of the parties in the Partnership shall be: 70% Canndoc and 30% the Association. |
| 10. | The Partnership will engage in everything required and shall be responsible for Cultivation of cannabis plants and production of oils and their sale to Canndoc Ltd., maintenance and current and proper operation of the Farm in accordance with the requirements of the regulator. |
| 11. | The parties undertake to act jointly for the approval of this agreement and of the Partnership by the competent Authority pursuant to the Agricultural Settlement Law and to sign upon any document and to carry out any action which shall be required for the approval and operation of the Partnership. Such approval constitutes a suspending condition to the validity of this agreement as specified below. |
| 12. | The Partnership will operate, to such extent as possible, in accordance with the Cultivation plan which was prepared by the parties for the joint operation, which is attached as Appendix D of this agreement. |
| 13. | It is clarified that the Partnership shall not bear any direct or indirect liability for the products of Canndoc which are marketed to the patients and/or any other entity, or any other liability for matters which are not related to the process of Cultivation. The exclusive liability for this matter shall be of Canndoc and it shall indemnify the Association and/or Beit Ha’Emek in the event that a lawsuit and/or a demand shall be submitted against them in respect of the products of Canndoc Ltd., and a judgement shall be issued, subject to that stated in this agreement. In addition, the Partnership will finance the cost of product liability insurance with an insurer, and it undertakes to indemnify the parties to this agreement in the event that a lawsuit and/or a demand shall be submitted against them in respect of the product. The Kibbutz may insure itself in additional insurance as against any damage which shall be caused to patients in respect of the product in a separate insurance policy, and in such instance the Kibbutz will bear the costs of the additional insurance itself. For the sake of removal of doubt it is clarified that this agreement does not grant Canndoc and/or the Partnership, in any manner or form, rights in the land of Kibbutz Beit Ha’Emek and/or the water rights of Kibbutz Beit Ha’Emek and/or in any other of the assets of Kibbutz Beit Ha’Emek , other than the rights of use in the Property specified in this agreement which shall be accorded to the Partnership, and for the period of this agreement alone. It is further clarified that this agreement does not grant the Kibbutz and/or the Association any right whatsoever in the strains, the Cultivation protocols, the growers license, the know-how, the list of patients and the business connections belonging to Canndoc Ltd. |
Management of the Partnership
| 14. | The accounting of the Partnership will be carried out on the books of Canndoc with a pricing separation. The accounting of Canndoc (including the payroll accounting) will be managed in entirety at the accounting department of Beit Ha’Emek at Beit Ha’Emek in accordance with the prices and conditions concluded in accordance with the market prices. Beit Ha’Emek will be responsible for placing a workstation at the offices of the company which is connected to an ERP (One) program, and will enable control and supervision at all times. |
| 15. | The management of the Partnership will be composed of three representatives of Canndoc and two representatives of the Association. Each party will appoint the representatives by notice in writing to the counterparty and shall be entitled to replace the representatives from time to time, by notice of writing. This clause will not change without the agreement of the parties in writing. |
| 16. | The management of the Partnership will approve the annual Cultivation plan and any deviation therefrom, and shall be authorized to pass any resolution in the framework of the purposes of the Partnership. |
| 17. | Resolutions in the management of the Partnership will be passed by a majority, save for the matters specified below, with respect to which a unanimous decision is required: |
| 17.1. | Sale of the rights in the holding in the Partnership or part thereof. | |
| 17.2. | The entry of additional partners into the Partnership. | |
| 17.3. | The opening of accounts at financial institutions. | |
| 17.4. | Approval of the annual business plan and the investment plan. | |
| 17.5. | Approval of distribution or non-distribution of dividend. | |
| 17.6. | Approval of any transaction between parties at interest, including amendments to transactions between parties at interest. | |
| 17.7. | The granting of guarantees to third parties. | |
| 17.8. | The obtaining of loans and/or investment capital. | |
| 17.9. | Entry into new fields of activity. | |
| 17.10. | Activity with a material impact on the lifestyle at Beit Ha’Emek . | |
| 17.11. | Signatory rights. | |
| 17.12. | Appointment of CEO and chairman. |
| 18. | The Partnership will appoint a manager for the Farm as shall be needed, who shall be responsible for the employees of the Farm and the routine operations of the Farm and everything related to the Cultivation at the Farm. The parties agree that Canndoc has a first right to propose a candidate on its behalf for this position, in light of its expertise and multi-year experience in the field. |
Accounting
| 19. | It is agreed between the parties that the accounting services of Canndoc will be conducted at the accounting department at Beit Ha’Emek in accordance with customary and agreed market prices. The accounting of the Partnership will be conducted in the books of Canndoc, separately from the remainder of its financial activity which is not related to the Partnership, as activity-based-costing activity (hereinafter: “the Ledger of the Partnership”). All of the data in the Ledger of the Partnership will be available for review of any party at any time. It is clarified that this service includes payroll accounting services and costing services for analysis of the operations. All of this, at competitive prices which shall be approved by the management of Canndoc. |
| Accounting services include: preparation of monthly/quarterly/annual reports, payroll accounting, costing services for detailed analysis of the products or sub-activities, preparation of a balance sheet. |
| 20. | The management of the Partnership will receive a report every quarter concerning the income and expenses of the Partnership, and any other information required in connection with the Partnership and its business affairs. |
| 21. | The books of account of the Partnership shall be open at all times to the parties to this agreement. Canndoc shall be exclusively liable shall have discretion for performance of current payments on behalf of the Partnership. |
Financing, investments and expenses
| 22. | The income of the Partnership will serve for payment of its current expenses. |
| 23. | To such extent as the Partnership shall require financing for its activity, including its current activity and/or its expenses and/or compliance with its undertakings pursuant to this agreement and/or for its debt upon liquidation, such financing will be provided by each party, in accordance with its proportional share in the holding of the Partnership. |
| 24. | In the event that the Association shall be unable to provide the funds required for purposes of the Investment in the Partnership and/or financing of its current and/or other activity and/or bearing of its expenses and/or compliance with its undertakings and/or any other monetary undertaking pursuant to this agreement (hereinafter: “the Investment”), the Association shall find a party to provide a loan to the Association at the rate of the Investment required at such time in the stead of the Association, on behalf of the share of the Association, alongside the share of Canndoc as stated. In the event that Canndoc shall be the party to provide the loan to the Association, then the loan shall be returned to Canndoc from the share of the Association in the profit of the Partnership. The loan shall be provided under terms of a commercial market loan at such time, which shall be concluded between the parties in advance and in writing. Every Investment invested by any of the parties in the Partnership in accordance with the business plan and in accordance with the investment plan, and subject to that stated in this agreement and in accordance with applicable law, and to such extent as the resolution for investment has been passed lawfully by the competent organs of the Partnership, including financing of the current activity and/or bearing of expenses in which the Partnership must bear, shall be deemed as a shareholder’s loan which shall be returned to the parties prior to distribution of profit to the parties to such extent as there shall be any. |
| 25. | Shareholder’s loans shall bear annual interest at a rate which shall be determined on the date of provision of each and every loan. |
Payments and expenses
| 26. | The parties in the Partnership will bear the current expenses arising from the operation of the Farm and the Cultivation in accordance with the rate of their holding in the Partnership and in accordance with the requirements of the regulator and/or any other necessary institution. To such extent as yields shall be made in the Property for activity of Canndoc which is not in the framework of the Cultivation, the expenses of this activity shall not apply to the Partnership. |
| 27. | Use of water by the Partnership shall be made in accordance with applicable law. |
| 28. | Payment on behalf of water consumption shall be paid on a current basis by the Partnership to the water provider in accordance with the water tariffs determined in the Potable Water for Agriculture Law, and which are published by the Water Authority. |
| 29. | The Partnership shall endeavor, immediately after the signature upon this agreement, to obtain an agricultural water quota from the Water Authority in accordance with the anticipated consumption for the venture. The Kibbutz undertakes to reasonably endeavor that the Partnership shall be entitled to the water quota and that the provision of water to the Partnership shall be regular and uninterrupted. |
| 30. | Employees of Canndoc will provide work services to the Partnership. The aforementioned employees shall be employed by Canndoc. The Kibbutz shall have a first right to propose employees to Canndoc for work in the Partnership under salary terms which are customary at Canndoc and at law, and who shall be qualified to carry out the work which is required. Acceptance of Employees is contingent upon the approval of the management of the Partnership and all of the required institutions (the Police, the Ministry of Health, and so forth). The Partnership of the management has full liberty to employ and/or dismiss employees as it deems fit, from the Kibbutz and/or from any other source. |
| 31. | For the sake of removal of doubt, the Partnership is not responsible for the rights of employees in the period preceding the establishment of the Partnership. Each party undertakes to indemnify the Partnership and/or the counterparty in respect of lawsuits of members and salaried employees who worked at such party, and were transferred to work in the Partnership, if these shall sue the Partnership in respect of the period preceding its establishment, or in respect of their work other than in the framework thereof. Attached hereto as Appendix E concerning employees who we employed by the parties prior to establishment of the Partnership. |
| 32. | The Partnership will pay the electrical and gas and/or any other expense required for purposes of the use and the Cultivation. |
Profit and loss
| 33. | Profit will be distributed solely and exclusively after performance of all the payments in respect of the current expenses required for management of the business affairs of the Partnership, the Investments, payment of all of the financing expenses (in accordance with this order). |
| 34. | All of the expenses and taxes will be paid in practice by Canndoc since the Partnership will be activity-based-costed at Canndoc and Canndoc will obligate the Partnership. From the profit available for distribution, the amounts for return of Investment shall initially be deducted. Investments, to such extent as shall be required, shall be approved in advance and in writing by both parties. If an agreed Investment shall take place, where Canndoc will provide the financing thereof with the approval of the Association, the financing and the principal shall be set off in the pricing, prior to calculation of the profit for distribution. |
| When profits shall be distributed in the activity-based-costing partnership, it shall be distributed in accordance with the ownership 70% - 30%. In any event, the Association shall be entitled to 30% of the pricing profits. |
The Property
| 35. | The Kibbutz declares and undertakes hereby as follows: |
| 35.1. | It is the holder of a lease-right in the Property pursuant to a lease contract signed with the Israel Lands Administration on 26.4.1990, for a period commencing on 1.10.1989 and ending on 30.9.2038, save for a change, if and to such extent as shall apply, in light of the change in the classification of Beit Ha’Emek to a town. To such extent as the Kibbutz is aware, this change is not anticipated to impact that stated in the agreement. If it shall have a detrimental effect - the right to exit the agreement shall be in accordance with the provisions set forth in clause 50. | |
| The lease agreement with Israel Lands Administration is attached as Appendix F of this agreement. | ||
| 35.2. | That on the date of the signature upon this agreement, it is not aware of any bar to renewal of the lease agreement with the Israel Lands Administration, for any period. | |
| 35.3. | That to such extent as is contingent upon it, it shall continue to remain the lessee and the holder of the Property throughout the entire period of this agreement, and shall not grant or assign or transfer or pledge its rights in the Property to any third-party (save for the Association) and shall not carry out any action which may prevent renewal of the lease agreement with the Israel Lands Administration at the end of any lease period. The Kibbutz undertakes to endeavor with the Israel Lands Administration to extend/renew the lease agreement including the Property, which shall ensure its rights in the Property for the entirety of the duration of this agreement. For the sake of removal of doubt, it is clarified hereby that to such extent as an agreement shall not be signed with the Authority for reasons not contingent upon the Kibbutz, this shall not be deemed breach of the agreement, and Canndoc and/or the Partnership shall not be entitled to any additional compensation in respect thereof. In such instance, Canndoc shall be entitled to notify upon cessation of the engagement immediately, and the Association and the Kibbutz shall not be entitled to any compensation in connection therewith. |
| 35.4. | All of its rights in the Property are free of any pledge or any other third-party right. | |
| 35.5. | That subject to receipt of the approvals required from the competent Authority, pursuant to the Agricultural Settlement Law and/or pursuant to the lease contract with the Israel Lands Administration, there is no statutory, legal, contractual, or other bar to its engagement in this agreement and fulfillment of its undertakings hereunder. | |
| 35.6. | The Kibbutz and/or the Association will grant the Partnership authorization to use the Property subject to the approval of the Ministry of Agriculture and/or a party on its behalf. | |
| 35.7. | The declarations of the Association above, and their accuracy, are a fundamental condition to the signature upon this agreement. |
| 36. | The Kibbutz and Beit Ha’Emek Agriculture undertake hereby as follows: |
| 36.1. | Subject to that stated above, to provide the Property as defined in the preamble to this agreement for the use of the Partnership throughout the entire period of this agreement, without consideration, for every purpose related to the Cultivation of medical cannabis as defined in this agreement, and for such purpose alone and subject to that stated in this agreement. | |
| 36.2. | To pay in respect of the Property, throughout the entire period of the agreement, lease/rental fees to the Israel Lands Administration, in the framework of the annual payments to the Authority carried out by the Kibbutz in respect of the Kibbutz square, and to make available the Property when it is clear of any person and waste. | |
| 36.3. | To bear any payment which shall be imposed upon the Property and which is imposed upon the owner and/or the lessee of the Property. |
| 36.4. | Not to endeavor and/or to initiate a change in the zoning of the Property to any other zoning (including residential and/or industrial) in such manner as shall harm the use of the Property in accordance with this agreement, and save for existing plans. |
| 37. | The Partnership shall bear any payment imposed upon the Association/Kibbutz in respect of the activity of the Partnership in the Property and which is imposed upon the holder (as distinct from the lessee/owner) of the Property, including payment of municipal taxes to the Mateh Asher Regional Authority, and other taxes as shall be required, and provided that they apply by their nature to the holder and user of the Property and not to the owner thereof or the lessee in the Property. |
| 38. | It is clarified and agreed that other than the right of use granted to the Partnership pursuant to this agreement, there is not and shall not be any right in the Property for the Partnership. |
| 39. | The Partnership will not carry out any planning changes and/or changes in zoning, unless agreed otherwise in writing, and after the rules related to the financial investments and the rights of the parties shall have been determined. |
| 40. | The Partnership shall not carry out any structural changes to the contour, improvement in the Property, drainage, and changes in the outline of the Property other than changes required for the current Cultivation, beyond the Areas of the Property, unless this was agreed in advance and in writing, and after the rules related to the monetary investments and the rights of the parties shall have been determined. That stated shall not apply to any changes in the existing structures today. |
| 41. | It is agreed hereby that at the end of the period of the right of use as stated in this clause, the Kibbutz/Beit Ha’Emek Agriculture, have the right to demand of the Partnership to remove all of the construction and the infrastructure installed which may not be separated or dismantled by the Partnership, or to leave them in the land, all at its discretion and without being required to pay any compensation in respect of the infrastructure. The Kibbutz/Beit Ha’Emek Agriculture will participate in the costs of the removal in accordance with the rate of its holdings in the Partnership. |
Provision of the Property to the Partnership
| 42. | Beit Ha’Emek Agriculture/the Kibbutz undertake to provide the Property for the use of the Partnership from the date of the provision of the approval of the competent Authority pursuant to the Settlement Law. |
| 43. | If 60 days have passed from the signature upon this agreement and the approval of the Supervisor pursuant to the Agricultural Settlement Law has not been issued for the activity of the Partnership in the Property, each party shall be entitled to cancel this agreement without this being deemed breach and without any of the parties being obligated in compensation to its counterpart. |
| 44. | Nothing in that stated above shall detract from the obligation of all of the parties to diligently and in good faith endeavor to obtain the approval. |
| 45. | The Property will be delivered to the Partnership in its condition at the time of its delivery (As Is), and the Partnership shall have no contention with respect to the type, nature and/or condition of the Property, upon all of the connections thereto, and included with respect to electricity, water, and sewage infrastructure, save for a hidden fault and/or defect. |
| 46. | The Partnership will use the Property for every purpose in the field of Cultivation of medical cannabis and extraction of medical cannabis into oil (hereinafter: “the Product”), pursuant and subject to all of the relevant licenses and/or permits in accordance with applicable law and/or directive of any competent Authority throughout the entire period of the authorization, and which are valid, and the sale of the Products to Canndoc, which is responsible for the transportation and distribution of the Product to its patients. |
The period of the agreement for the authorization for use of the Property
| 47. | The period of authorization of use of the Partnership in the Property shall be 5 years + 3 options of 5 years each which shall be renewed automatically subject to fulfillment of all of that stated in this agreement. |
| 48. | Upon liquidation of the Partnership, the following shall apply: |
| 48.1. | The Partnership shall vacate the agricultural lands and return them to the Kibbutz. | |
| 48.2. | The Partnership will cover all of its expenses and liabilities as of the date of the liquidation. | |
| 48.3. | To such extent as a profit balance shall remain for the Partnership (which was collected in practice), and after coverage of all of the debts and liabilities, then the profit balance shall be divided between the partners in accordance with their share in the division of profit. |
Cancellation of the agreement
Cancellation of the agreement by Canndoc
| 49. | In any instance where the grower’s license of Canndoc will be suspended or frozen and/or any decision of the government and/or any other body shall be passed whereby the Cultivation of medical cannabis in Israel shall be prohibited or new regulations or regulatory requirements shall enter into force and/or the grower’s license of Canndoc shall not be renewed, Canndoc shall be entitled to notify the Association of termination of the Partnership and the expiry of this agreement immediately, and without any of the parties having any contention and/or demand and/or claim in respect thereof. |
| 50. | It is clarified that in the event of a detrimental material change (exceeding 10%) in the price paid by a patient for a gram of medical cannabis and/or cannabis oil, Canndoc shall be entitled to notify the Association of cessation of the activity of the Partnership and expiry of this agreement immediately, and without any of the parties having any contention and/or demand and/or claim in respect thereof. |
| 51. | Canndoc shall be entitled to notify the Association at any time upon liquidation of the Partnership and termination of this agreement, by advance notice 3 (three) months in advance. If Canndoc shall have cancelled the agreement as stated in this clause, other than due to its breach by the Association, the following provisions shall apply: |
| 51.1. | The Partnership will vacate the property within two months from the date of the notice of termination of this agreement. | |
| 51.2. | Upon vacating the Property, the Association and/or the Kibbutz and/or Canndoc shall have no contention and/or demand and/or claim toward the other parties and/or the Partnership concerning cancellation of the agreement subject to that stated above. |
| 52. | In the instances stated above in clauses 49-50, everything existing in the Property and connected thereto permanently, including the infrastructure and the structures, shall remain in the Kibbutz and shall belong to the Kibbutz, without any payment on behalf of the Kibbutz. |
| The Kibbutz will be entitled to receive from the partners its proportional share in the equipment and the investments acquired after foundation of the Partnership, after deduction of any investment made by Canndoc in the Partnership in respect of the share of the Association or the Kibbutz as stated in clause 24 of the agreement and after depreciation. | |
| In the event where the agreement was cancelled pursuant to the provisions of clause 51 only, the Association will be entitled also to liquidated damages in an amount of NIS 200,000. With respect to other equipment in the property, to such extent that the Kibbutz shall deem it relevant for its uses, it shall be delivered for the use of the Kibbutz on account of such compensation, in accordance with its book value. The remainder of the compensation will be paid by Canndoc in cash within a period of 90 days from the date of the notice of the cancellation, with deduction of any income invested by Canndoc in the Partnership in respect of the share of the Association or the Kibbutz as specified in clause 24 of the agreement. The Kibbutz may withhold the equipment only as collateral for the performance of the payment by Canndoc. The Kibbutz and/or the Association shall not be entitled to maintain possession of an inventory of medical cannabis and/or its products, documents, funds, and so forth. |
Cancellation of the agreement by the Association and by the Kibbutz
| 53. | The Association shall be entitled to cancel this agreement by notice of 18 months in advance or until Canndoc shall locate an alternative Cultivation area approved by the required Authority, the earlier of these, as well as in any instance where continued performance of this agreement is not possible subsequent to a demand of any Authority to terminate it, and provided that the Association did not initiate, in any manner, whether directly or indirectly, the approach to the Authority, and it carried out every action required and operated diligently in order to remove the aforementioned demand. Notwithstanding that stated, a demand of any Authority which cannot be fulfilled without any expenditure by the parties (save for payment, as shall be required for renewal of the square contract (the lease contract of the Kibbutz) with the Israel Land Authority) shall not constitute a demand which brings about the end of the agreement as stated above, and the parties will collaborate, to such extent as possible, in fulfillment of the demand, and all in accordance with the circumstances of the matter. “Any authority” - for purposes of this clause - including the Israel Land Authority, Ministry of Agriculture, Supervisor of exercise of the Agricultural Settlement Law, the relevant planning and building committees, the regional council and so forth. |
| 54. | If the Association has cancelled the agreement due to a demand of such Authority above, Canndoc shall be entitled to take possession of any equipment and/or installation and/or attachments acquired as part of the joint activity, at its discretion, and provided that it shall return the area of the Farm in a clean and orderly manner to the Association/Kibbutz, and this is against a refund of payments to the Association in respect of the proportional share of the Association in the equipment, to such extent as it has invested funds in the equipment and with deduction of any investment by Canndoc in the Partnership in respect of the share of the Association or the Kibbutz as stated in clause 24 of the agreement. |
Prohibition on competition
| 55. | The Association and/or the Kibbutz, their managers and shareholders therein, undertake not to compete with the business of Canndoc Ltd. and/or the business of the Partnership, directly or indirectly, themselves and/or by means of others, whether independently or as salaried employees, including by way of partnership or of holding, themselves or through others, in shares or in management rights in any corporations, in Israel and/or overseas, for five years from the expiry of this agreement for any purpose whatsoever. |
Preservation of confidentiality
| 56. | Throughout the period of this agreement, and thereafter, the Association and/or the Kibbutz and their managers, undertake not to disclose and/or transfer to any person and/or entity, information upon Canndoc and/or Canndoc Ltd. and/or the business and activity of the Partnership or information and/or a list of customers and/or suppliers and/or Cultivation protocols, irrigation regimes, fertilizer and aeration and/or any other information related to the intellectual property (hereinafter: “the Information”) which has reached it in the framework of the period of the Partnership and/or in connection with Canndoc and/or Canndoc Ltd. and/or the Partnership. The Association and/or the Kibbutz and their managers undertake to preserve in confidence everything related to the business affairs of Canndoc and/or Canndoc Ltd. and/or the Partnership, and not to harm in any manner the goodwill of Canndoc and/or Canndoc Ltd. and/or the Partnership and/or their customer database. |
| 57. | The Association and/or the Kibbutz and their managers undertake to maintain absolute confidentiality in connection with all of the Information as defined above and/or know-how and/or confidential information and/or any other information of value and/or of any third-party maintaining connections with Canndoc, Canndoc Ltd. and the Partnership, and which reached them subsequent to their connection with Canndoc and/or Canndoc Ltd. and/or the Partnership (hereinafter: “the Additional Information”). |
| 58. | The Association and/or the Kibbutz and their managers undertake not to make any use of the Information and/or the confidential information and/or the Additional Information without express consent in writing from Canndoc Ltd., whether themselves, or by means of others, whether directly or indirectly, and not to transfer same to any person and/or corporation for any purpose whatsoever, whether for consideration or without consideration. |
| 59. | The provisions of this clause shall apply indefinitely, even this agreement shall be cancelled for any reason whatsoever. |
Intellectual property
| 60. | It is clarified and agreed between the parties expressly that all of the current and future intellectual property rights in the intellectual property upon all of its components, including, but not only, types of strains, methods for extraction of oil, types of oils, Cultivation protocols, patient lists, contact persons at various Authorities, and commercial secrets (hereinafter: “the Intellectual Property”) are the exclusive property of Canndoc. Furthermore, the Association and/or the Kibbutz and their managers and/or any party on their behalf are prohibited from using the Intellectual Property for any purpose other than in accordance with the provisions of this agreement and/or after the conclusion of this agreement for any reason whatsoever. |
| 61. | The Intellectual Property is a commercial secret owned exclusively by Canndoc, which was obtained by great investment and extensive efforts, and the Association and/or the Kibbutz and/or their managers and/or a party on their behalf shall have no contention in connection with the eligibility of the Intellectual Property to constitute a commercial secret, and that the use thereof shall be made pursuant to this agreement, and that they shall not contend ownership or a right in connection with the Intellectual Property. |
Compensation and grants
| 62. | To such extent as during the period of disagreement, an insurance and/or security and/or war and/or natural disaster event shall take place, as a result of which the cannabis plants and/or the Products derived from them and/or the equipment and/or the inventory of the Partnership shall be occasioned damage which entitles and/or may entitle any of the parties in this agreement to compensation and/or proceeds whatsoever from an insurance company and/or the fund for natural damage or any other entity, the compensation and/or the proceeds to the Partnership shall belong to the Partnership and the party who has received them undertakes to transfer them to the Partnership, and this in connection with the crops and/or the Product which had begun and/or been created after the signature upon this agreement. |
| 63. | To such extent as the Association shall be able to receive grants in respect of investments in Cultivation and/or processing, irrigation systems and/or drainage and ground preservation works, from the Ministry of Agriculture or from any other entity, the Association shall endeavor to submit applications and to receive the grants, and the grant will be transferred to the Partnership. For the sake of removal of doubt it is clarified that the transfer of such grants to the Partnership shall not be deemed a loan and/or investment of the Association in the Partnership. |
Liability and insurance
| 64. | It is emphasized that the Partnership will engage solely and exclusively in Cultivation as defined in this agreement. All of the activity and all of the liability for the activity carried out prior to the Cultivation and/or thereafter, such as: development of strains, and activity which shall be carried out at the end of the Cultivation such as: marketing to patients, liability for products from the moment they were delivered to Canndoc and so forth, shall not apply to the Partnership and/or the Association and/or the Kibbutz and/or any party on their behalf. The Partnership between the parties is for purposes of Cultivation alone. |
| 65. | It is clarified that the Partnership will not bear any direct or indirect liability for the products of Canndoc which are marketed to the patients and/or to any other party and any other liability for matters which are not related to the process of Cultivation. The exclusive liability for this matter shall be that of Canndoc and it shall indemnify the Association and/or Beit Ha’Emek in the event where a lawsuit and/or a demand shall be submitted against them in respect of the Product of Canndoc Ltd., and a judgement shall be issued, subject to that stated in this agreement. |
| 66. | The Partnership will finance the cost of product liability insurance with an insurer, and it undertakes to indemnify the parties to this agreement in the event that a lawsuit and/or demand shall be submitted against them in respect of the Product. |
| 67. | The Partnership/Canndoc will insure its activity in accordance with and subject to the provisions of this agreement with the following insurance policies: product liability insurance, third-party liability insurance, employers liability insurance, these insurances will include the parties to this agreement and the Kibbutz as insured parties. |
| 68. | The Partnership will act to insure its operations in product liability insurance as stated in this agreement. In any event, all of the liability for the Product and its marketing, from the moment of its delivery to it, shall apply to Canndoc Ltd. alone, subject to the remainder of the provisions of this agreement. |
| Attached hereto is an insurance appendix describing the insurance policies to apply to the Partnership and the insurance policies to be affected by Canndoc. |
Suspending condition
| 69. | The validity of this agreement is contingent upon receipt of the consent of the competent Authority pursuant to the Agricultural Settlement Law (exceptions to use in land and water) - 1967 and the routine operations pursuant to this agreement. The Association and Canndoc undertake, immediately after the signature upon this agreement, to seek the consent of the competent Authority pursuant to the Agricultural Settlement Law and to endeavor diligently and in good faith to obtain such approval. |
| 70. | The Association and Canndoc undertake to act in every possible manner for approval of this agreement, including submission of legal actions and appeals and/or reservations to every necessary legal forum. |
| 71. | The Kibbutz undertakes to endeavor to assist in any possible manner for obtaining of such approval. |
| 72. | The validity of this agreement is contingent upon the approval of the competent Authority in the Kibbutz for the engagement. |
The Relations of the parties
| 73. | For the sake of removal of doubt, the existence of the Partnership shall not limit the parties in any manner or form in the conduct of their business or their assets during the period of the agreement, save as determined expressly in this agreement, and it does not have the effect of restricting the parties in any manner whatsoever after the period of the agreement, subject to the provisions of this agreement. |
| 74. | Subject to the advance approval of the head of the medical cannabis unit in the Ministry of Health, Canndoc shall be entitled to bring into the Farm for purposes of a visit and a review, any relevant entity, including research and development parties, investors, performing contractors for infrastructure work, maintenance and their employees. |
| 75. | It is clarified that the Association and/or the Kibbutz shall not be entitled to bring any party on their behalf into the bounds of the Farm without the approval of Canndoc and the approvals required from the medical cannabis unit at the Ministry of Heath and the Israel Police. |
Transfer of duties and rights
| 76. | The parties shall not be entitled to assign the rights and obligations under this agreement in any manner whatsoever, including by way of sale and/or release and/or pledge, save for assignment to a corporation which is exclusively controlled by the assigning party or of Kibbutz Beit Ha’Emek. However, the parties shall be entitled to carry out a change in the holdings therein per their desire and freely, and provided that this shall not prejudice any provision and/or directive in this agreement. |
Miscellaneous
| 77. | Any change and/or amendment and/or reduction and/or appendix and/or additional agreement related to this agreement shall be made in writing only and signed by the parties. |
| 78. | The addresses of the parties shall be as indicated in the headings of this agreement and any postal items sent by registered post to the aforementioned address shall be deemed to have arrived to its destination within three business days from the date of the dispatch. |
| In witness whereof the parties have signed | ||
| Canndoc Ltd. | the Association (new association) | |
| Beit Ha’Emek Agriculture - Cooperative Agricultural Association Ltd. | ||
| Kibbutz Beit Ha’Emek Agriculture - Cooperative Agricultural Association Ltd. | ||
Exhibit 4.3
Agreement
Made and signed in Tel Aviv on April 11, 2019
Between
Kibbutz Nir Oz Agricultural Cooperative Association Ltd.
Number - 57-001371-4
Mobile Post Hanegev Nir Oz 85122
(hereinafter - “the Kibbutz”)
Of the one part
And Between
Canndoc Ltd. pcn 514418581
Of 15 Bialik Street, Tel Aviv
(hereinafter - “Canndoc”)
Of the second part
And Between
Canndoc Nir Oz Agricultural Cooperative Association Ltd. (under establishment)
Mobile Post Hanegev Nir Oz 85122
(hereinafter - “the Corporation”)
Of the third part
Whereas:
| (a) | The Kibbutz is the holder of the lease rights in the Property (as defined below, by virtue of a square lease agreement with the Israel Land Authority (“ILA”) of 22.6.2016. |
| (b) | And a joint agricultural venture is carried out on the property, by the Kibbutz and the Adler family in the framework of the Nirad - Agricultural Cooperative Association Ltd. which was approved under the Settlement Law (as defined below). |
| (c) | And Canndoc engages in breeding and cultivation of medical cannabis, it has the information, unique know-how, and extensive experience in everything related to cultivation, breeding, and marketing of cannabis, and it holds a suitable license for such activity which it received from the Ministry of Health. |
| (d) | And the parties have agreed to the establishment, operation, and management of a joint venture in the field of cultivation and breeding of medical cannabis to be carried out in the Property in the framework of the Corporation, where the rate of holdings of the Kibbutz shall be 26% and the rate of holdings of Canndoc shall be 74%. |
Accordingly it was agreed between the parties as follows:
1. Preamble, appendices and interpretation
| 1.1. | The preamble to this agreement constitutes an inseparable part thereof. |
| 1.2. | The appendices cited in this agreement constitute an inseparable part thereof. |
| 1.3. | The headings of the clauses are for convenience only. They shall not be relied upon for interpretation of the agreement. |
| 1.4. | In this agreement, the masculine shall include the feminine and vice versa. The singular shall include the plural and vice versa. Terms such as “including” shall be interpreted broadly. |
| 1.5. | This agreement was drafted by both parties. |
2. Definitions
In this agreement, the following terms shall have the meanings below unless the written content obligates otherwise:
| Legal requirements: | Requirements by virtue of the law, regulations, and orders as revised from time to time. | |
| Regulatory Requirements: | Requirements, directives, opinions, and dictation of methods for conduct or action as issued or shall be issued from time to time by regulatory bodies, including but without minimizing, the Ministry of Health and the Israel Police. That stated also includes the terms of any license and/or permit related to and/or which shall be related to the use of the Property in general and the Project in particular. |
| The Option: | The Option issued to the Corporation under this Agreement to receive the right of use in the Additional Property (as defined below) for purposes of the Project (as defined below). | |
| Exercise Notice: | A written notice which shall be delivered - if delivered - by the Corporation and Canndoc to the Kibbutz, notifying of exercise of the Option in which there shall be noted, inter alia, the area to which the exercise relates. Such notice must be delivered during the Option period and at least 30 days prior to the date on which the use of the area for which the Option was exercised shall commence. | |
| The Greenhouses: | 67 Dunam of greenhouses on the Property (as defined below). | |
| The Determining Date: | The date on which the last of the suspending conditions determined in this agreement shall be fulfilled. | |
| The Property: | A piece of land in an area of 100 Dunam together with an operational area bounded in red in the diagram attached to this agreement as Appendix 2. | |
| This Agreement or the Agreement: | Including all of the appendices indicated therein. | |
| The Project: | The Project of the cultivation and breeding of medical cannabis which shall be carried out, managed, and operated within the bounds of the Property in accordance with the provisions of this Agreement. | |
| The Additional Property: | A 50 Dunam piece of land (within the bounds of the Property) which includes 70 Dunam of greenhouses, composed of Area A and Area B (as defined below). | |
| The Initial Area: | An area of 50 Dunam of greenhouses (within the bounds of the Property) including an operational area, bound in entirety in the color brown in Appendix 2. |
| The Corporation: | The Corporation (as defined in the preamble) established by the parties for the execution of the agricultural venture of cultivation and breeding of medical cannabis on the property in accordance with this Agreement. | |
| The Settlement Law: | The Agricultural Settlement Law (exceptions to use of agricultural land and water) - 1967. | |
| Business Day: | The days of the week, Sunday through Thursday, not including holidays, holiday eves and declared sabbatical days (such as election days for instance). | |
| The Date of the Signature: | The Date of the Signature upon this Agreement as appearing at the head of the Agreement. | |
| ILA: | Israel Land Authority. | |
| Area A: | An area of 17 Dunam of greenhouses (within the bounds of the Additional Property) bound in blue in Appendix 2. | |
| Area B: | An area of 33 Dunam - bare - (within the bounds of the Additional Property) bound in purple in Appendix 2. | |
| The Option Period: | A period commencing on the Date of the Signature upon this Agreement and ending at the end of the fifth year from the aforementioned date or on the date in which the Option will be cancelled by the Corporation in accordance with the provisions of this Agreement, the earlier of these. | |
| The Period of the Agreement: | The first period and the additional period (if the Option in respect thereof shall be exercised), as these terms are defined in clause 9 below. | |
| Standard: | The Standard known as IMC-GAP + GSP |
3. The Corporation
| 3.1. | Immediately after the signature upon this Agreement, the parties will establish the Corporation, which shall be incorporated as an Agricultural Cooperative Association Ltd., when an application to receive the permit indicated in clause 15.1.1 below shall be filed immediately after the signature upon this Agreement |
| 3.2. | The Articles of Incorporation of the Corporation are attached as Appendix 3.2 A of this Agreement (hereinafter - “the Articles of Incorporation”). Additional provisions regulating the corporal governance of the Corporation and the agreement between the members therein are set forth in Appendix 3.2 B of this Agreement. In any event of contradiction between the clauses in this Agreement (and its appendices) and between the Articles of Incorporation, the provisions of this Agreement shall prevail and the parties undertake to vote and/or cause whomever shall act on their behalf and in their stead, to vote in the authorized organs of the Corporation, as shall be necessary in order to grant full and binding validity to the understandings set forth in this Agreement. |
| 3.3. | The rate of holdings of each of the parties in the Corporation shall be as follows: the Kibbutz: 26%, Canndoc: 74%. |
4. The Property
| 4.1. | The right of use with respect to every part of the Property which is issued and/or shall be issued to the Corporation pursuant to this Agreement shall be solely and exclusively for purposes of the Project and not for any other purpose and the Corporation shall not make any use of the Property which is not included in the Project. |
| 4.2. | The right of use issued with respect to each part of the Property shall be subject to all of the relevant provisions in this Agreement. |
| 4.3. | On the Determining Date, the right of use in the Initial Area shall be granted, in light of the undertaking to carry out maximum cultivation in all of the Initial Area. |
| 4.4. | Subject to fulfillment of all of the undertakings of the Corporation and Canndoc on the date in which the Exercise Notice shall be issued by them with respect to every part of the Additional Property, the Option shall be exercisable for all of the areas constituting the Additional Property or for any of them as specified below. The Option may be exercised, solely and exclusively by delivery of the Exercise Notice (as defined above) with respect to the entirety of the Additional Property or part thereof. However, if the exercise shall be only with respect to a part of the Additional Property, it must be carried out in the following manner and order: first, with respect to Area A. Second, with respect to Area B. For the sake of removal of doubt it is clarified that there is no obligation to exercise the Option with respect to the entire Additional Property, however and as an example, if the Option shall be exercised only once, and not with respect to all of the additional property, the right of use shall apply to the Initial Area and to Area A alone. Exercise of the Option means an unqualified undertaking of the Corporation and Canndoc to actually performs cultivation (as distinct from breeding) in all of the area which shall be exercised and accordingly, performance of all of the investment involved therein. |
| 4.5. | It is agreed that the area allotted for breeding in the entirety of the area of the Property (meaning also after exercise of the Option with respect to all of the Additional Property) shall not exceed 7 (seven) Dunam, when the remainder of the area of the Property will be used for cultivation. An increase of the breeding area beyond the 7 Dunam is subject to the consent of the Kibbutz in advance and in writing, when in any event, if the breeding area shall be larger, the Corporation will be entitled to payment from Canndoc in accordance with the formula based upon quantity of tons produced per Dunam in practice, in such year from the other blossoming areas. Notwithstanding that stated, the Corporation will in any event be entitled to payment from Canndoc in respect of the breeding based upon the formula of quantity of tons produced per Dunam in practice in such year from the other blossoming areas. |
| 4.6. | The Corporation and/or Canndoc are entitled to notify the Kibbutz in writing of cancellation of part of the unutilized Option at any point in time during the Option Period, when for removal of doubt it is clarified that they shall not be entitled at any time to refund of any payment made prior thereto. |
| 4.7. | At the end of the Option Period (whether due to expiry of the Option Period or due to its cancellation in accordance with the provisions of this Agreement), it shall automatically expire and no notice shall be required to the Corporation/Canndoc with respect to the expiry or loss of validity thereof. |
| 4.8. | If the Option was cancelled or expired, the Kibbutz shall be entitled to make use of such part or parts with respect to which the Option was not exercised prior to the cancellation. |
| 4.9. | The provisions set forth in Appendix 4.9 of the Agreement as well as the following provisions, shall apply to the use of the Corporation in the Property: |
| 4.9.1. | The use will not cause a nuisance to the individual or to the public. |
| 4.9.2. | The use will adhere to environmental quality aspects. |
| 4.9.3. | The use will conform at all times and fully to all of the Legal and Regulatory Requirements, including the terms of the licenses and permits. |
| 4.9.4. | The Corporation will not construct, not establish and not place (permanent or mobile) structures on the Property, facilities and/or additions or changes to construction of any type or kind whatsoever (other than changes which do not require a building permit at law) without receiving the consent in advance and in writing of the Kibbutz and subject to the terms accompanying such consent, if any. |
| 4.9.5. | The Kibbutz will not unreasonably refuse such construction, establishment, placement, or installation which shall be required due to Legal or Regulatory Requirements (such as, but not only, for security or guarding purposes) or for purposes of actions required of the Corporation in the framework of the Project. |
| 4.9.6. | In any instance where the Kibbutz shall grant its approval in accordance with the preceding clause, all of the investments and/or construction and/or installation and/or connections shall remain in place, without entitling the Corporation and/or Canndoc any right to payment whatsoever and/or refund of investment and/or improvement whatsoever. |
| 4.9.7. | At the end of the Agreement Period, the Property will be vacated when it is in the same condition as it was on the eve of this Agreement, save for ordinary wear and tear - to such extent as wear and tear is relevant to the object. At all times and in any event, the Corporation and/or Canndoc will not be entitled to a refund of investment and/or improvement and/or any other payment which they bore in connection with the Greenhouses and/or the Property, including new construction which shall remain as stated. For removal of doubt - nothing in that stated shall detract from the obligation of the Corporation and/or Canndoc to vacate the Property of any person and/or item including removal of all of the waste to a licensed site and leaving the Property in a clean and orderly fashion. |
| 4.10. | Operational areas - operational areas required solely and exclusively for the Project (are marked in the diagram in Appendix 2), and the Corporation will be entitled to make nonexclusive use thereof (together with the remainder of the Kibbutz and/or others on behalf of the Kibbutz). For removal of doubt it is clarified that the obligation of the Corporation to bear the maintenance and expenses and current payments in connection with the property including as specified in Appendix 4.9 shall apply to the operational areas as well (despite the nonexclusive use). |
5. Declarations of Canndoc
Canndoc declares, confirms and undertakes as follows:
| 5.1. | It has seen and examined the Property and the Greenhouses, the access routes to the Property and the environmental conditions relevant to the activity of the type of the Project, and has found that stated suitable for purposes of the Project and subject to the veracity of the declarations of the Kibbutz in this Agreement, it does not and shall not have any contentions of nonconformity whatsoever. To such extent as the Project shall require any modifications in connection with that stated above or at all, these modifications shall be at the responsibility of Canndoc. |
| 5.2. | It has up to date information, unique know-how and extensive experience in the field of breeding and cultivation of medical cannabis and in all of the activities ancillary thereto or required thereof, and it shall provide, its know-how and experience permanently, continuously and without consideration, for the performance of the Project, and shall be responsible for everything related to the use of the information and utilization of the know-how and experience in the optimum manner for the benefit of the Project. |
| 5.3. | Canndoc has issue notice that the intellectual property rights related to the unique know-how of Canndoc and the protocols prepared by it related to cultivation and breeding of medical cannabis, belong to Canndoc, and the Kibbutz and the Corporation confirm receipt of such notice. In light of that stated above, it is agreed that the right of the Kibbutz and the Corporation in connection with the know-how and the protocols as stated, is the right provided by Canndoc to make use of the know-how and the protocols for purposes of the Project alone. |
| 5.4. | Use of the know-how and the protocols of Canndoc in the framework of the Project as stated shall not breach intellectual property rights or other rights of third parties, and as of the Date of the Signature, no contention has been directed at it whereby use of its know-how and protocols in any framework violates or may violate any third-party rights whatsoever. |
| 5.5. | Canndoc will verify that at all times the Project will comply with all of the Legal and Regulatory Requirements related and/or connected to the Project, and it shall be Canndoc’s responsibility to cause and verify that all of the aforementioned requirements are fulfilled in language and in spirit, at all times. |
| 5.6. | It holds a license for the cultivation and breeding of medical cannabis from the relevant unit in the Ministry of Health. |
| 5.7. | It shall act (at its expense) to obtain all of the licenses and permits required and/or which shall be required for the operation of the Project by the Corporation at every point in time throughout the lifespan of the Project from all of the relevant parties, including a building permit for the post-harvest facility on the Property, and this by October 1, 2019. That stated above includes modification of anything existing on the Property in order that it shall be possible to carry out the project in accordance with the provisions of this Agreement. |
| 5.8. | It has the ability to market the products of the Project in Israel and throughout the world, subject to fulfillment of relevant Regulatory Requirements (it is clarified that as of the Date of the Signature upon this Agreement Canndoc has not yet marketed products overseas). |
| 5.9. | It is aware and agrees that the rights of the Kibbutz in the Corporation may not be diluted. |
| 5.10. | Subject to fulfillment of the suspending conditions, there is no bar from its perspective to its engagement in this agreement and its performance in accordance with and subject to its terms. |
6. Declarations of the Kibbutz
The Kibbutz declares, confirms, and undertakes as follows:
| 6.1. | There is no bar from its perspective to its engagement in this Agreement and its performance in accordance with and subject to the provisions thereof, including fulfillment of the suspending conditions and/or approval of the ILA as shall be needed. |
| 6.2. | The existing greenhouses on the Property were issued and have building permits. |
| 6.3. | The agricultural venture underway on the Property on the eve of the signature upon this Agreement, in which it is a partner, was issued a license pursuant to the Settlement Law, which is valid. |
| 6.4. | As of the Date of the Signature, no demand was directed at it from any competent Authority concerning a lack of a building permit or other license required for the activity conducted in Property on the eve of the signature upon this Agreement. |
7. The Additional Property
| 7.1. | During the course of the Option Period, the Kibbutz shall be responsible to maintain the existing condition of the Additional Property and for the ongoing maintenance of the existing Greenhouses in the Additional Property. It is clarified that one is speaking of a minimal level of maintenance and that the making available of the Greenhouses to the Project subsequent to exercise of the Option will be made when the Greenhouses are in their condition (As Is) on the Date of the Signature upon this Agreement, subject to reasonable wear and tear in light of their condition on the Date of the Signature and the period which shall pass until the exercise of the Option. That stated refers to full exercise of the Option, mutatis mutandis for partial exercise and/or partial exercises. |
| 7.2. | In respect of the maintenance of the Property as stated in clause 7.1 above, during the course of the Option Period, the Kibbutz shall be entitled to receive NIS 50,000 per annum from the Corporation, with the addition of VAT at law, and this for so long as the Option has not been exercised in full or until the date in which the Corporation has notified of cancellation of the Option in writing. |
| 7.3. | For the sake of removal of doubt, it is clarified hereby that the use by the Kibbutz of areas which border and/or are in the same areas as the Additional Property, shall be in accordance with the restrictions set forth in Appendix 7.3. The parties will determine work procedures between them for performance of coordination as required. |
8. Inputs of the Project
| 8.1. | Throughout the duration of the Agreement, the Kibbutz will provide and supply the following resources to the Corporation: |
| 8.1.1. | Ancillary services for agriculture, subject to a separate agreement in writing. |
| 8.1.2. | Accounting. |
| 8.1.3. | Various services to such extent as shall be concluded separately, such as metal works, vehicles mechanic services. |
| 8.1.4. | Use of existing infrastructure in the Property and existing attachments. |
| 8.2. | Throughout the period of the Agreement, Canndoc will provide and supply the following resources to the Corporation: |
| 8.2.1. | Resources required for obtaining all of the permits and licenses required for the Project in accordance with the law, including as specified in clause 5.7 above. |
| 8.2.2. | Modification of the Greenhouses, in such manner that they shall comply with the Standard, including as specified in clause 5.1 and 5.7 above. |
| 8.2.3. | Know-how, agrotechnical assistance, supervision, and supply of the required breeding material for the Project as specified in clause 5.2 above. |
| 8.3. | To such extent as not determined otherwise explicitly in this Agreement, provision of services and/or inputs by any of the founders, including their scope and the proceeds paid in respect thereof, will be determined by agreement. |
9. Purchase of the Crops by Canndoc
| 9.1. | Canndoc undertakes to purchase from the Corporation, and the Corporation undertakes to sell to Canndoc, the entirety of the production of the Project, under terms which shall be concluded in writing between all of the parties to this Agreement from time to time. Without detracting from that stated, it is agreed that in addition to the payment for every ton of crop, Canndoc shall make payments based on growth success every year when the total production of the Project shall exceed 50 tons of crop and enlarged success bonus in every year where the total production shall exceed 75 tons of crop. |
10. The Period of the Agreement
| 10.1. | Unless cancelled earlier in accordance with its conditions and/or the nonfulfillment of any of the suspending conditions, this agreement shall be valid for a period of ten years starting 1.4.2019 (hereinafter - “the First Period”). |
| 10.2. | The Corporation has the option to extend the Agreement period by an additional period of ten years (hereinafter - “the Additional Period”) and this, subject to the following cumulative conditions: |
| 10.2.1. | Until the date of the issue of the notice upon exercise of the Option, there shall be no material breach of the Agreement by the Corporation and/or by Canndoc, which was not remedied within the periods determined in this agreement. |
| 10.2.2. | Exercise of the Option must be made by the issue of notice in writing by the Corporation and Canndoc jointly to the Kibbutz at least six months prior to the date of the expiry of the First Period. Such notice which shall be delivered shall be irrevocable and may not be cancelled. |
| 10.2.3. | An application for a permit in accordance with the Settlement Law shall have been filed for the Additional Period and approval shall have been obtained by the date of the passage of the Frist Period. |
| 10.2.4. | If the Agreement has been extended for the Additional Period, all of the provisions of this Agreement shall apply during the Additional Period, mutatis mutandis. |
| 10.3. | It is agreed that in the event where the competent Authority at law shall not approve the export of cannabis products from Israel by the expiry of 24 months from the Date of the Signature upon this Agreement, and the Corporation has notified by the end of such period upon cancellation of the Option, the First Period shall be abridged to 5 years from the date of commencement of this Agreement and the Additional Period shall be one period of 5 years. |
| 10.4. | Notwithstanding that stated above, each party shall be entitled to cancel the Agreement prior to the end of its Period (whether the First Period or the Additional Period), upon the occurrence of one or more of the following events to the counterparty or by the counterparty: |
| 10.4.1. | In instances where the law entitles the party to cancel the Agreement, unless the cancellation is due to a breach which may be remedied and it was remedied within 21 days from the date in which the party in breach was demanded in writing to remedy the breach. |
| 10.4.2. | If breach of the Agreement is expressed in nonpayment of an amount due from one party to the counterparty on the date determined for its payment, the remedy period for such breach shall be 7 days only. |
| 10.4.3. | In the event where a party to the Agreement has decided to adopt or has adopted or there was adopted against it, proceedings in the field of insolvency (such as but not only, the appointment of a liquidator, the appointment of a receiver of assets, an application for an order of a stay of proceedings, a lien over the assets which may prevent the party from fulfilling undertakings pursuant to this agreement) and such process was not cancelled within 45 days. |
| 10.5. | Cancellation of the Agreement in the aforementioned circumstances will be by notice in writing which shall be delivered by the cancelling party to the counterparty and which shall specify the reason for the cancellation. |
| 10.6. | In the event of an occurrence which constitutes force majeure (such as, for instance, an event of a security nature), which shall impact the possibility to continue and carry out the Project, the parties shall conduct negotiations between them concerning the manner of continuation of the Project with the aim of mitigating the damages and losses and with the aim of continuing the Project after the passage of the influence of such event, in an optimal manner and in light of the circumstances of the matter. An event as stated which shall prevent the majority of the material activity in the framework of the Project for a continuous period of six months or more, will entitle the Corporation to notify upon the cancellation of the Agreement and in such instance, the parties will conduct negotiations concerning the manner and the date of termination of the Project and all of that arising therefrom. |
11. Noncompetition
| 11.1. | For so long as the engagement between the parties is valid and for so long as the Option is valid until its full exercise and subject to its full exercise (meaning all of the Property), and for so long as Canndoc and the Corporation fulfill all of their undertakings towards the Kibbutz and/or a party on behalf of the Kibbutz pursuant to this Agreement and/or any other agreement - the Kibbutz undertakes not to allow any third-party to receive rights in a land square in the Kibbutz for purposes of cultivation and breeding of medical cannabis, and not to engage in the field of cultivation and breeding of medical cannabis itself and/or together with others in Israel or outside of Israel. |
| 11.2. | Canndoc undertakes that the Property will constitute its principal cultivation center in Israel, (subject to the reporting obligation of Canndoc in accordance with the Securities Authority to report thereupon) and that during the course of the Period of the Agreement, it shall not operate in Israel, directly or indirectly, itself or together with others or by means of others, in the field of cultivation and breeding of medical cannabis other than in the framework of the Project. Subject to the Property constituting the principal center of cultivation as stated above, it is agreed that that stated below shall not constitute breach on the part of Canndoc. |
| 11.2.1. | Indoor cultivation which is up to 15 Dunam. |
| 11.2.2. | Cultivation for research purposes only, up to 15 Dunam. |
| 11.2.3. | Cultivation at Kibbutz Beit Ha’Emek, up to 16 Dunam. |
| 11.2.4. | Cultivation of Canndoc with a third-party (one or more) in blossoming in a cumulative area of up to 6 (six) Dunam. For removal of doubt, any cultivation beyond this shall be subject to the consent in advance and in writing of the Kibbutz, and in any event, if such consent shall be received, as part of the conditions thereto, Canndoc shall pay for the cultivation with the third-party in accordance with the formula base on the quantity of tons of crop in the areas of the Project. |
| 11.2.5. | Notwithstanding that stated in clause 11 above, to such extent as the Option shall not be exercised and nonexercise of the Option shall be due to one or more of the following events and not due to a temporary event (as defined below): (a) the Additional Property is not suitable for cultivation of medical cannabis, (b) a material security even occurred which prevents cultivation of medical cannabis in the Additional Property for an extended period, then Canndoc shall be entitled to operate in Israel in the field of activity and not only on the Property and in such case the Kibbutz shall be released of the noncompetition stipulation in clause 11 above. |
| 11.3. | With respect to clause 11.2.5 above “a temporary event” means - a material security event which shall prevent the majority of the material activity in the framework of the Project for a continuous period of up to six months. |
| 11.4. | It is agreed, that subject to the exercise of the entirety of the Option and full and maximum cultivation in all of the areas of the Property, the noncompetition limitation shall not apply to the parties. Without detracting from that stated, Canndoc undertakes after full exercise of the Option as stated, to such extent as it shall seek to cultivate in additional areas in any manner whatsoever, to grant the Kibbutz a right of first refusal for its engagement with any third-party concerning an area exceeding 20 Dunam, and the following provisions shall apply: |
| 11.4.1. | Canndoc shall be obligated to deliver notice to the Kibbutz (hereinafter in this clause - “the Offer Letter”) upon its intent to engage with a third-party (hereinafter - “the Potential Party”) concerning cultivation in an area exceeding 20 Dunam (hereinafter - “the Additional Area”). The Offer Letter will set forth the name of the Potential Party, the financial and other terms of the engagement with respect to the area as stated. |
| 11.4.2. | The Kibbutz shall have forty-five (45) days from the date of receipt of the Offer Letter to confirm its agreement to engage with Canndoc (hereinafter - “the Offer Period”) with respect to the Additional Area under the terms set forth in the Offer Letter (hereinafter -”the Acceptance Letter”) and in such instance, a binding engagement will be consummated between Canndoc and between the Kibbutz, with respect to the Additional Area, in accordance with that stated in the Offer Letter. |
| 11.4.3. | If an Acceptance Letter was not issued within the Offer Period, Canndoc shall be entitled to engage with the Potential Party, and provided that the engagement in the transaction with the Potential Party will be carried out not later than the passage of forty-five (45) days from the end of the Offer Period, pursuant to the terms of the Offer Letter. |
| 11.4.4. | If an engagement with a Potential Party was not carried out within the forty-five (45) days from the end of the Offer Period, pursuant to the terms of the Offer Letter, the engagement with respect to the Additional Area will again be subject to the right of first refusal pursuant to this clause 11.4. |
12. Confidentiality
| 12.1. | The details of this Agreement and any information which shall reach one party from the other pursuant to this Agreement (hereinafter - “the Information”) shall be maintained by the parties in confidence, shall not be disclosed to third parties and no use will be made in such information, other than for purposes of performance of this agreement and performance of the Project. |
| 12.2. | Notwithstanding that stated, a party to this Agreement shall be entitled to disclose information to its employees, members, partners, representatives, actual and implied supervisors, and consultants, when the party receiving the Information will adopt reasonable steps in order that the recipient of the Information from him as stated shall not make use of the Information other than for fulfillment of this agreement and shall not disclose it to any third-party. |
| 12.3. | The undertaking to maintain confidentiality and nonuse as stated, shall not apply, or shall cease to apply, in any one of the following instances: |
| 12.3.1. | Information whose disclosure will be required by a competent Authority and by various regulators. |
| 12.3.2. | Information which shall be delivered ahead of or in the framework of legal proceedings. |
| 12.3.3. | Information which was in the possession of the party prior to receiving it from the counterparty. |
| 12.3.4. | Information which is deemed public domain on the Date of the Signature or shall become such thereafter, other than as a result of an act or omission of the recipient of the information or a party on its behalf. |
| 12.3.5. | Information which shall reach a party from any third-party where to the best of the knowledge of the party, the recipient of the Information is not obligated in confidentiality towards the other party. |
| 12.3.6. | Information which a party whose shares or the shares in the corporation controlling it or controlled by it are traded on a recognized stock exchange, and it is obligated in its disclosure in the framework of the law and the rules applying to such entity. |
13. Investment option for the Kibbutz
| 13.1. | The Kibbutz shall have an option to invest in Canndoc or in a corporation associated with Canndoc in accordance with the provisions of Appendix 13.1 of this Agreement. |
14. Services to the Project by other parties
| 14.1. | The Corporation and the Kibbutz will discuss additional services which the Kibbutz may provide to the Corporation during the course of the period of the Agreement. In any event, the Kibbutz will have a first right to provide services which are relevant to the activity in question in the Project, which the Corporation will seek to acquire during the course of the period of the agreement. |
| 14.2. | The Corporation will acquire electricity and water services from the Kibbutz in accordance with the Israel Electricity Company and Water Authority prices (respectively) as customary with respect to other businesses in the area of the Kibbutz. |
15. Suspending conditions
| 15.1. | Cumulative suspending conditions for performance of this Agreement are specified below, and the nonfulfillment of any of the aforementioned conditions within 180 days from the Date of the Signature, shall create a situation where this Agreement shall be deemed void, nonbinding and lacking validity, and no party shall be bound by it. And these are the conditions: |
| 15.1.1. | Receipt of a permit from the Supervisor of the Settlement Law. The parties will cooperate fully and transparently in the contact with the Supervisor pursuant to the Settlement Law, with the aim of receiving such permits as early as possible. In the event of a demand of the Supervisor for an amendment or a change in the Agreement as a condition to receipt of the permit pursuant to the Settlement Law, the parties will discuss same in good faith however it is clarified that neither party shall be obligated to agree to such demand even if the results of nonagreement shall be nonreceipt of the permit, and the party who shall not agree to such demand shall not be responsible for compensating or indemnifying the counterparty. The parties have taken that stated into account and have agreed, when they are aware of the implications arising therefrom. |
| 15.1.2. | Approval required for the Project from the Medical Cannabis Unit at the Ministry of Health. |
| 15.1.3. | Approval of the competent organs of the Kibbutz, of the Corporation, and of Canndoc. The parties will adopt the steps required in order to bring the Agreement for approval of the aforementioned organs within 30 days from the Date of the Signature. No party shall bear responsibility toward the counterparty if the competent organ thereof has not approved the engagement pursuant to the Agreement. |
| 15.2. | It is clarified that it is Canndoc’s responsibility at its expense to obtain the approvals in question in clause 15.1.1 and 15.1.2. |
16. Assignment of rights
| 16.1. | A party to this Agreement shall not transfer and shall not assign, directly or indirectly - this Agreement or a right or obligation thereunder, to any third-party without receiving the consent in advance and in writing of the counterparty. |
| 16.2. | Notwithstanding that stated in clause 16.1 above, the Kibbutz shall be entitled to transfer rights and obligations to a corporation under its control, and provided that such transfer shall not cause cancellation of the permit or license or detrimental change in the terms of the permit or license issued by any Regulatory Authority for the Project. |
| 16.3. | To such extent as the parties shall have the status of a public company whose shares - or any part thereof - are traded in any recognized stock exchange in the world, the trading of shares or rights of such public company shall not be considered an action contravening the provisions of clause 16.1 above. |
| 16.4. | Nothing in that stated above shall prevent a party from assigning its rights to receive funds from the Corporation and/or from the counterparty - to such extent as such rights exist or shall exist in the future. |
17. Miscellaneous
| 17.1. | This Agreement exhausts the relations of the parties in everything related to its subjects, and any arrangement, agreement, promise, or representation made prior to the Date of the Signature, if made, are null and void unless stated otherwise in this Agreement. |
| 17.2. | Any change or amendment to this Agreement may be made in writing only. A change not in writing and without the signature of both parties shall not be deemed binding. |
| 17.3. | All of the remedies and reliefs pursuant to the law and/or this Agreement are cumulative and not alternative. |
| 17.4. | Nothing in this Agreement shall accord Canndoc and/or the joint corporation any rights in the Property and/or in water. The Property and the water rights belong to the Kibbutz for all intent and purposes. |
18. Addresses and notices
The addresses of the parties for purposes of this agreement are as specified in the preamble to this Agreement and any notice delivered by a party to its counterparty will be deemed a notice which was received on the relevant date as specified below:
| Sent by registered post | - | within 5 days from the date of its dispatch. | |
| Personally delivered | - | the date of its delivery. | |
| Facsimile or e-mail dispatch | - | the date of the dispatch and provided that the receipt of the dispatch was confirmed by the counterparty by a telephone call which took place immediately after the dispatch, and the party conducting the telephone call on behalf of the dispatching party confirmed in an affidavit the existence of the telephone conversation, the date, the time of its occurrence and the name of the party speaking on behalf of the party to whom the message was sent, and that it was confirmed to him that the message was sent was received. |
In witness whereof the parties have signed
| The Kibbutz | The Corporation | Canndoc |
Exhibit 4.4
InterCure Ltd.
Israeli Shares and Options Allotment Plan
(*Pursuant to Section 102 of the Income Tax Ordinance (New Version), 5721-1961 and the Amendment to the
Income Tax Ordinance Law (No. 132), 5762-2002)
This Plan, as amended from time to time, will be referred to as the Israeli Shares and Options Allotment Plan of InterCure Ltd. (hereinafter, respectively: the “Plan” and the “Company”).
| 1. | Preamble |
The purpose of this Plan is to allocate options – exercisable into the Company’s shares – and/or the Company’s shares to employees, consultants, service providers and directors of the Company and related companies, as defined below, in order to create incentives for them and share the development and success of the Company with them.
| 2. | Definitions |
For the purposes of the Plan and the documents associated with it, including the Grant Agreement, as defined below, the following definitions will apply:
| 2.1 | “Option” means the right to purchase one or more shares of the Company, subject to this Plan. |
| 2.2 | “102 Option” or “102 Share” means an option or share that is granted to employees subject to Section 102 of the Ordinance, as defined in this section below. |
| 2.3 | “102 Option with a Trustee” or “102 Share with a Trustee” means an option or share that is granted subject to Section 102(b) of the Ordinance that is held in trust by a trustee for the employee. |
| 2.4 | “102 Option without a Trustee” or “102 Share without a Trustee” means an option or share that is granted subject to Section 102(c) of the Ordinance that is not held in trust by a trustee for the employee. |
| 2.5 | “Capital Gains Option” or “Capital Gains Share” – As defined in Section 5.4 of the Plan. |
| 2.6 | “Work Income Option” or “Work Income Share” – As defined in Section 5.5 of the Plan. |
| 2.7 | “3(i) Option” – Means an option that is granted to non-employees subject to Section 3(i) of the Ordinance. |
| 2.8 | “Controlling Shareholder” – As defined in Section 32(9) of the Ordinance. |
| 2.9 | “Board of Directors” means the Company’s Board of Directors. |
| 2.10 | “Grant Agreement” – Means an option grant agreement or a share grant agreement between the Company and the offeree, which governs and determines the terms of the allotted options or shares. |
| 2.11 | “Committee” – Means a committee that is appointed by the Board of Directors, whose number of members will be no fewer than three (with one of the committee members being an external director and one of them being a director with accounting and financial expertise). |
| 2.12 | The “Company” means InterCure Ltd., a company incorporated under the laws of the State of Israel. |
| 2.13 | “Related Company” means an “Employer Company” as defined in Section 102(a) of the Ordinance. |
| 2.14 | “Purchasing Company” means any entity into which the Company merges or that is purchased by it, provided that the Company is not the surviving company. |
| 2.15 | The “Companies Law” means the Israeli Companies Law, 5759-1999. |
| 2.16 | The “Chairperson” means the Chairperson of the Committee. |
| 2.17 | “Grant Date” means the date on which an option or share is granted, as determined by the Board of Directors or as stated in the Grant Agreement with the Offeree. |
| 2.18 | “Purchase Date” means, as determined by the Board of Directors or the Committee, the date on which the Offeree becomes entitled to exercise the options or sell the shares or part thereof, as stated in Section 11 of the Plan. |
| 2.19 | “Option Expiration Date” means the date on which the option expires, as stated in Section 10.2 of the Plan. |
| 2.20 | “Strike Price” means the price of each share that is subject to an option. |
| 2.21 | “Share” means an ordinary share of the Company, without par value each. |
| 2.22 | “Trustee” means anyone appointed by the Company to serve as a trustee, and approved by the tax authorities, and all subject to Section 102(a) of the Ordinance. |
| 2.23 | “Offeree” means a person to whom options or shares are granted under the Plan. |
| 2.24 | “Reason” means each of the following: (a) conviction of an offense that entails moral turpitude or an offense that affects the Company and/or related companies; (b) embezzlement of the Company’s funds and/or funds of related companies; (c) a fundamental breach of their obligations to the Company; (d) an immoral act that caused damage to the Company’s reputation; (e) any act or omission that, in the Company’s view, could harm the condition or reputation of the Company. |
| 2.25 | “Section 102” means Section 102 of the Ordinance, in its present form or as amended in the future, and all of the rules and/or regulations and/or any ruling and/or other statute pursuant to that section, including the Income Tax Rules (Special Tax Terms with Respect to Allotting Shares to Employees), 5763-2003. |
| 2.26 | “Employee” means an employee employed by the Company or a related company and a senior officer or director of the Company or a related company (even if there is no employer-employee relationship between the parties), to the exclusion of controlling shareholders. |
| 2.27 | “Transaction” means (1) a merger, acquisition, or reorganization of the Company with or into another company, provided that the Company is not the surviving company; (2) the sale of all or a substantial part of the Company’s operations. |
| 2.28 | The “Ordinance” means the Income Tax Ordinance (New Version), 5721-1961, in its present form or as amended in the future. |
| 2.29 | The “Tax Authorities” means the tax authorities in Israel. |
| 2.30 | “Non-Employee” means a consultant, service provider, controlling shareholder or any other entity that is not an employee. |
| 2.31 | “Market Value” – At any given time, the value of a share, which will be determined as follows: |
| (1) | If the shares are listed for trade on a known stock exchange or a national market system, the market value will be the closing price of the share (or, if the closing quote if no sales are reported), as reported on the stock exchange or the national market system as stated on the last day that preceded the effective date, as reported by any source, which will be selected by the Board of Directors at its discretion. |
| Without derogating from the foregoing, and only for the purpose of determining tax liabilities in accordance with Section 102(b)(3) of the Ordinance, if, on the Option Grant Date or the Share Grant Date, the Company’s shares are listed for trade on any stock exchange or national market system, or if the Company’s shares are listed for trade within ninety (90) days of the Option or Share Grant Date, the Market Value of the share on the option allotment date or the share allotment date will be determined according to the average value of the Company’s shares during the thirty (30) trading days that precede the Option or Share Grant Date, or during the thirty (30) trading days after the public offering date, as the case may be. |
| (2) | If there is a current report on the shares through a licensed share trader, but there is no report on sale prices, the Market Value will be determined according to the average of the highest offer and the lowest price of the shares on the last trading day that precedes the record date; or |
| (3) | In the absence of a regulated share market, the Market Value will be determined by the Board of Directors in good faith. |
| 2.33 | The “Plan” means this Plan. |
| 3. | Plan Management |
| 3.1 | This Plan will be directly managed by the Company’s management, or pursuant to the Committee’s recommendation, subject to any valid law, and the Company’s Articles of Association. The Board of Directors will have residual authority in the event where no Committee is appointed or if the Committee ceases to serve as the Committee for any reason whatsoever, or if the Committee is not authorized to act under applicable law under the supervision and pursuant to the approval of the Board of Directors. |
| 3.2 | The Committee will select one of its members as a Chairperson and will convene on the dates and places that will be determined by the Chairperson. The Committee’s meetings will be recorded by means of minutes. The Committee will determine rules and regulations for the management of its work, in accordance with its discretion. |
| 3.3 | The Committee will have the absolute exclusive authority and discretion with respect to providing the Board of Directors with recommendations, and the Board of Directors will have the exclusive and absolute discretion to decide as follows: |
| (1) | To determine the identity of the Offerees and the number of options or shares that is granted the Offerees; |
| (2) | To determine the terms of the Grant Agreements, including the number of options or shares that are granted to each Offeree, the number of shares that are subject to each option, the times and exercise conditions of the option, and the Strike Price, and to apply restrictions on the transferability of the options and/or shares, as well as and terms with respect to the seizure of options and shares, and to cancel and suspend grants. |
| (4) | To choose the taxation terms of 102 Options with a Trustee or of 102 Shares with a Trustee. |
| (5) | To determine the type of option or share that is granted in accordance with Section 102. |
The Board of Directors will have the absolute authority and discretion to decide as follows:
| (1) | To change restrictions and conditions that apply to options or shares; |
| (2) | To interpret the terms of the Plan and to supervise the Plan’s management; |
| (3) | To fully or partially accelerate the purchase dates of the options or shares that were granted to each Offeree, subject to Section 102 of the Ordinance; |
| (4) | To suspend, terminate or cancel the Plan, in whole or in part, to amend or change the Plan and its provisions. |
| (5) | To make decisions or determinations with respect to any other matter that is necessary for the Plan’s management. |
| 3.4 | The Board of Directors will have the authority to grant to the Offeree, at its discretion, in exchange for canceling the option that was granted to him, a new option whose Strike Price is identical, lower or higher than the Strike Price of the original option that was canceled, and that is subject to other terms, or to change the Strike Price of the option as determined by the Board of Directors in accordance with the terms of the Plan. |
| 3.5 | Subject to the Company’s Articles of Association, all of the decisions of the Board of Directors and/or Committee in connection with the Plan will be made by a majority of votes, but any member of the Board of Directors or Committee will be deprived of the right to vote or the right to rank among the members that are needed for the approval or decision of the Board of Directors and/or Committee with respect to granting options or shares to that member. Any written decision of the Board of Directors and/or Committee will be made in accordance with the Company’s Articles of Association. |
| 3.6 | The Committee’s interpretation with respect to each section of the Plan or the Grant Agreement will be final and absolute, unless determined otherwise by the Board of Directors. |
| 3.7 | Subject to the Company’s Articles of Association and the Company’s decision, and subject to all of the certificates required under applicable law, including the Companies Law, each member of the Board of Directors or Committee will be indemnified, will not be held personally liable, and will not be liable in any way, for a reasonable expense that they incur (including reasonable consultation expenses) in connection with actions that were taken by them or that they refrain from doing in connection with the Plan, unless such actions were taken fraudulently or in bad faith, up to the amount that is determined by applicable law and/or the Company’s Articles of Association. Such indemnification will be in addition to the right to indemnification that the member has, if applicable, by virtue of their being a director of the Company or pursuant to the provisions of the Company’s Articles of Association, an agreement, a resolution of the general meeting of shareholders, insurance policies, etc. |
| 4. | Determining the Plan Participants |
| 4.1 | Among those qualified to participate in the Plan as Offerees are employees and Non-Employees of the Company or of Related Companies, provided that: (1) employees will only receive 102 Options or Shares; (2) Non-Employees will only receive 3(i) Options; (3) Controlling Shareholders will only receive 3(i) Options. |
| 4.2 | The granting of an option or a share to an Offeree under this Plan does not entitle the recipient of the Option or Share to or deprive them of the right to participate in other allotments by virtue of the Plan or any other grant or share allotment plan of the Company or of related companies. |
| 4.3 | Without derogating from the foregoing, any granting of an option or a share to a director and officers will be approved and implemented in accordance with the provisions of the Companies Law, as in force from time to time, and/or any law that supersedes it. |
| 5. | Determining the type of options or shares in accordance with Section 102 |
| 5.1 | The Company can determine the type of options or shares that will be granted to employees in accordance with Section 102 as Non-Trustee 102 Options or Non-Trustee 102 Shares or Trustee 102 Options or Trustee 102 Shares. |
| 5.2 | The granting of Trustee 102 Options or Trustee 102 Shares under this Plan will be subject to the approval of the Plan by the Board of Directors as stated in Section 14 below, and will be subject to the Plan’s approval by the Tax Authorities. |
| 5.3 | Trustee 102 Options or Trustee 102 Shares can be classified as Capital Gains Options or Capital Gains Shares or as Work Income Options or Work Income Shares. |
| 5.4 | Trustee 102 Options or Trustee 102 Shares with respect to which the Company determined that the tax that will apply will be capital gains tax in accordance with Section 102(b)(2) of the Ordinance and Section 12(b)(3) of the Ordinance will be hereinafter referred to as “Capital Gains Options” or “Capital Gains Shares,” respectively. |
| 5.5 | Trustee 102 Options or Trustee 102 Shares with respect to which the Company determined that the tax that will apply will be work income tax in accordance with Section 102(b)(1) of the Ordinance will be hereinafter referred to as “Work Income Options” or “Work Income Shares,” respectively. |
| 5.6 | The Company’s choice with respect to the type of Trustee 102 Option or Trustee 102 Share as a Capital Gains Option or Capital Gains Share or as a Work Income Option or as a Work Income Share (hereinafter: the “Choice”) will be submitted as required to the Tax Authorities before the allotment date. The Choice will enter into force as of the first grant date and will remain in force at least until the end of the year after the year in which the Company grants a Trustee 102 Option or Trustee 102 Share for the first time. The Choice will only require the Company to grant the Trustee 102 Options or the Trustee 102 Shares that it chose, and it will apply to all of the Offerees who receive Trustee 102 Options or Trustee 102 Shares in the course of the aforementioned period of time, and all in accordance with Section 102(g) of the Ordinance. For the avoidance of doubt, the Choice will not prevent the Company from simultaneously granting Non-Trustee 102 Options or Non-trustee 102 Shares. |
| 5.7 | All of the Trustee 102 Options or Trustee 102 Shares will be held in trust by a trustee, as described in Section 6 below. |
| 5.8 | For the avoidance of doubt, the determination of the type of Trustee 102 Options or Trustee 102 Shares or Non-trustee 102 Options or Non-trustee 102 Shares will be subject to the conditions of Section 102 of the Ordinance. |
| 5.9 | In case of Trustee 102 Options or Trustee 102 Shares, the terms of the Plan and/or Grant Agreement will be subject to the terms of Section 102 of the Ordinance and the approval of the tax assessor, and those terms and approval will be an integral part of the Plan and the Grant Agreement. All of the conditions of Section 102 and/or the approval as stated, which are necessary for obtaining and/or maintaining special tax benefits in accordance with Section 102, and which are not expressly stated in the Plan or Grant Agreement, will be regarded as applicable to and binding on the Company and the Offerees. |
| 6. | Trustee |
| 6.1 | Trustee 102 Options or Trustee 102 Shares that are granted pursuant to the Plan and/or shares that are issued pursuant to the exercise of Trustee 102 Options and/or other shares that are issued pursuant to the exercise of rights, including bonus shares, will be allotted or issued in the name of the Trustee and held by them in the course of the periods of time that are set forth and required under Section 102 and/or any law and/or regulations and special rules that are enacted pursuant thereto (hereinafter: the “Block Period”). If the conditions for granting Trustee 102 Options are Trustee 102 Shares are not fulfilled, then the Trustee 102 Options or Trustee 102 Shares that were granted might be regarded as Non-trustee Options or Non-trustee 102 Shares, and all in accordance with the conditions of Section 102. |
| 6.2 | The Trustee will not provide the Offeree with shares that were allotted as a result of the exercise of Trustee 102 Options or Trustee 102 Shares before the full payment of the tax liability that stems from the Trustee 102 Shares or Trustee 102 Options or that were granted to the Offeree and/or the shares that were allotted as a result of their exercise as stated. |
| 6.3 | With regard to Trustee 102 Options or Trustee 102 Shares, subject to the conditions of Section 102 of the Ordinance, an Offeree will not sell or transfer shares from the Trustee, including bonus shares and options and/or shares that were granted to the Offeree in the framework of warrants, until the lapse of the Block Period that is required pursuant to Section 102 of the Ordinance. The aforementioned notwithstanding, if such a sale or transfer takes place within the Block Period, the sanctions under Section 102 of the Ordinance will apply to the Offeree, and the Offeree will pay the tax derived from the provisions of Section 102 of the Ordinance. |
| 6.4 | Upon receiving a Trustee 102 Option or Trustee 102 Share, the Offeree will sign an undertaking to release the Trustee from any liability for actions or decisions that were made in good faith in connection with the Plan, or for any Trustee 102 Option or share that was granted to them. It is hereby clarified that, in the framework of this signature, the Offeree will release the Company from any liability for the Trustee’s actions. |
| 7. | Reserved shares, restrictions |
| 7.1 | The Company may allot options or shares under the Plan and other compensation plans that it chooses to implement in the future, subject to adjustments as a result of changes in the Company’s equity, as stated in Section 9 below, up to the number of shares of which its registered and unpaid share capital consists. If an option that was granted under the Plan expires or is canceled before the exercise date, or if the Offeree waives the exercise of an option as stated, the shares that were not purchased by virtue of the option will be available with respect to the Plan, and they could be used, including for the purpose of their re-allotment to other Offerees. |
| 7.2 | The granting of an option or share to an Offeree under the Plan will be pursuant to a written Grant Agreement between the Company and the Offeree in the form approved by the Board of Directors pursuant to the recommendation of the Committee, as provided from time to time. Each Grant Agreement will state, inter alia, the number of shares derived from the exercise of the option, the type of option or share granted (e.g., Capital Gains Option, Work Income Option, Non-Trustee 102 Option, or Option 3(i)), the grant date, the Strike Price of the share, the expiration date of the option and other terms as determined by the Committee or Board of Directors, provided that they are in line with the terms of the Plan. |
| 8. | Strike Price |
| 8.1 | The Strike Price of each share with respect to the option will be determined by the Board of Directors at its sole discretion and in accordance with the provisions of applicable law, and subject to the guidelines of the Committee as provided from time to time. The Strike Price for each Offeree will be determined in the Option Agreement that is signed between the Offeree and the Company. |
| 8.2 | The Strike Price will be paid on the option’s exercise date in a way that is determined by the Board of Directors, including cash or check. The Board of Directors will have the authority to postpone the payment date under the terms determined by it. |
| 8.3 | The Strike Price will be denominated in the main currency used in the economic environment of the Company or the Offeree (i.e., the functional currency of the Company or the currency in which the employee is paid), as determined by the Company. |
| 8.4 | Without derogating from the generality of the foregoing, and subject to the payment of applicable tax by the Offeree, the Board of Directors of the Company will have the authority to enable the Offerees to exercise the options under the Plan or to determine that they will exercise the options under the plan, in whole or in part, through the mechanism used to exercise options into shares on the basis of the bonus component (net exercise), pursuant to which the Offeree will be entitled to receive shares that reflect the bonus component of the options that are exercised in accordance with the following formula, in exchange for the par value of the shares, and that alone. |
For the avoidance of doubt, it is hereby clarified that, according to this exercise method, the options can only be exercised into the number of shares that reflects the bonus component. The Offeree will not pay the Strike Price only for the purposes of calculating the bonus component.
The number of shares that can be purchased by the Offeree under this mechanism in exchange for the par value will be determined according to the following formula:
Y = The number of exercisable options whose grant date has elapsed and have yet to be exercised, and that the Offeree wishes to exercise using this mechanism, subject to the adjustments that are set forth in the Option Plan.
A = The market value of each share on the exercise date.
B = The Strike Price of each option, subject to the adjustments determined in the Option Plan.
N = The par value of each share.
| 9. | Adjustments |
Upon each of the following events, the Offeree’s right to purchase shares under the Plan will be subject to the following adjustments:
| 9.1 | In case of a Transaction (as defined above), each option or share granted under the Plan that is yet to be exercised or with respect to a share – if its Block Period is yet to elapse, it will be replaced by or converted into options or shares, respectively, according to the number of shares under the warrant that have yet to be exercised or according to the number of blocked shares, or any security of the purchasing company (or a parent company or a subsidiary of the purchasing company), which were distributed to the shareholders of the Company against shares with respect to the aforementioned transaction, and the Strike Price of the share will be suitably adjusted (with respect to the aforementioned options) so as to reflect such an event, and all of the other conditions of the Grant Agreement will remain in force, including the grant date, and all as determined by the Board of Directors, whose decision will be exclusive and final. The Company will inform the Offeree of the transaction in a manner and form that will be deemed appropriate by the Company at least ten (10) days before the Record Date of Transaction. |
| 9.2 | Without derogating from the foregoing and subject to the provisions of applicable law, the Board of Directors will have the authority to determine, at its exclusive and final discretion and in connection with certain grant agreements, that the Grant Agreement contain a section that states that if, upon the occurrence of the Transaction as stated in Section 9.1 above, the purchasing company (or a parent company or a subsidiary of the purchasing company) does not agree to convert or replace the blocked options and/or shares, the grant dates of all or some of the blocked options or shares, whose grant date has yet to elapse, will be earlier, and the Offeree will be entitled to exercise those options or sell the blocked shares ten (10) shares before the occurrence of the Transaction described in Section 9.1 above. |
| 9.3 | For the purpose of Section 9.1 above, the option (in this paragraph below, including Block Shares, mutatis mutandis) will be regarded as replaced or converted if, following the Transaction, the option grants the right to purchase or receive, with respect to any share that is subject to the option, immediately before the Transaction, the consideration (shares, options, cash or securities or any other asset) received as a result of the Transaction by the shareholders with respect to any share held on the Record Date of the Transaction (and, if such holders are given a choice with respect to the consideration, the type of consideration chosen by the holders of the majority of shares); provided that, if such consideration is received in case of a transaction is not only given in the form of ordinary shares (or the equivalent thereof) of the purchasing company (or a parent company or a subsidiary thereof), the Board Directors may, after receiving the consent of the purchasing company, determine that the consideration that is received upon the exercise of the option will only consist of ordinary shares (or the equivalent thereof) of the purchasing company (or the parent company or its subsidiary), whose market price is equal to the price of the share received by the holders of the majority of the shares involved in the Transaction; and provided that the Board of Directors may determine, at its discretion, that, in such cases of replacement or conversion of options against an option of the purchasing company, such an option will be replaced against any type of any other asset, including cash, in a manner that is fair under the circumstances. |
| 9.4 | If it is decided to voluntarily liquidate the Company when options exist that are yet to be exercised under the Plan, the Company will inform all of the option holders of the aforementioned decision, and each option holder will have ten (10) days to exercise the options that have yet to be exercised and whose grant date has elapsed, in accordance with the exercise process that is presented below. Upon the lapse of those 10 days, all the options that have yet to be elapsed by that date will immediately expire. |
| 9.5 | In any event where changes occur to the issued share capital of the Company by way of a dividend distribution into shares (bonus shares), share splitting, consolidation or replacement, changes to the Company’s capital structure or any similar event, the number and type of shares that can be allotted under the Plan and/or the number and type of shares that will be derived from the exercise of the options under the Plan will be adjusted, and the Strike Price will be adjusted pro rata so as to proportionally preserve the number of shares and their cumulative Strike Price. |
| 9.6 | If the Company offers its shareholders securities of any kind by way of issuing rights of the Company, no adjustment will be made on account of those rights. |
If the Company distributes a dividend, and the record date of the entitlement to the dividend distribution falls before the end of the exercise period of the unregistered warrants, the Strike Price of the warrants will be adjusted by way of multiplying it by the ratio between the price of the Company’s shares on the stock exchange, adjusted for the dividend distribution, as determined by the Stock Exchange (hereinafter: the “X Dividend Price”) and the closing price determined on the Stock Exchange of the Company’s share on the last trading day before the X dividend date. The Company will notify of the aforementioned adjusted Strike Price of the warrants, by way of an immediate report, before trading starts on the X dividend day.
| 9.7 | Pursuant to instructions of the Tel Aviv Stock Exchange following the transition into settlements on the T+1 day with respect to shares that are convertible into securities, the options will not be converted on the Record Date of bonus share distribution, into an offering by way of rights, into a dividend distribution, into capital consolidation, into capital splitting or capital reduction (each of the foregoing will be hereinafter referred to as a “Company Event”). In addition, if the X day of a Company Event falls before the Record Date of the Company Event, the option will not be converted on the X day as stated. |
| 10. | Terms of options and shares and exercising options |
| 10.1 | If an Offeree is offered the exercise of the option in their possession, they will notify the Company or a representative thereof of this in writing, in the form and manner determined by the Company, and, as needed, by the Trustee in accordance with the requirements of Section 102. The exercise will be in force upon the receipt of the exercise notice by the Company and/or a representative thereof and the payment of the Strike Price by the Company’s office or a representative thereof. In the notice, the Offeree will state the number of shares with respect to the option that the Offeree wishes to exercise. In addition, all of the other documents that the Offeree is required to sign will be attached to the notice, as a condition for the Option’s exercise, as stated in the Plan and the option agreement, and pursuant to the decision of the Board of Directors. |
| 10.2 | The Option will expire if it is not converted into a share beforehand, on the earlier of the following: (1) The expiration date as stated in the option agreement, provided that the period of time for the aforementioned exercise does not exceed 12 years as of the grant date; (2) the expiry of the term in the cases stated in Section 10.5 below. |
| 10.3 | The options or any part thereof will be exercisable by the Offeree in full at any time, from time to time, if the grant and exercise date of the option have elapsed, and before the expiration date, provided that, subject to the conditions of Section 10.5 below, the Offeree is employed by or provides services to the Company or related companies at any time during the period of time that begins upon granting the option and ends on its exercise date. |
| 10.4 | Subject to Section 10.5 below, the Offeree ceases to be an employee or a service provider of the Company or related companies, all of the options granted to it will expire in accordance with Section 10.5. Notice of the termination of labor relations or the provision of services will be regarded as the termination of such a relationship. For the avoidance of doubt, in the event where a labor relationship or service provision is terminated, the options whose grant date has yet to elapse on the date on which the relationship terminates will not be granted and will not be exercisable, except pursuant to a certain decision of the Board of Directors. |
| 10.5 | The aforementioned notwithstanding, and unless otherwise stated in the option agreement of the Offeree, the Offeree may exercise an option on a date that falls after the termination of the employer-employee or service provision relationship in the course of an additional period of time after the termination of the relationship, but only with respect to options whose grant date has elapsed on the date on which the relationship was terminated, in accordance with the grant periods of the option, and all in accordance with the following cases: |
| (1) | If the relationship was terminated without a Reason, the Offeree will have the right to exercise the options that he was entitled to exercise under the option agreement in accordance with the grant dates and provided that they have yet to expire, for three (3) months after the end of the relationship. |
| (2) | If the relationship ended as a result of the Offeree’s death or disability, the Offeree or his legal heirs will have the right to exercise the options that the Offeree was entitled to exercise under the grant agreement in accordance with the grant dates and provided that they have yet to expire for three (3) months after the end of the relationship. |
| (3) | The Board of Directors has approved, on a date that precedes the end of the relationship, or thereafter, or a special date determined for this purpose in the employment agreement signed with the Employee, the extension of the terms of the options that have yet to expire, beyond the date of the end of the relationship, by a period of time that will not exceed the original period of time that was determined for the exercise of the option, and all subject to the provisions of Section 102 of the Ordinance. |
For the avoidance of doubt, if the relationship was terminated because of a Reason, the options will expire for all intents and purposes (whether or not the Offeree, on the date of the relationship’s termination, was entitled to exercise some of the options) and the Offeree will have no rights in connection with the options.
| 10.6 | The Offeree for whom the Trustee holds shares, has the right to participate in shareholder meetings, and the right to receive dividends and any other right that Company shareholders have. |
| 10.7 | A grant agreement that is approved under the Plan may include additional conditions, at the Board of Directors’ discretion from time to time. |
| 10.8 | With regard to Non-trustee 102 Options, upon the termination of the relationship with the Company or related companies and the Offeree, the Offeree will provide the employer with collateral or a guarantee for the payment of the tax that applies on the date of the shares’ sale, and all in accordance with Section 102 of the Ordinance. If the Offeree fails to provide collateral, the warrants will expire. |
| 10.9 | Under blocked share grant agreements, the Offeree will be entitled to participate in shareholder meetings, receive dividends, and any other right that Company shareholders have, but they will not be able to sell the blocked shares or transfer them to their possession before their purchase date has elapsed. Upon the end of the relationship, the Offeree will be entitled to all of the blocked shares whose grant date has elapsed. Blocked shares whose grant date has yet to elapse will be repurchased by the Company in exchange for their par value and subject to the provisions of applicable law. |
| 11. | Terms of options and shares (continued) |
| 11.1 | Subject to the terms of the Plan, any blocked option or share can be exercised or sold, respectively, according to the grant dates and with respect to the number of shares as determined in the grant agreement. However, the options will not be exercisable after the expiration date. |
| 11.2 | Blocked options and shares can be subject to additional conditions that pertain to the date of their exercise or blocking, respectively, as determined by the Board of Directors at its discretion. The grant dates of the blocked options and shares may differ from each other. |
| 12. | Dividends |
All shares (apart, for the avoidance of doubt, from options that are yet to be exercised) allotted to Offerees or the Trustee, as the case may be, against the exercise of options, will entitle their owners to the right to receive dividends according to the number of shares, subject to the Company’s Articles of Association and subject to the taxes that apply to such a dividend distribution, as the case may be and subject to Section 102 of the Ordinance and the rules, regulations, orders and procedures derived therefrom.
| 13. | Plan Period |
The Plan will enter into force upon its adoption by the Company’s Board of Directors, and will expire ten (10) years after its adoption.
| 14. | Changes to or termination of the Plan |
At any time, and, as the case may be after consulting the Trustee, the Board of Directors may amend, change, suspend or terminate the Plan. Such amendments, changes, suspensions or termination will not derogate from the rights of any Offeree, unless a written agreement is reached by the Offeree and the Company, signed by the Offeree and the Company. The termination of the Plan will not derogate from the rights of the Committee to exercise the powers entrusted to it under the Plan, with respect to options that were granted under the Plan before its termination.
| 15. | Applicable rules |
The Plan and the granting and exercise of options and shares thereunder, and the Company’s undertaking to sell and transfer shares by virtue of the options, will be subject to all of the suitable laws, regulations and rules of the State of Israel or the United States or any other country that has jurisdiction over the Company and the Offeree, including the registration of the shares in accordance with the United States Securities Act of 1933, the Ordinance and the certificates issued by government ministries or stock exchanges, as required. The above does not require the Company to list its shares in accordance with the securities laws of any judicial authority.
| 16. | Continued employment |
No provision of this Plan and the grant agreement with the Offeree may be interpreted as an undertaking and/or consent on the part of the Company and/or any related company to continue to employ the Offeree, and no provision of the agreement and/or Plan may be interpreted as granting the Offeree any right to continue to be employed by or to provide services to the Company and/or a related company, or as restricting the right of the Company and/or a related company to terminate the employment of any Offeree at any time.
| 17. | Applicable law and jurisdiction |
The Plan will be managed, interpreted and enforced in accordance with the laws of the State of Israel that apply to agreements that were made therein, regardless of choice of law principles. The exclusive jurisdiction under this Plan will be entrusted to the competent courts in Tel Aviv, Israel.
| 18. | Taxation and other arrangements that pertain to the transfer of shares to the Offeree |
| 18.1 | The Offeree will exclusively incur all of the tax liabilities that are derived from the allotment, granting and exercise of options, and shares, and the transfer of and payment for shares pursuant to the exercise of options or any other act (of the Company and/or related companies and/or the Trustee and/or the Offeree). The Company and/or related companies and/or the Trustee will deduct, in accordance with applicable law, regulations and rules, all taxes, including withholding taxes. The Offeree agrees to indemnify the Company and/or related companies and/or the Trustee for and to exempt them from any liability with respect to the payment of such taxes, interest and fines, as well as any other payments, including charges that originate in the need to withhold tax or the failure to withhold tax with respect to any payment that was transferred to the Offeree. |
| 18.2 | The Company and/or the Trustee, as the case may be, will not transfer share certificates to the Offeree until all of the aforementioned compulsory payments are paid in full. |
| 19. | The Plan’s non-exclusivity |
The adoption of the Plan by the Board of Directors will not be interpreted as amending, changing or canceling any incentivizing arrangement that was approved beforehand or as restricting the Board of Director’s authority to adopt other incentivizing arrangements as it deems fit, including the granting of additional options not under the Plan, and those arrangements can apply generally or in certain cases.
For the avoidance of doubt, any previous granting of options to Offerees in the framework of their employment agreements and not in the framework of a previous option plan will not be regarded as approved incentivizing arrangements for the purposes of this section.
| 20. | Multiple agreements |
The terms of each option and share may differ from those of other options and shares that are granted under the Plan, at the same time. The Board of Directors may grant more than one option to any Offeree in the course of the Plan Period, whether in addition to or as an alternative to one or more options that were granted to that Offeree.
Exhibit 4.5
Exhibit 8.1
List of Subsidiaries
| Subsidiary Name | Country of Incorporation | Ownership Percentage | ||||||
| Canndoc Ltd. | Israel | 100 | % | |||||
| Cannolam Ltd. | Israel | 50.1 | ||||||
Exhibit 15.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Intercure Ltd.:
We consent to the use of our report dated April 18, 2021, with respect to the consolidated financial statements of Intercure Ltd., included herein and to the reference to our firm under the heading ‘Experts’ in the registration statement.
| /s/ Somekh Chaikin | |
| Somekh Chaikin | |
| Member Firm of KPMG International |
Tel Aviv, Israel
July 14, 2021
Exhibit 15.2
June 7, 2021
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Commissioners:
We have read the statements made by Intercure Ltd., which we understand will be filed with the Securities and Exchange Commission by Intercure Ltd. on or about June 7, 2021 pursuant to Item 16F of Form 20-F. We agree with the statements concerning our Firm contained therein.
Very truly yours,
| /s/ Brightman Almagor Zohar & Co. | |
| Certified Public Accountants | |
| A Firm in the Deloitte Global Network |
