Trinity Biotech PLC F-3, filed Apr 30, 2024
Trinity Biotech PLC (TRIB)
F-3
2024-04-30
View Original
Added on
October 18, 2026
Registration No. 333-
As filed with the Securities and Exchange Commission on April 30, 2024
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TRINITY BIOTECH PLC
(Exact name of registrant as specified in its charter)
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Republic of Ireland
(State or other jurisdiction of incorporation or organization) |
Not Applicable
(I.R.S. Employer Identification No.) |
IDA Business Park
Bray, Co. Wicklow
Ireland
+353 1 276 9800
(Address and telephone number of registrant's principal executive offices)
Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19711
Tel. (302) 738-6680
(Name, address and telephone number of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
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Steven J. Glusband, Esq.
Mary Brown, Esq.
Carter Ledyard & Milburn LLP
2 Wall Street
New York, New York 10005
(212) 732-3200
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David Fitzgibbon, Esq.
David Jones, Esq.
Matheson LLP
70 Sir John Rogerson's Quay
Dublin 2 Ireland
+353 1 232 2000
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Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the
following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the
Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ☐
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 7(a)(2)(B) of the Securities Act. ☐
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may determine. Pursuant to the provisions of Rule 429 under the Securities Act, the prospectus contained in this Registration Statement also
relates to the Existing F-3 Registration Statement (as defined in the Explanatory Note herein). Upon effectiveness, this Registration Statement will also act as a post-effective amendment to the Existing F-3 Registration Statement.
EXPLANATORY NOTE
Trinity Biotech plc, a public limited company organized under the laws of Ireland (the “Company”), initially filed a Registration Statement on Form F-3 (Registration No. 333-264992) with the U.S.
Securities and Exchange Commission (the “Commission”) on May 16, 2022, which was declared effective by the Commission on May 25, 2022 and amended by a post-effective amendment filed with the Commission on March 23, 2023, which was declared effective by
the Commission on March 29, 2023 (as amended, the “Existing F-3 Registration Statement”). The Existing F-3 Registration Statement related to the resale, from time to time, by Perceptive Credit Holdings III, LP (“Perceptive”), as the selling
shareholder, or its permitted assigns, of up to 0.5 million American Depositary Shares (“ADSs”) (each ADS represents 20 ‘A’ Ordinary Shares, par value $0.0109 per share) issuable upon the exercise of a warrant acquired from us on January 27, 2022 (the
“Initial Warrant”). Pursuant to Rule 429 under the Securities Act, the prospectus included herein is a combined prospectus, which relates to the resale by Perceptive and its affiliates or their permitted assigns, as the selling shareholder, of (i) up
to 0.5 million ADSs issuable upon exercise of the Initial Warrant, previously registered under the Existing F-3 Registration Statement, (ii) up to an additional 0.5 million ADSs issuable upon exercise of a new warrant acquired from us on January 30,
2024, and (iii) an additional 1.8 million ADSs acquired from us on January 30, 2024. On February 21, 2024, the Company effected a change in the ratio of the ADSs representing its Class ‘A’ Ordinary Shares from one ADS representing four Class ‘A’
Ordinary Share to one ADS representing 20 Class A Ordinary Shares, which had the same effect as a one-for-five reverse ADS split. All ADS numbers in the prospectus included in this Registration Statement reflect that ratio change.
Pursuant to Rule 429 under the Securities Act, this Registration Statement also constitutes a post-effective amendment to the Existing F-3 Registration Statement, and such post-effective amendment
shall hereafter become effective concurrently with the effectiveness of this Registration Statement in accordance with Section 8(c) of the Securities Act.
The information contained in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED APRIL 30, 2024
TRINITY BIOTECH PLC
2,800,000 American Depositary Shares
representing
56,000,000 ‘A’ Ordinary Shares
This prospectus relates to the resale, from time to time, by the selling shareholder named in this prospectus or its permitted assigns, of up to 2,800,000 American Depositary Shares
(“ADSs”) (each ADS represents 20 ‘A’ Ordinary Shares, par value $0.0109 per share), including up to (i) 1.8 million ADSs that Perceptive Credit Holdings II, LP (“Perceptive II”) acquired from us on January 30, 2024 in connection with an acquisition
pursuant to the terms of an asset and share purchase agreement among TRIB Biosensors Inc., our wholly-owned subsidiary, as purchaser, and Waveform Technologies, Inc. and the other seller parties thereto, (ii) 0.5 million ADSs that are issuable upon the
exercise, from time to time, of an outstanding warrant (the “Initial Warrant”) of Perceptive Credit Holdings III, LP, an affiliate of Perceptive II (“Perceptive III” and, together with Perceptive II, “Perceptive” or the “selling shareholder”) that
Perceptive III acquired from us on January 27, 2022, pursuant to the terms of a credit agreement and guaranty, dated December 15, 2021 (the “Original Credit Agreement”), among us and the other obligors party thereto and Perceptive III, as
administrative agent and lender, and (iii) 0.5 million ADSs that are issuable upon the exercise, from time to time, of an outstanding warrant (the “New Warrant” and, together with the Initial Warrant, the “Warrants”) that Perceptive III acquired from
us on January 30, 2024, in connection with the second amendment and restatement of the Original Credit Agreement. The Warrants have an exercise price of $2.20 per ADS ($0.11 per ‘A’ Ordinary Share), for an aggregate exercise price of up to
$2,200,000. The Initial Warrant expires on January 27, 2029 and the New Warrant expires on January 30, 2031. The ADSs are evidenced by American Depositary Receipts, or ADRs.
Our ADSs are listed on The NASDAQ Global Select Market (“Nasdaq”) under the symbol “TRIB.” On April 29, 2024, the closing price of an ADS on The NASDAQ Global Select Market was $1.78. Perceptive may
offer and sell any of the ADSs from time to time at fixed prices, at market prices or at negotiated prices, and may engage a broker, dealer or underwriter to sell the ADSs. For additional information on the possible methods of sale that may be used
by Perceptive, you should refer to the section entitled “Plan of Distribution” elsewhere in this prospectus. We will not receive any proceeds from the sale of any ADSs by Perceptive. We do not know when or in what amount Perceptive may offer the ADSs
for sale. Perceptive may sell any, all or none of the ADSs offered by this prospectus.
INVESTING IN THE ADSs INVOLVES A HIGH DEGREE OF RISK. BEFORE BUYING ANY SECURITIES, YOU SHOULD CAREFULLY CONSIDER THE RISK FACTORS DESCRIBED IN
“RISK FACTORS” BEGINNING ON PAGE 5 OF THIS PROSPECTUS AND UNDER SIMILAR HEADINGS IN THE OTHER DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION (THE “COMMISSION”) NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED
IF THIS PROSPECTUS ARE TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is , 2024.
TABLE OF CONTENTS
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Unless expressly stated otherwise, in this prospectus, references to “we”, “us”, “Trinity Biotech” or the “Group” shall mean Trinity Biotech plc and its world-wide subsidiaries,
collectively. References to the “Company” shall mean Trinity Biotech plc. All references to “dollars” or “$” in this prospectus are to U.S. dollars, and all references to “Euro” or “€” are to European Union Euro.
You should read this document together with the additional information described under the headings “Where You Can Find More Information” and “Incorporation of
Certain Information by Reference” in this prospectus. We have not authorized any dealer, salesperson or other person to give any information or to make any representation and you should not rely upon any information or representation not contained or
incorporated by reference in this prospectus. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy ADSs, nor does this prospectus constitute an offer to sell or the solicitation of an offer to buy ADSs in any
jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information contained in this prospectus is accurate on any date subsequent to the date set forth on the front of
the document or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus is delivered or ADS is sold on a later date.
We further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference into the
accompanying prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or
covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state of
our affairs.
This prospectus is not intended to be and is not a prospectus for purposes of: (i) Regulation (EU) 2017/1129 of the European Parliament and of the Council or the European Union
(Prospectus) Regulations of Ireland 2019; or (ii) Regulation (EU) 2017/1129 as it forms part of United Kingdom domestic law by virtue of the European Union (Withdrawal) Act 2018 of the United Kingdom, as amended by the Prospectus (Amendment etc.) (EU
Exit) Regulations 2019 of the United Kingdom, or the UK Prospectus Regulation. No offer of shares to the public is made, or will be made, that requires the publication of a prospectus pursuant to European prospectus law or the UK Prospectus Regulation.
This document has been prepared on the basis that any offer of shares in any relevant European Economic Area member state or the United Kingdom will be made pursuant to an exemption under European prospectus law and the UK Prospectus Regulation from
the requirement to publish a prospectus for offers of shares and does not constitute an offer or solicitation to anyone to purchase shares in any jurisdiction in which such an offer or solicitation is not authorized nor to any person to whom it is
unlawful to make such an offer or solicitation. This document has not been reviewed or approved by the Central Bank of Ireland nor by any other competent or supervisory authority of any other member state of the European Economic Area or the United
Kingdom for the purposes of the EU Prospectus Regulation, or the UK Prospectus Regulation, as applicable. Any representation to the contrary is a criminal offense.
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Some of the statements contained in this prospectus and the documents incorporated by reference are forward-looking statements. Forward-looking statements involve risks and
uncertainties, such as statements about our plans, objectives, expectations, assumptions or future events. In some cases, you can identify forward-looking statements by terminology such as “anticipate,” “estimate,” “plan,” “project,” “continuing,”
“ongoing,” “expect,” “we believe,” “we intend,” “may,” “should,” “will,” “could” and similar expressions denoting uncertainty or an action that may, will or is expected to occur in the future. These statements involve estimates, assumptions, known and
unknown risks, uncertainties and other factors that could cause actual results to differ materially from any future results, performances or achievements expressed or implied by the forward-looking statements. Examples of forward-looking statements
include, but are not limited to, statements about:
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the development of future products;
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the potential attributes and benefit of our products and their competitive position;
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our ability to successfully commercialize, or enter into strategic relationships with third parties to commercialize, our products;
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our estimates regarding expenses, future revenues, capital requirements and our need for additional financing;
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statements of our plans and objectives;
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our ability to acquire or in-license new product candidates;
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potential strategic relationships;
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the duration of our patent portfolio; and
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statements regarding the capabilities of our business operations;
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statements of expected future economic performance;
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statements regarding competition in our market; and
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assumptions underlying statements regarding us or our business.
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Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based only on our current beliefs, expectations and assumptions
regarding the future of our business, future plans and strategies, projections, anticipated events and trends, the economy and other future conditions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties,
risks and changes in circumstances that are difficult to predict and many of which are outside of our control. Our actual results and financial condition may differ materially from those indicated in the forward-looking statements. Therefore, you
should not rely on any of these forward-looking statements. Important factors that could cause our actual results and financial condition to differ materially from those indicated in the forward-looking statements include, among others, the following:
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our substantial indebtedness, which could impair our flexibility and access to capital and adversely affect our financial position;
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our ability to generate or raise sufficient funds to repay our debt as it becomes due and to continue as a going concern;
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Our continued listing on the Nasdaq Global Select Market:
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pandemics or other public health emergencies, including ongoing effects of the COVID-19 pandemic;
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the occurrence of hostilities and political instability, including hostilities between Russia and Ukraine and between Hamas and Israel, and resulting volatility and other effects on global economic conditions;
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changes in customer demand;
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our ability to successfully develop and commercialize new products, including our new biosensor related products, including our continuous glucose monitoring (“CGM”) product;
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recalls of our products or liability claims in connection with our products and services and the cost and reputational harm associated with such recalls or claims and with any voluntary corrective actions or regulatory agency enforcement
actions;
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delays or failures in our clinical trials and failure to maintain regulatory approvals and clearances to manufacture, market and distribute our products;
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interruptions in production at our principal manufacturing facilities, our third-party manufacturing facilities or our supplier;
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the extent to which we are successful in gaining new long-term relationships with customers or retaining existing ones;
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developments and changes in laws and regulations, including increased regulation of our industry through legislative action and revised rules and standards;
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security breaches, cybersecurity attacks and other significant disruptions;
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natural events such as severe weather, fires, floods and earthquakes or man-made or other disruptions of our business and facilities;
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strategic actions, including acquisitions and dispositions and our success in integrating acquired businesses; and
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our ability to obtain and protect rights to the intellectual property necessary for the conduct of our business and the potential costs of enforcing or defending those rights.
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The ultimate correctness of these forward-looking statements depends upon a number of known and unknown risks and events. We discuss our known material risks in the section entitled
“Risk Factors” on page 5 of this prospectus and on page 3 in our annual report on Form 20-F for the year ended December 31, 2023 incorporated by reference herein. Many factors could cause our actual results to differ materially from the
forward-looking statements. 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.
The forward-looking statements speak only as of the date on which they are made, and, except as required by law, 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.
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This summary highlights selected information contained elsewhere or incorporated by reference in this prospectus. The summary does not contain all the information
that you should consider before investing in our ADSs. You should read the entire prospectus carefully, including “Risk Factors” contained in this prospectus and the documents incorporated by reference in this prospectus, before making an investment
decision. Unless otherwise indicated herein, the terms “Trinity Biotech,” the “Company,” “we,” “us” or “our” refer to Trinity Biotech plc.
We and our subsidiaries develop, acquire, manufacture and market medical diagnostic products and services for the clinical laboratory and point-of-care segments
of the diagnostic market. These products and services are used to detect and support the management of autoimmune, infectious and sexually transmitted diseases, diabetes and disorders of the liver and intestine. We have recently entered into the
biosensor industry, with the acquisition (the “Waveform Acquisition”) of the biosensor assets of Waveform Technologies Inc. (“Waveform”) and intend to develop a range of biosensor devices and related services, starting with a continuous glucose
monitoring (“CGM”) product.
For a full and comprehensive description of our business, markets and product lines, see our most recent Annual Report on Form 20-F and any updates in our Reports of Foreign Private
Issuer on Form 6-K, to the extent that they are incorporated herein by reference.
Recent Developments
CGM Business and Credit Agreement Amendment
On January 30, 2024, we entered into a definitive agreement to acquire the biosensor assets, including the CGM assets, of privately held
Waveform for $12.5 million in cash and the 1.8 million ADSs (as adjusted to give effect to the ADS Ratio Change, as defined below) issued to Perceptive, in its capacity as a lender to Waveform, plus contingent consideration.
In connection with the Waveform Acquisition, we amended our Original Credit Agreement with Perceptive to, among other things, fund
the Waveform Acquisition, provide for $9.5 million of additional funding for general corporate purposes, reduce the interest rates and early repayment penalty and provide for the issuance of the New Warrant to Perceptive. The credit
agreement amendment also provided for a delayed draw term loan of up to an additional $6.5 million, which the Company drew down in full on April 22, 2024 (the “Delayed Draw Term Loan Borrowing”).
On January 31, 2024, we also announced that we had entered into a non-binding Letter of Intent with Bayer for a joint partnership to launch a CGM
biosensor device into China and India.
ADS Ratio Change
On February 23, 2023, we effected a ratio change of our ADSs from one ADS representing four ‘A’ Ordinary Shares to one ADS representing 20 ‘A’ Ordinary Shares (the “ADS Ratio
Change”). For existing ADS holders, the ADS Ratio Change had the same effect as a one-for-five reverse ADS split.
Corporate Information
We were incorporated as a private limited company registered in Ireland in January 1992 and subsequently re-registered as a public limited company (“plc”) in July 1992. The Company
commenced operations in 1992 and, in October 1992, completed an initial public offering of our securities in the United States. Our principal offices are located at IDA Business Park, Bray, Co. Wicklow, Ireland and our telephone number is +353 1276
9800. Our North American headquarters is based at 2823 Girts Rd., Jamestown, NY 14701, USA. The Company’s website is www.trinitybiotech.com. The information in our website is not incorporated by reference herein.
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ADSs offered by the
selling shareholder
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2,800,000 ADSs (each ADS represents 20 ‘A’ Ordinary Shares, par value $0.0109 per share). The offered ADSs are evidenced by ADRs.
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‘A’ Ordinary Shares outstanding as of April 30, 2024
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189,310,282 ‘A’ Ordinary Shares (which excludes 51,014,672 ‘A’ Ordinary Shares issuable upon the exercise of options at exercise prices that range from US$0.12-US$1.34 per share, 21,200,000 ‘A’
Ordinary Shares represented by ADSs issuable upon the exercise of outstanding warrants, and 24,691,358 ‘A’ Ordinary Shares represented by ADSs issuable upon conversion of the $20 million convertible note (the “MiCo Convertible Note”) held by
MiCo IDV Holdings, LLC (“MiCo”), with an ADS conversion price of $16.20 per ADS).
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Use of proceeds
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We will not receive any proceeds from the sale of the ‘ADSs offered hereby except that we may receive up to $2,200,000 upon the exercise of the Warrants.
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NASDAQ Capital Market symbol
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“TRIB”
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Risk Factors
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Prospective investors should carefully consider the Risk Factors beginning on Page 5 and under similar headings in the other documents that are incorporated by reference into this prospectus
for a discussion of certain factors that should be considered before buying the ADSs offered hereby.
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Investing in our securities involves significant risks. Please see the risk factors under the heading “Risk Factors” in our most recent Annual Report on Form 20-F
on file with the Commission, as revised or supplemented by our reports subsequently filed after the date hereof with the Commission and incorporated by reference in this prospectus. Before making an investment decision, you should carefully consider
these risks as well as other information we include or incorporate by reference in this prospectus. The risks and uncertainties we have described are not the only ones facing our company. Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also affect our business operations. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities. The discussion of risks includes or refers to
forward-looking statements; you should read the explanation of the qualifications and limitations on such forward-looking statements discussed elsewhere in this.
Risks Related to Ownership of our ADSs
Our failure to meet the continued listing requirements of Nasdaq could result in a de-listing of our ADSs and penny stock
trading.
There can be no assurance that we will be able to continue to meet all of the criteria necessary for Nasdaq to allow us to remain listed. If
we fail to satisfy the applicable continued listing requirement and be in non-compliance after notice and the applicable grace period ends, Nasdaq may commence delisting procedures against our Company (during which we may have additional time of up to
six months to appeal and correct our non-compliance). On April 19, 2023, we received a deficiency letter from the Listing Qualifications Department of Nasdaq, notifying us that for the preceding 30 consecutive business days, our ADSs did not maintain a
minimum closing bid price of $1.00 (the “Minimum Bid Price Requirement”) per ADS, as required by Nasdaq Listing Rule 5450(a)(1). To satisfy the Minimum Bid Price Requirement, the Company effected the ADS Ratio Change on February 23, 2024, pursuant to
which the ADS to ‘A’ Ordinary Share ratio changed from one ADS representing four ‘A’ Ordinary Shares to one ADS representing 20 ‘A’ Ordinary Shares. For existing ADS holders, the ADS Ratio Change had the same effect as a one-for-five reverse ADS split.
On March 8, 2024, the Listing Qualifications Department of Nasdaq notified us that they determined that we regained compliance with Listing Rule 5450(a)(1). However, there can be no assurance that our ADSs will continue to meet the Minimum Bid Price
Requirement.
On November 21, 2023, the Company received a deficiency letter from the Listing Qualifications Department of Nasdaq notifying us that the
Company was not in compliance with the minimum market value of publicly held shares (“MVPHS”) requirement of the Nasdaq Listing Rules applicable to companies listing on the Nasdaq Global Select Market. For continued listing on the Nasdaq Global Select
Market, registrants are required to maintain a minimum MVPHS of US$15 million. A failure to meet the minimum MVPHS requirement exists if the deficiency continues for a period of 30 consecutive business days. In accordance with Nasdaq Listing Rules, the
Company has 180 calendar days from the date of the deficiency notice, or until May 20, 2024, to regain compliance with the minimum MVPHS requirement. To regain compliance, the Company's MVPHS must exceed US$15 million for a minimum of ten consecutive
business days. If the Company does not regain compliance with the minimum MVPHS requirement by May 20, 2024, Nasdaq will provide written notification to the Company that the ADSs are subject to delisting. At that time, the Company may appeal the
relevant delisting determination to a hearings panel pursuant to the procedures set forth in the applicable Nasdaq listing rules; however, there can be no assurance that the Company will satisfy the minimum MVPHS requirement or that any such appeal
would be successful.
If our ADSs are ultimately delisted from Nasdaq and we are unable to successfully transfer the listing of our ADSs to The Nasdaq Capital Market, our ADSs would likely then trade only in the
over-the-counter market and the market liquidity of our ADSs could be adversely affected and their market price could decrease. If our ADSs were to trade on the over-the-counter market, selling our ADSs could be more difficult because smaller
quantities of shares would likely be bought and sold, transactions could be delayed, and we could face significant material adverse consequences, including: a limited availability of market quotations for our securities; reduced liquidity with respect
to our securities; a determination that our shares are a “penny stock,” which will require brokers trading in our securities to adhere to more stringent rules, possibly resulting in a reduced level of trading activity in the secondary trading market
for our securities; a reduced amount of news and analyst coverage for our Company; and a decreased ability to issue additional securities or obtain additional financing in the future. These factors could result in lower prices and larger spreads in the
bid and ask prices for our ADSs and would substantially impair our ability to raise additional funds and could result in a loss of institutional investor interest and fewer development opportunities for us.
Risks Related to the Offering
Sales of ADSs held by Perceptive and the additional ADSs issuable upon exercise of the Warrants may cause the market price of our ADSs to decline.
Perceptive holds 1.8 million ADSs; and Perceptive’s Warrants entitle it to purchase up to an additional 1.0 million ADSs, representing, in the aggregate, 56 million of our ‘A’
Ordinary Shares. The sale of such ADSs, or the perception that such sales could occur, may cause the market price of our ADSs to decline or become more volatile. In addition, the fact that Perceptive can sell substantial amounts of ADSs in the public
market, whether or not sales have occurred or are occurring, could make it more difficult for the Company to raise additional financing through the sale of equity or equity-related securities in the future at a time and price that it deems reasonable
or appropriate.
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We will not receive the proceeds from the resale of the ADSs by Perceptive. We may receive up to an aggregate of $2,200,000 from the exercise of the Warrants, assuming the exercise
in full of the Warrants. Any proceeds from the exercise of the Warrants will be used for working capital and general corporate purposes.
The following table sets forth our capitalization and indebtedness as of December 31, 2023 as derived from our financial statements, which are prepared in
accordance with International Financial Reporting Standards, as issued by the International Accounting Standards Board. The information in this table should be read in conjunction with the financial statements and notes thereto and other financial
information incorporated by reference into this prospectus and any prospectus supplement.
The table below presents our capitalization and indebtedness on an actual basis and on an as-adjusted basis to give effect to (A) the closing on
January 30, 2024 of (i) the Waveform Acquisition for a purchase price of $12.5 million in cash and 1.8 million ADSs (after giving effect to the ADS Ratio Change) and excluding certain contingent consideration, and (ii) the amendment and restatement
of our Original Credit Agreement, for, among other things, an additional $22.0 million of term loan borrowings, and related fees and expenses, and (B) the Delayed Draw Term Loan Borrowing, in each case as if they had occurred on December 31, 2023.
The table below, however, does not give effect to:
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the impact of the requirement under IFRS 9, IFRS 13 and IAS 32 to account for the Warrants as derivative financial liabilities of the Company;
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the impact of the requirement under IFRS 9, IFRS 13 and IAS 32 to account for the option to repay our term loan with Perceptive (the “Term Loan”) early as a derivative financial asset of the Company;
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the impact of the requirement under IFRS 9 to offset loan origination costs against the Term Loan balance and to accrete interest on the Term Loan balance; or
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the treatment of the MiCo Convertible Note under IFRS 9, IFRS 13 and IAS 32 as a compound financial instrument with a debt and equity element and to accrete interest on the debt element of the MiCo Convertible Note.
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The IFRS accounting for the above transactions is complex and may result in significant further adjustments.
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As of December 31, 2023
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Actual
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As Adjusted(1)
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Cash
|
3,691
|
19,691
|
||||||
|
Debt Outstanding:
|
||||||||
|
Exchangeable Notes (at nominal amount)
|
$
|
210
|
$
|
210
|
||||
|
Term Loan (at nominal amount)
|
41,700
|
$
|
70,200
|
|||||
|
Convertible Note (at nominal amount)
|
20,000
|
$
|
20,000
|
|||||
|
|
61,910
|
90,410
|
||||||
|
Equity:
|
||||||||
|
‘A’ Ordinary Shares, par value $0.0109 per share
|
$
|
1,972
|
$
|
2,338
|
||||
|
Share Premium
|
$
|
46,619
|
$
|
49,943
|
||||
|
Treasury shares
|
$
|
(24,922
|
)
|
$
|
(24,922
|
)
|
||
|
Reserves
|
$
|
(5,683
|
)
|
$
|
(5,683
|
)
|
||
|
Accumulated deficit
|
$
|
(48,644
|
)
|
$
|
(48,644
|
)
|
||
|
Total shareholders’ equity
|
$
|
(30,658
|
)
|
$
|
(26,968
|
)
|
||
|
Total Capitalization
|
$
|
31,252
|
$
|
63,442
|
||||
| (1) |
The number of ‘A’ Ordinary Shares issued and outstanding excludes: 51,014,672 ‘A’ Ordinary Shares issuable upon exercise of outstanding stock options at exercise prices that range from US$0.12-US$1.34 per share; 21,200,000 ‘A’ Ordinary
Shares represented by ADSs issuable upon the exercise of outstanding warrants; 24,691,358 ‘A’ Ordinary Shares represented by ADSs issuable upon conversion of the MiCo Convertible Note.
|
6
We are registering the resale of 2.8 million ADSs (representing 56 million ‘A’ Ordinary Shares), including 1.0 million ADSs issuable upon the exercise of the Warrants pursuant to the
registration rights provisions of the Warrants. Perceptive is an investment manager with an expertise in healthcare. The term “selling shareholder” includes the entities identified in the table below (as such table may be amended from time to time by
means of an amendment to the registration statement of which this prospectus forms a part or by a supplement to this prospectus) and any permitted assignees of the Warrants from Perceptive. Except as described herein or in the documents incorporated by
reference herein, we did not have any material relationship with Perceptive prior to our credit agreement with Perceptive.
Our registration of the resale of the securities covered by this prospectus does not necessarily mean that the selling shareholder will sell any or all of the securities.
The information in the table below is based upon information provided by the selling shareholder.
|
Selling Shareholder
|
|
Ordinary Shares Beneficially
Owned Prior to Offering/ Percentage of Class |
|
|
Ordinary Shares
Being Offered
|
|
|
Ordinary Shares Beneficially Owned Upon Completion of Offering /
Percentage of Class |
||
|
Perceptive(1)
|
26.8% (2)
|
56 million ‘A’ Ordinary Shares (represented by 2.8 million ADSs) (3)
|
-- %(4)
|
|||||||
| (1) |
Each of Perceptive Credit Holdings II, LP and Perceptive Credit Holdings III, LP is a Delaware limited partnership and their address is 51 Astor Place, 10th Floor, New York, New York 10003.
|
| (2) |
Represents 56 million ‘A’ Ordinary Shares, including (a) 36 million ‘A’ Ordinary Shares represented by 1.8 million ADSs of the selling shareholder and (b) 20 million ‘A’ Ordinary Shares represented by 1.0 million ADSs that may be acquired
upon full exercise of the Warrants of the selling shareholder.
|
| (3) |
Assuming full exercise of the Warrants.
|
| (4) |
Assuming all ADSs representing ‘A’ Ordinary Shares being registered for resale hereunder are sold.
|
7
The selling shareholder, may, from time to time, sell, transfer or otherwise dispose of any or all of its ADSs or interests therein on any stock exchange, market or trading facility
on which the ADSs are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or
at negotiated prices.
The selling shareholder may use any one or more of the following methods when disposing of shares or interests therein:
| • |
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
|
| • |
block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction;
|
| • |
purchases by a broker-dealer as principal and resale by the broker-dealer for its own account;
|
| • |
an exchange distribution in accordance with the rules of the applicable exchange;
|
| • |
privately negotiated transactions;
|
| • |
short sales effected after the date the registration statement of which this prospectus is a part is declared effective by the Commission;
|
| • |
through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
|
| • |
through agreements between broker-dealers and the selling shareholder to sell a specified number of such shares at a stipulated price per share;
|
| • |
a combination of any such methods of sale; and
|
| • |
any other method permitted by applicable law.
|
In connection with the sale of our ADSs or interests therein, the selling shareholder may enter into hedging transactions with broker-dealers or other financial institutions, which
may in turn engage in short sales of the ADSs or interests therein in the course of hedging the positions they assume. The selling shareholder may also sell ADSs or interests therein short and deliver these securities to close out their short
positions, or loan or pledge the ADSs or interests therein to broker-dealers that in turn may sell these securities. The selling shareholder may also enter into options or other transactions with broker-dealers or other financial institutions or the
creation of one or more derivative securities which require the delivery to each such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant
to this prospectus (as supplemented or amended to reflect such transaction).
The aggregate proceeds to the selling shareholder from the sale of the ADSs or interests therein offered by the selling shareholder will be the purchase price of such securities less
discounts or commissions, if any. The selling shareholder reserves the right to accept and, together with its agents from time to time, to reject, in whole or in part, any proposed purchase of ‘ADSs or interests therein to be made directly or through
agents. We will not receive any of the proceeds from this offering.
The selling shareholder also may resell all or a portion of the ADS or interests therein in open market transactions in reliance upon Rule 144 under the Securities Act of 1933,
provided that they meet the criteria and conform to the requirements of that rule.
The selling shareholder and any underwriters, broker-dealers or agents that participate in the sale of the ADSs or interests therein may be “underwriters” within the meaning of
Section 2(a)(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the shares may be underwriting discounts and commissions under the Securities Act. If the selling shareholder is an “underwriter”
within the meaning of Section 2(a)(11) of the Securities Act, it will be subject to the prospectus delivery requirements of the Securities Act.
8
To the extent required, the ADSs or interest therein to be sold, the name of the selling shareholder, the respective purchase prices and public offering prices, the names of any
agents, dealer or underwriter, and any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that
includes this prospectus.
In order to comply with the securities laws of some states, if applicable, the ADSs or interests therein may be sold in those jurisdictions only through registered or licensed
brokers or dealers. In addition, in some states the ADSs or interests therein may not be sold unless it has been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with.
We have advised the selling shareholder that the anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of shares in the market and to the activities of
the selling shareholder and its affiliates. In addition, to the extent applicable we will make copies of this prospectus (as it may be supplemented or amended from time to time) available to the selling shareholder for the purpose of satisfying the
prospectus delivery requirements of the Securities Act. The selling shareholder may indemnify any broker-dealer that participates in transactions involving the sale of the shares against certain liabilities, including liabilities arising under the
Securities Act.
We have agreed with the selling shareholder to keep the registration statement of which this prospectus constitutes a part effective until the earlier of (1) such time as all of the
shares covered by this prospectus have been disposed of pursuant to and in accordance with the registration statement or have been withdrawn.
9
The primary trading market for our ADSs is the NASDAQ Global Select Market, where our ADSs are listed and traded under the symbol “TRIB”. The ratio of ADSs to underlying ‘A’ Ordinary
Shares is 1 ADS : 20 ‘A’ Ordinary Shares. The Bank of New York Mellon is the depositary for the ADSs pursuant to the deposit agreement filed with the Commission on January 15, 2004 as an exhibit to our Form F-6, registration no. 333-111946.
Descriptions of our ‘A’ Ordinary Shares and ADSs can be found in our Annual Report on Form 20-F for the year ended December 31, 2023, which descriptions are incorporated herein by
reference
A description of taxation affecting our ADSs can be found in our Annual Report on Form 20-F for the year ended December 31, 2023, which description is incorporated herein by reference.
Our authorized representative in the United States for this offering as required pursuant to Section 6(a) of the Securities Act is Puglisi & Associates; 850 Library Avenue, Suite
204; Newark, Delaware 19711. We have agreed to indemnify the authorized representative against liabilities under the Securities Act of 1933.
The following is a statement of expenses in connection with the distribution of the securities registered. All amounts shown are estimates except the Commission registration fee.
The estimates do not include expenses related to offerings of particular securities. Each prospectus supplement describing an offering of securities will reflect the estimated expenses related to the offering of securities under that prospectus
supplement.
|
Commission registration fee
|
$ |
754.65
|
||
|
EDGAR and printing fees
|
$
|
1,000
|
||
|
Legal fees and expenses
|
$
|
10,000
|
||
|
Accounting fees and expenses
|
$
|
5,500
|
||
|
Miscellaneous
|
$
|
2,000
|
||
|
Total
|
$
|
19,254.65
|
Except as otherwise described in our Annual Report on Form 20-F for the fiscal year ended December 31, 2023, and in our Reports of Foreign Private Issuer on Form 6-K filed under the
Exchange Act and incorporated by reference or disclosed herein, no reportable material changes have occurred since December 31, 2023.
Carter Ledyard & Milburn LLP, New York, New York, will be passing upon matters of United States law for us with respect to securities offered by this prospectus. The validity of
the ‘A’ Ordinary Shares represented by ADSs offered hereby will be passed upon for us by Matheson LLP, Dublin, Ireland.
The consolidated financial statements incorporated in this prospectus by reference to the Annual Report on Form 20-F for the year ended December
31, 2023 and the Statement of Assets Acquired and Liabilities Assumed with respect to the asset acquisition from Waveform Technologies, Inc. incorporated in this prospectus by reference to the Report on Form 6-K filed with the SEC on April 30, 2024
have been so incorporated in reliance on the reports of Grant Thornton, an independent registered public accounting firm, upon the authority of said firm as experts in auditing and accounting.
10
This prospectus is a part of a registration statement on Form F-3 that we filed with the Commission under the Securities Act. We refer you to this registration statement for further
information about us and the securities offered hereby.
We file annual and special reports and other information with the Commission (Commission File Number 000-22320). These filings contain important information that does not appear in
this prospectus. Our SEC filings are also available on the Commission Internet site at www.sec.gov, which contains periodic reports and other information regarding issuers that file electronically.
We file annual and special reports and other information with the Commission (File Number 000-22320). These filings contain important information which does not appear in this
prospectus. The Commission allows us to “incorporate by reference” information into this prospectus, which means that we can disclose important information to you by referring you to other documents which we have filed or will file with the
Commission. We are incorporating by reference in this prospectus the documents listed below and all amendments or supplements we may file to such documents, as well as any future filings we may make with the Commission on Form 20-F under the Exchange
Act before the time that all of the securities offered by this prospectus have been sold or de-registered.
|
|
●
|
Our Annual Report on Form 20-F for the fiscal year ended December 31, 2023, as filed with the
Commission on April 30, 2024;
|
|
|
●
|
|
|
|
●
|
The description of our ADSs contained in our Form 20-F for the fiscal year ended December 31, 2023
filed with the Commission on April 30, 2024.
|
In addition, we may incorporate by reference into this prospectus our reports on Form 6-K filed after the date of this prospectus (and before the time that all of the securities
offered by this prospectus have been sold or de-registered) if we identify in the report that it is being incorporated by reference in this prospectus.
Certain statements in and portions of this prospectus update and replace information in the above listed documents incorporated by reference. Likewise, statements in or portions of
a future document incorporated by reference in this prospectus may update and replace statements in and portions of this prospectus or the above listed documents.
We will provide you without charge, upon your written or oral request, a copy of any of the documents incorporated by reference in this prospectus, other than exhibits to such
documents which are not specifically incorporated by reference into such documents. Please direct your written or telephone requests to Trinity Biotech plc, IDA Business Park, Bray, Co. Wicklow, Ireland, Attn: Corporate Secretary, telephone number
+(353) 1 276 9800. You may also obtain information about us by visiting our website at www.trinitybiotech.com. Information contained in our website is not part of this prospectus.
You should rely only on the information contained or incorporated in this prospectus. We have not authorized anyone else to provide you with different information. You should not
rely on any other representations. Our affairs may change after this prospectus is distributed. You should not assume that the information in this prospectus is accurate as of any date other than the date on the front of those documents. You should
read all information supplementing this prospectus.
We are an Irish company and are a “foreign private issuer” as defined in Rule 3b-4 under the Exchange Act. As a result, (i) our proxy solicitations are not subject to the disclosure
and procedural requirements of Regulation 14A under the Exchange Act, (ii) transactions in our equity securities by our officers, directors and principal shareholders are exempt from Section 16 of the Exchange Act; and (iii) we are not required under
the Exchange Act to file periodic reports and financial statements as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act.
11
Service of process upon us and upon our directors and officers and the Irish experts named in this prospectus, most of whom reside outside the United States, may be difficult to
obtain within the United States. Furthermore, because substantially all of our assets and substantially all of our directors and officers are located outside the United States, any judgment obtained in the United States against us or any of our
directors and officers may not be collectible within the United States.
We have been advised by counsel that the United States currently does not have a treaty with Ireland providing for the reciprocal recognition and enforcement of judgments in civil
and commercial matters. Therefore, a final judgment for the payment of money rendered by any U.S. federal or state court based on civil liability, whether or not based solely on U.S. federal or state securities laws, would not automatically be
recognized or enforceable in Ireland.
A judgment of the U.S. courts will be enforced by the Irish courts, by way of separate action in Ireland, if the following general requirements are met: (i) the debt is for a
liquidated or defined sum; (ii) the procedural rules of the U.S. court must have been observed and the U.S. court must have had jurisdiction in relation to the particular defendant according to Irish conflict of law rules (the submission to
jurisdiction by the defendant would satisfy this rule); and (iii) the judgment must be final and conclusive and the decree must be final and unalterable in the court which pronounces it. A judgment can be final and conclusive even if it is subject to
appeal or even if an appeal is pending. If the effect of lodging an appeal under the applicable law is to stay execution of the judgment, it is possible that, in the meantime, the judgment should not be actionable in Ireland. It remains to be
determined whether final judgment given in default of appearance is final and conclusive. However, the Irish courts may refuse to enforce a judgment of the U.S. courts which meets the above requirements for one of the following reasons: (a) if the
judgment is not for a debt or a definite sum of money; (b) if the judgment was obtained or alleged to have been obtained by fraud; (c) if the process and decision of the U.S. Courts were contrary to natural or constitutional justice under the laws of
Ireland and if the enforcement of the judgment in Ireland would be contrary to natural or constitutional justice; (d) if the judgment is contrary to Irish public policy or involves certain United States laws which will not be enforced in Ireland or
constitute the enforcement of a judgment of a penal or taxation nature; (e) if jurisdiction cannot be obtained by the Irish courts over the judgment debtors in the enforcement proceedings by personal service in Ireland or outside Ireland under Order 11
of the Irish Superior Courts Rules; (f) there is no practical benefit to the party in whose favor the foreign judgment is made in seeking to have that judgment enforced in Ireland, or (g) if the judgment is not consistent with a judgment of an Irish
court in respect of the same matter.
We have irrevocably appointed Puglisi & Associates as our agent to receive service of process in any action against us in the state and federal courts sitting in the City of New
York, Borough of Manhattan arising out of this offering or any purchase or sale of securities in connection therewith. We have not given consent for this agent to accept service of process in connection with any other claim.
12
TRINITY BIOTECH PLC
2,800,000 American Depositary Shares
representing
56,000,000 ‘A’ Ordinary Shares
PROSPECTUS
, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers.
The registrant’s constitution provides that every director and other officer of the registrant (other than an auditor) shall be indemnified out of the assets of the registrant
against any liability incurred by him in defending any proceedings, whether civil or criminal, in relation to his acts while acting in such office in which judgment is given in his favor or in which he is acquitted or in connection with any application
in which relief is granted to him by the court under the Irish Companies Act 2014.
Item 9. Exhibits.
The index to exhibits appears below on the page immediately following the signature pages of this Registration Statement.
Item 10. Undertakings.
(a) The undersigned registrant hereby undertakes:
| (1) |
to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
|
| (i) |
to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the “Securities Act”);
|
| (ii) |
to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in
the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the ‘‘Calculation of Registration Fee’’ table in the effective registration statement; and
|
| (iii) |
to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in this Registration Statement;
|
provided, however, that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) that are incorporated by reference in this
Registration Statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the Registration Statement.
| (2) |
that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
|
| (3) |
to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
|
II - 1
| (4) |
to file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Securities Act of 1933 need not be furnished, provided, that the registrant includes in the prospectus, by means of a post-effective amendment,
financial statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing,
a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933 or Rule 3-19 of Regulation S-X if such financial statements and information are contained in
periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Form F-3.
|
| (5) |
that, for the purpose of determining any liability under the Securities Act to any purchaser:
|
| (i) |
each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be a part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
|
| (ii) |
each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the
date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a
new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
|
| (6) |
that, for the purpose of determining liability of a registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
|
| (i) |
any preliminary prospectus or prospectus of the undersigned registrant to the offering required to be filed pursuant to Rule 424;
|
| (ii) |
any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by an undersigned registrant;
|
| (iii) |
the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
|
| (iv) |
any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
|
| (b) |
The registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
| (c) |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions referred to in Item 8, or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
|
II - 2
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it complies with all of the requirements for filing on
Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Dublin, Ireland, on April 30, 2024.
|
|
TRINITY BIOTECH PLC
|
|
|
|
|
|
|
|
By:
|
/s/ John Gillard
|
|
|
|
John Gillard
Chief Executive Officer
|
II - 3
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Ronan O’Caoimh and John Gillard as his true and lawful
attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement
and any and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below on April 30, 2024 by or on behalf of the following persons in the capacities
indicated.
|
Signature
|
Title
|
|
| /s/ John Gillard |
Chief Executive Officer (Principal Executive Officer), Company Secretary and Director
|
|
|
John Gillard
|
||
| /s/ Desmond Fitzgerald |
Interim Chief Financial Officer
|
|
|
Desmond Fitzgerald
|
||
| /s/ Simon Dunne |
Chief Accounting Officer
|
|
|
Simon Dunne
|
||
| /s/ James Walsh | Director | |
| James Walsh | ||
| /s/ Ronan O’Caoimh | Director | |
| Ronan O’Caoimh |
|
|
| /s/ Thomas Lindsay | Director | |
| Thomas Lindsay | ||
| /s/ Andrew Omidvar | Director | |
| Andrew Omidvar |
|
II - 4
SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of the Registrant, has signed this
registration statement on April 30, 2024.
Puglisi & Associates
| By: | /s/ Donald J. Puglisi | |
| Name: |
Donald J. Puglisi | |
| Title: |
Managing Director |
II - 5
|
Exhibit No.
|
Description of Exhibit
|
|
|
|
| 4.5 |
|
II - 6
EXHIBIT 5.1
|
Trinity Biotech plc
IDA Business Park
Bray
Co. Wicklow
Ireland
Private and Confidential
|
|
Our ref
|
30 April 2024
|
|
|
DJ/TB 4031/02
|
Dear Sirs
Trinity Biotech Public Limited Company (the "Company" or “Trinity”)
| 1 |
Capacity and Basis
|
| 1.1 |
We have acted as Irish counsel to the Company in connection with the Registration Statement on Form F-3 (the “Registration Statement”) to be filed by the
Company with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”)
on or around the date hereof. The Registration Statement relates to the resale, from time to time, by the selling shareholder named in this Registration Statement or its permitted assigns, of up to 2,800,000 American Depositary Shares (“ADSs”) (each ADS represents 20 A Ordinary Shares, par value $0.0109 per share (an “Ordinary Share”)), including up to (i) 1.8 million ADSs that Perceptive Credit
Holdings II, LP (“Perceptive II”) acquired from the Company on January 30, 2024 in connection with an acquisition pursuant to the terms of an asset and share purchase agreement (the “SPA”) among TRIB Biosensors Inc., a wholly-owned subsidiary of the Company, as purchaser, and Waveform Technologies, Inc. and the other seller parties thereto (the Ordinary Shares underlying such ADSs,
the “Perceptive Shares”), (ii) 0.5 million ADSs that are issuable upon the exercise, from time to time, of an outstanding warrant (the “Initial Warrant”) of Perceptive Credit Holdings III, LP, an affiliate of Perceptive II (“Perceptive III” and, together with
Perceptive II, “Perceptive” or the “selling shareholder”) that Perceptive III acquired from us on January 27, 2022,
pursuant to the terms of a credit agreement and guaranty, dated December 15, 2021 (the “Original Credit Agreement”),
among us and the other obligors party thereto and Perceptive III, as administrative agent and lender, and (iii) 0.5 million ADSs that are issuable upon the exercise, from time to time, of an outstanding warrant (the “New Warrant” and, together with the Initial Warrant, the “Warrants”) that Perceptive III acquired from the Company on
January 30, 2024, in connection with the second amendment and restatement of the Original Credit Agreement. The Warrants have an exercise price of $2.20 per ADS ($0.11 per A Ordinary Share), for an aggregate exercise price of up to
$2,200,000. The Initial Warrant expires on January 27, 2029 and the New Warrant expires on January 30, 2031. The ADSs are evidenced by American Depositary Receipts, or ADRs. In this opinion references to “Warrant
Shares” shall mean the Ordinary Shares issuable upon exercise of the Warrants and references to “Shares” shall mean the Perceptive Shares and the Warrant Shares together, unless the context
otherwise requires.
|
| 1.2 |
No opinion is expressed in this opinion letter (the “Opinion Letter”) with regard to any matter governed by the laws of any jurisdiction other than Ireland. Nor is any opinion expressed with
respect to taxation matters.
|
| 1.3 |
This Opinion Letter is issued for the purposes of the Registration Statement and is based on the assumptions and subject to the reservations and qualifications set out below.
|
| 2 |
Documents
|
| 2.1 |
For the purpose of issuing this Opinion Letter, we have reviewed and relied upon each of the following documents (each a “Document” and collectively, the “Documents”):
|
| 2.1.1 |
a certificate from Mr. John Gillard, the secretary of the Company, dated the same date as this Opinion Letter as to certain matters to be relied on by us (the “Company Certificate”);
|
| 2.1.2 |
the report of searches made against the Company by Dye and Durham, independent law searchers, on our behalf on 30 April 2024 in the Companies Registration Office of Ireland in Dublin and the Central Office of the High Court, Dublin
(together, the “Searches”);
|
| 2.1.3 |
a copy of the Initial Warrant dated 27 January 2022;
|
| 2.1.4 |
a copy of the New Warrant dated 30 January 2024;
|
| 2.1.5 |
a copy of the SPA
|
| 2.1.6 |
a copy of the constitution of the Company in force as of the date hereof (the “Constitution”) and a copy of the constitution of the Company in force on the date of the Initial Warrant (the “Prior Constitution”), both set out at appendix A of the Company Certificate;
|
| 2.1.7 |
a copy of minutes of the shareholders of the Company held on 25 January 2022, set out at appendix B of the Company Certificate;
|
| 2.1.8 |
a copy of the minutes of a meeting of the board of directors of the Company (the “Board”) held on 25 January 2022, set out at appendix C of the Company Certificate;
|
| 2.1.9 |
a copy of minutes of the shareholders of the Company held on 30 September 2022, set out at appendix D of the Company Certificate;
|
2
| 2.1.10 |
a copy of the minutes of the Board held on 30 January 2024, set out at appendix E of the Company Certificate; and
|
| 2.1.11 |
a copy of the Registration Statement.
|
| 3 |
Basis of Opinion
|
| 3.1 |
This Opinion Letter is addressed to the Company and to it only. It may not be relied upon (or disclosed to, used, quoted or circulated) by any other entity or person without our prior written consent, save that it may be disclosed:
|
| 3.1.1 |
as required by any law, regulation, regulatory authority to which the Company is subject or order of a court;
|
| 3.1.2 |
by the Company in order to establish a defence in any legal or regulatory proceeding or investigation to which the Company is or may be a party in relation to the above-mentioned transaction;
|
| 3.1.3 |
to the Company’s legal advisers;
|
| 3.1.4 |
to the Company’s affiliates; and
|
| 3.1.5 |
to the Company’s insurers in connection with any claim or potential claim against the Company in connection with the above-mentioned transaction, provided that disclosure of the Opinion Letter to any such persons shall be for information
only and the Opinion Letter may not be relied upon in any way by any such person.
|
| 3.2 |
This Opinion Letter is confined to Irish law in force as applied by the Irish courts at the date hereof and is given on the basis that it will be governed by and construed in accordance with Irish law. We undertake no responsibility to
notify the Company of any change in Irish law or fact after the date of this opinion. We have made no investigation of and express no opinion as to the laws of any other jurisdiction and we have assumed, without enquiry, that there is
nothing in the laws of any such other jurisdiction which would or might affect our opinion. This Opinion Letter speaks only as of the date hereof.
|
| 3.3 |
This Opinion Letter is limited strictly to the matters stated herein and is not to be read as extending, by implication or otherwise, to any other matter. In particular, we give no opinion in relation to taxation, accounting, actuarial
or financial matters. Furthermore, we give no opinion as to matters of fact.
|
| 3.4 |
In giving this Opinion Letter, we have relied upon the Searches and the Company Certificate and this Opinion Letter is given expressly upon the terms that no further investigation or diligence whatsoever in respect of any matter referred
to in the Searches or the Company Certificate is required of us by the Company.
|
| 3.5 |
We shall have no obligation to advise the Company on any of the matters referred to in, or to update, this Opinion Letter.
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3
| 4 |
Assumptions
|
| 4.1 |
For the purpose of this Opinion Letter, we have made the following assumptions (without any responsibility on our part if any assumption proves to have been untrue as we have not independently verified any assumption):
|
| 4.1.1 |
that the copies of each Document referred to herein as being reviewed by us are true, complete and accurate copies of the originals thereof as in effect on the date hereof without any amendment or modification thereto and that each
Document furnished to us in unsigned or unexecuted form will be duly signed or executed (as the case may be) in substantially the same form as that reviewed by us for the purposes of this Opinion Letter;
|
| 4.1.2 |
the genuineness of all signatures (including, for the avoidance of doubt, electronic signatures) and seals upon original and copy documents which we have examined and, in particular, that all signatures purporting to be of or by a party
or on behalf of a party are those of the party concerned;
|
| 4.1.3 |
any electronic signature inserted on a document was inserted by the signatory in question and not by another person and where attested by a witness was inserted in the physical presence of the witness;
|
| 4.1.4 |
the authenticity and completeness of all documents submitted to us as originals;
|
| 4.1.5 |
the completeness and conformity to the originals of all copy letters, resolutions, documents, certificates, permissions, minutes, licences, authorisations and all other copy documents of any kind furnished to us, whether in hard copy or
electronically;
|
| 4.1.6 |
all documents dated on, or prior to, the date hereof and on which we have expressed reliance have not been revoked or amended and remain accurate;
|
| 4.1.7 |
that, where incomplete or extracts of documents have been submitted to us or signature pages only have been supplied to us for the purpose of issuing this Opinion Letter, the original of any such document corresponds in all respects with
the last draft or extract of the document submitted to us;
|
| 4.1.8 |
that the copies produced to us of minutes of meetings and / or of the resolutions are true copies and correctly record the proceedings at such meetings and / or the subject matter which they purport to record; that directors specified as
being present at such meetings were, at the date of each such meeting, directors and duly authorised and appointed in that respect and not subject to any disqualification or restriction under law; that any provisions contained in the
Constitution or the Prior Constitution (as the case may be) relating to the declaration of directors' interests or the power of interested directors or shareholders to vote were duly observed; and that any meetings referred to in such
copies were duly convened and held, that those present at any such meetings acted bona fide throughout, that the resolution(s) set out in such copies were duly passed and are in full force and effect and have not been rescinded or varied in
any respect, and no further resolutions have been passed, or corporate or other action taken which would or might alter the effectiveness thereof;
|
4
| 4.1.9 |
that the copies of the Constitution and the Prior Constitution appended to the Corporate Certificate, and examined by us for the purposes of this opinion are complete and up-to-date and were validly adopted by the Company;
|
| 4.1.10 |
the truth, accuracy and completeness of the Corporate Certificate and that no facts or circumstances have arisen which would render the Corporate Certificate untrue, inaccurate or incomplete in any respect;
|
| 4.1.11 |
the Warrants are valid, complete, duly executed and binding on the Company;
|
| 4.1.12 |
the accuracy of the results of the Searches and that the information disclosed by those searches was up to date and that the information contained in those searches has not, since the date and time those searches were made, been altered
and that there was no information which had been delivered for registration or filing in the relevant registry, office or regulator that did not appear in the relevant records or files of the relevant registry, office or, as applicable,
regulator at the time those searches were made;
|
| 4.1.13 |
that any reference to the Company “validly existing” in this opinion shall mean not struck off the Register of Companies in Ireland;
|
| 4.1.14 |
that it is and was in the interests of (and will (or did) commercially benefit) the Company to file the Registration Statement and issue the Shares;
|
| 4.1.15 |
that the Company is not and was not, at the date of execution or signature, or the effective date of, the Registration Statement, and will not, as a result of the transactions contemplated by the Registration Statement, become insolvent
or unable to pay its debts, or be deemed to be so under any applicable statutory provision, regulation or law;
|
| 4.1.16 |
that, in so far as the laws of any jurisdiction other than Ireland are relevant, such laws do not prohibit and are not inconsistent with the issue of the Shares and that there is no provision of the laws of any jurisdiction (other than
Ireland) that would have a bearing on any of the matters opined upon herein and, to the extent that the Company requires any authorisation, consent or approval from any public, administrative or governmental body in any jurisdiction outside
of Ireland in relation to such issue, that it has obtained each such authorisation, consent or approval and has complied, and will continue to comply, with any conditions attaching thereto;
|
| 4.1.17 |
that there were and are no contractual or similar restrictions or other arrangements binding on the Company which could affect the conclusions in this Opinion Letter;
|
| 4.1.18 |
that the Company has not been induced by fraud, misrepresentation, coercion, duress, undue influence or by any similar circumstance to file the Registration Statement or issue Shares;
|
| 4.1.19 |
that no transaction or transactions, involving a direct or indirect transfer or issuance of shares in the capital of the Company, has or have taken place which should have been notified to the Central Bank of Ireland (or any predecessor
regulator) under applicable legislation, and which was or were not so notified;
|
| 4.1.20 |
that, at the time of issue of the Shares, the authority of the Company and the directors of the Company to issue the Shares (including on a non-pre-emptive basis) as provided for in the Documents and the Irish Companies Act 2014 (the “Companies Act”), was or, as the case may be, will be in full force and effect;
|
5
| 4.1.21 |
that any allotment of the Shares was or, as the case may be, will be in consideration of the receipt by the Company prior to the issue of such Shares of either cash (within the meaning of Section 64(3) of the Companies Act) or the
release of a liability of the Company for a liquidated sum, or an amount at least equal to the nominal value of the Shares and any premium required to be paid up on such Shares pursuant to their terms of issue;
|
| 4.1.22 |
that, as at the time of the issuance of the Shares, such issuance was not or, as the case may be, will not be in contravention or breach of any agreement, undertaking, arrangement, deed or covenant affecting the Company or to which the
Company is a party or otherwise bound or subject;
|
| 4.1.23 |
that the filing of the Registration Statement with the SEC has been authorised by all necessary actions under all applicable laws other than Irish law;
|
| 4.1.24 |
that any power of attorney granted by the Company in respect of the allotment and issue of the Shares shall have been duly granted, approved and executed in accordance with the Constitution or the Prior Constitution (as the case may be),
the Companies Act, the Powers of Attorney Act of 1996 of Ireland and all other applicable laws, rules and regulations;
|
| 4.1.25 |
that when filed with the SEC, the Registration Statement will not differ in any material respect from the drafts that we have examined and that the Registration Statement and amendments to the Registration Statement (including
post-effective amendments) will have become effective under the Securities Act;
|
| 4.1.26 |
that a complete prospectus supplement will have been prepared and filed with the SEC describing the Shares offered thereby;
|
| 4.1.27 |
that all securities issued and sold under the Registration Statement will be issued and sold in compliance with all applicable laws (other than Irish law), including applicable federal and state securities laws, in the manner stated in
the Registration Statement and the appropriate prospectus supplement;
|
| 4.1.28 |
that the Companies Act will continue in full force and have effect without amendment, revision, repeal or replacement as and from the date of this Opinion Letter;
|
| 4.1.29 |
that, from the date of this Opinion Letter, no corporate, shareholder or other action will be taken to amend, alter or repeal the Constitution;
|
| 4.1.30 |
that, from the date of this Opinion Letter, no corporate, shareholder or other action will be taken to re-designate or reclassify the Shares or create any other classes of share in the capital of the Company;
|
| 4.1.31 |
that the Company will continue to renew its authority to issue the Shares in accordance with the terms and conditions set out in the Constitution and the Companies Act and that, where such authority has not been renewed, the Company will
not issue the Shares after such authority has expired;
|
6
| 4.1.32 |
that, at the time of issue of the Shares, the Company had or, as the case may be, will have sufficient authorised but unissued share capital to issue the required number of shares underpinning such Shares;
|
| 4.1.33 |
that any issue of the Shares was or, as the case may be, will be in compliance with the Companies Act, the Takeover Panel Act, 1997, Takeover Rules, 2022 of Ireland (as may be amended), and all other applicable Irish company, takeover,
securities, market abuse, insider dealing laws and other rules and regulations; and
|
| 4.1.34 |
that the Registration Statement does not constitute (and is not intended/required to constitute) a prospectus within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council (the "EU Prospectus Regulation"), that no offer of shares to the public was or is made, or will be made, that required or requires the publication of a prospectus pursuant to European or Irish prospectus law in general, or, in
particular, pursuant to the EU Prospectus Regulation and that the ADSs are not and will not be admitted to trading on a regulated market as such term is defined in Article 4(1) of Directive 2014/65/EU of the European Parliament and of the
Council.
|
| 5 |
Opinion
|
Based upon and subject to the foregoing and subject to the qualifications set out in this opinion we are
of the opinion that, so far as the laws of Ireland are concerned, the issue of the Shares has been duly authorised by all necessary corporate action of the Company and on:
| 5.1 |
the allotment and issuance of the Shares (by the entry of the name of the registered owner thereof in the register of members of the Company confirming that such Shares have been issued credited as fully paid); and
|
| 5.2 |
the subscription and payment in full therefor by the relevant subscribers in accordance with the Constitution and the Warrants (in the case of the Warrant Shares) or the SPA (in the case of the Perceptive Shares), the Perceptive Shares
were, and the Warrant Shares will be, validly issued, fully paid and non-assessable (which term, when used herein, means that the holders of the Shares are not liable, solely by virtue of holding such Shares, for additional assessments or
calls on such Shares by the Company or its creditors).
|
| 6 |
Qualifications
|
| 6.1 |
This Opinion Letter is given subject to the following reservations and qualifications:
|
| 6.1.1 |
the opinions in this Opinion Letter are given solely on the basis of a review of the Documents and the applicable law with regard to the matters specified herein. The opinions are given only in respect of the laws of Ireland in effect as
of the date of this Opinion Letter and as to the facts and circumstances as stated herein in existence at such date and this Opinion Letter is not to be taken as expressing any opinion with regard to any matter governed by the laws of any
jurisdiction other than Ireland;
|
| 6.1.2 |
any term of an agreement may be amended orally by the parties notwithstanding any provision to the contrary in such agreement, and documents may be impliedly amended by later agreements or a course of dealing between the parties thereto,
notwithstanding any provision to the contrary therein contained;
|
| 6.1.3 |
an Irish court has power to stay an action if concurrent proceedings are being brought elsewhere; and
|
| 6.1.4 |
we have not verified or been responsible for verifying the accuracy of the Registration Statement (or any documents expressed to be incorporated by reference therein) or that no material facts or matters have been omitted therefrom.
|
| 7 |
General
|
| 7.1 |
We hereby consent to the inclusion of this opinion as an exhibit to the Registration Statement to be filed with the SEC and any amendments thereto. We also hereby consent to the reference to our firm under the caption “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are in a category of person whose consent is required under Section 7 of the Securities Act. This
Opinion Letter is intended solely for use in connection with the issuance of the ADSs subject to the Registration Statement and is not to be relied upon for any other purpose.
|
| 7.2 |
Save where otherwise specified, a reference in this Opinion Letter to a clause, is to a clause of this Opinion Letter.
|
Yours sincerely
/s/ Matheson
MATHESON
7
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our reports dated April 30, 2024 with respect to (i) the consolidated financial statements of Trinity Biotech
plc included in the Annual Report on Form 20-F for the year ended December 31, 2023, and (ii) the Waveform Technologies, Inc. Statement of Assets Acquired and Liabilities Assumed as of January 30, 2024, which are included in Form 6-K filed on April
30, 2024, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement and to the use of our name as it appears under the caption
“Experts.”
/s/ GRANT THORNTON
Dublin, Ireland
April 30, 2024