Trinity Biotech PLC F-3, filed Aug 30, 2022
Trinity Biotech PLC (TRIB)
F-3
2022-08-30
View Original
Added on
October 18, 2026
Registration No. 333-
As filed with the Securities and Exchange Commission on August 30, 2022
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
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.
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 AUGUST 30, 2022
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TRINITY BIOTECH PLC
 11,189,847 American Depositary Shares
representing
44,759,388 ‘A’ Ordinary Shares
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This prospectus relates to the resale, from time to time, by the selling shareholder named in this prospectus of up to 11,189,847 American Depositary Shares (“ADSs”) (each
ADS represents 4 ‘A’ Ordinary Shares, par value $0.0109 per share) of Trinity Biotech plc. The ADSs are evidenced by American Depositary Receipts, or ADRs. MiCo IVD Holdings, LLC (“MiCo” or the “selling shareholder”), acquired the ADSs
from us on May 3, 2022 pursuant to the terms of a securities purchase agreement, dated April 11, 2022, between us and MiCo (the “Securities Purchase Agreement”).
Our ADSs are listed on The NASDAQ Global Select Market under the symbol “TRIB.” On August 29, 2022, the closing price of an ADS on The NASDAQ Global Select Market was $1.33. MiCo
may offer and sell any of the ADSs from time to time at fixed prices, at market prices or at negotiated prices, and may engage a broker, dealer or underwriter to sell the ADSs. For additional information on the possible methods of sale that may be
used by MiCo, you should refer to the section entitled “Plan of Distribution” elsewhere in this prospectus. We will not receive any proceeds from the sale of any ADSs by MiCo. We do not know when or in what amount MiCo may offer the ADSs for sale.
MiCo may sell any, all or none of the ADSs offered by this prospectus.
INVESTING IN THE ADSs INVOLVES A HIGH DEGREE OF RISK. BEFORE BUYING ANY SECURITIES, YOU SHOULD CAREFULLY CONSIDER THE RISK FACTORS DESCRIBED IN
“RISK FACTORS” BEGINNING ON PAGE 5 OF THIS PROSPECTUS AND UNDER SIMILAR HEADINGS IN THE OTHER DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION (THE “COMMISSION”) NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS ARE TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is August 30, 2022.
TABLE OF CONTENTS
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i
Unless expressly stated otherwise, in this prospectus, references to “we”, “us”, “Trinity Biotech” or the “Group” shall mean Trinity Biotech plc and its world-wide subsidiaries,
collectively. References to the “Company” shall mean Trinity Biotech plc. All references to “dollars” or “$” 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 (SI No. 380/2019); 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.
ii
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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pandemics or other public health emergencies, including the COVID-19 pandemic;
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the occurrence of hostilities and political instability, including the invasion of Ukraine by Russia, and resulting volatility and other effects on global economic conditions;
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changes in customer demand;
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1
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our ability to successfully develop and commercialize new products;
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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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the United Kingdom’s withdrawal from the European Union and its potential impact on our supply chains and the market for our products in the United Kingdom;
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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, as amended for the year ended December 31, 2021 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.
2
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.
We develop, acquire, manufacture and market medical diagnostic products for the clinical laboratory and point-of-care segments of the diagnostic market. These products are used to
detect autoimmune, infectious and sexually transmitted diseases, diabetes and disorders of the liver and intestine. We are also a significant provider of raw materials to the life sciences and research industries globally. We market our portfolio of
several hundred products to customers in approximately 100 countries around the world through our own sales force and a network of international distributors and strategic partners.
For a full and comprehensive description of our business, markets and product lines, see our most recent Annual Report on Form 20-F, as amended, 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
On May 3, 2022, the Company closed its approximately $45.0 million strategic investment and partnership with MiCo, a subsidiary of MiCo Ltd., a KOSDAQ-listed company. The
investment consisted of an equity investment of approximately $25.2 million (for the approximately 11.2 million ADSs it acquired pursuant to the Securities Purchase Agreement at a price of $2.25 per ADS)(the “Equity Investment”) and a $20
million seven-year, unsecured junior convertible note issued by the Company, with a fixed interest rate of 1.5% and an ADS conversion price of $3.24 per ADS (the “Convertible Note”). The Convertible Note mandatorily converts into ADSs if the
volume weighted average price of the Company’s ADSs is at or above $3.24 for any five consecutive NASDAQ trading days. The Company has used those proceeds primarily to repay a portion of the Group’s $81.25 million term loan (the “Term Loan”)
from Perceptive Credit Holdings III, LP (“Perceptive”).
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.
3
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ADSs offered by the selling shareholder
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11,189,847 ADSs (each ADS represents 4 ‘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 August 24, 2022
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152,430,282 ‘A’ Ordinary Shares (which excludes 17,314,662 ‘A’ Ordinary Shares issuable upon the exercise of options having exercise prices ranging from $0.19 to $4.36 per share and
24,691,358 ‘A’ Ordinary Shares represented by approximately 6,172,840 ADSs issuable upon the exercise of the Convertible Note).
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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.
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NASDAQ Global Select 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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4
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
MiCo owns approximately 29.4% of the voting share capital of our Company, which gives MiCo significant influence over our management and affairs and may deter a
change in control or other transaction that may be favorable to our shareholders.
MiCo owns approximately 11.2 million of our ADSs, which represents approximately 29.4% of the outstanding voting share capital of our Company and, under the terms of the
Convertible Note and the Securities Purchase Agreement, MiCo is entitled to nominate a total of four individuals for consideration by the nomination committee of the board of directors of the Company for appointment as directors for as long as MiCo
continues to hold qualifying amounts of ADSs or principal value of the Convertible Note or converted ADSs, as applicable. Because of its ownership interest and right to nominate directors, MiCo will have significant influence over our management and
affairs and over matters requiring shareholder approval, including the election of directors and significant corporate transactions, such as a merger or other sale of our Company or our assets, for the foreseeable future. This concentration of
ownership may also delay, deter or prevent a change in control, and may make some transactions more difficult or impossible to complete without the support of MiCo, regardless of the impact of such transactions on our other shareholders. The
interests of MiCo may differ from the interests of other shareholders and thus result in corporate decisions that are disadvantageous to other shareholders.
Risks Related to the Offering
Sales by MiCo of its ADSs may cause the market price of our ADSs to decline.
The sale by MiCo of its ADSs or the ADSs issuable upon conversion of the Convertible Note, 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 MiCo 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.
5
We will not receive the proceeds from the resale of the ADSs by Mico.
The following table sets forth our capitalization and indebtedness as of March 31, 2022 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 on an actual basis, and on an as-adjusted basis to give effect to: (i) the Equity Investment and purchase by MiCo of the Convertible
Note on May 3, 2022; and (iii) the repayment of $34.5 million in nominal amount of the Term Loan on May 5, 2022.
The table below, however, does not give effect to (i) the impact of the requirement under IFRS 9, IFRS 13 and IAS 32 to account for a warrant issued to Perceptive as a derivative
financial liability of the Company; (ii) the impact of the requirement under IFRS 9, IFRS 13 and IAS 32 to account for the option to repay the Perceptive term loan early as a derivative financial asset of the Company; (iii) 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; (iv) the impact on the accumulated surplus of fees and expenses related to the investment by MiCo incurred after
March 31, 2022; (v) the treatment of the Convertible Note under IFRS 9, IFRS 13 and IAS 32 as a compound financial instrument with a debt and equity element; (vi) the impact on the accumulated surplus of fees and expenses associated with the early
repayment of the Term Loan; (vii) the impact on the accumulated surplus of the additional accretion interest expense arising from the early repayment of $34.5 million in the nominal amount of the Term Loan; (viii) the issuance and sale of 10 million
‘A’ Ordinary Shares represented by ADSs issuable upon exercise of the Perceptive warrant; (ix) the issuance of 17,314,662 ‘A’ Ordinary Shares issuable upon exercise of outstanding options; or (x) the issuance of 24,691,358 ‘A’ Ordinary Shares
issuable upon the conversion of the Convertible Note. Perceptive, Mico and the holders of those share options are not obligated to exercise the Perceptive warrant, the Convertible Note and those options, respectively, and, as a result, there can be
no assurance that the Perceptive warrant, the Convertible Note or those options will ever be exercised or converted into ‘A’ Ordinary Shares. The IFRS accounting for the above transactions is complex and may result in significant further
adjustments.
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As of March 31, 2022
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US$000’s
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Actual
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As Adjusted(1)
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Debt Outstanding:
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Exchangeable Notes (at nominal amount)
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$
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210
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210
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Term Loan (at nominal amount)
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81,250
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46,750
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Convertible Note (at nominal amount)
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-
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20,000
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Equity:
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‘A’ Ordinary Shares, par value $0.0109 per share
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$
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1,445
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1,933
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Share Premium
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$
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21,874
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46,563
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Treasury shares
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$
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(24,922
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)
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(24,922
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)
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Reserves
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$
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(5,163
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)
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(5,163
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)
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Accumulated surplus
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$
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481
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481
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Total shareholders’ equity
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$
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(6,285
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)
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18,892
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Total Capitalization
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$
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75,175
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85,852
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(1) The number of ‘A’ Ordinary Shares issued and outstanding excludes 17,314,662 ‘A’ Ordinary Shares issuable upon the exercise of options having exercise prices ranging from $0.19 to
$4.36 per share, 24,691,358 ‘A’ Ordinary Shares (represented by approximately 6,172,840 ADSs issuable upon the exercise of the Convertible Note), and the 10,000,000 ‘A’ Ordinary Shares issuable upon the exercise of the Perceptive warrant, having an
exercise price of $1.30 per ADS ($0.325 per ‘A’ Ordinary Share).
6
We are registering the resale of 11,189,847 ADSs (representing 44,759,388 ‘A’ Ordinary Shares) to satisfy certain registration rights that we have granted to MiCo. MiCo is a
subsidiary of MiCo Ltd., a KOSDAQ-listed and Korea-based company, which is engaged in the biomedical business through its affiliate MiCo BioMed, in addition to providing cutting-edge technology driven solutions in the semi-conductor and green energy
sectors. The term “selling shareholder” includes the entity 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 ADSs. Except as described herein or in the documents incorporated by reference herein, we did not have any material relationship with MiCo prior to the transactions resulting from the Securities
Purchase Agreement.
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.
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Selling Shareholder
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Ordinary Shares Beneficially
Owned Prior to Offering / Percentage of Class(2) |
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Ordinary Shares
Being Offered
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Ordinary Shares Beneficially Owned Upon Completion of Offering /
Percentage of Class (2)(3) |
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MiCo IVD Holdings, LLC (1)
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69,450,748 ‘A’ Ordinary Shares (represented by 17,362,687ADSs)/ 39.2%
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44,759,388 ‘A’ Ordinary Shares (represented by 11,189,847 ADSs)
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24,691,358 ‘A’ Ordinary Shares (represented by approximately 6,172,840 ADSs) / 13.9%
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(1)
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MiCo IVD Holdings, LLC (“MiCo”) is a Delaware limited liability company. The address of MiCo is 85 Orchard Rd, Skillman, NJ 08558, United States.
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(2)
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Including 24,691,358 ‘A’ Ordinary Shares (represented by approximately 6,172,840 ADSs) issuable upon conversion of the Convertible Note, assuming certain conditions to the issuance of ADSs upon conversion of the
Convertible Note, including shareholder approval, have been met.
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(3)
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Assuming all ADSs representing ‘A’ Ordinary Shares being registered for resale hereunder are sold and that no ADSs issuable to the Selling Shareholder upon conversion of the Convertible Note are sold.
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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:
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ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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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;
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purchases by a broker-dealer as principal and resale by the broker-dealer for its own account;
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an exchange distribution in accordance with the rules of the applicable exchange;
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privately negotiated transactions;
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short sales effected after the date the registration statement of which this prospectus is a part is declared effective by the Commission;
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through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
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through agreements between broker-dealers and the selling shareholder to sell a specified number of such shares at a stipulated price per share;
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a combination of any such methods of sale; and
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any other method permitted by applicable law.
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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.
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.
8
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 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 : 4 ‘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, 2021, as amended, 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, 2021, as amended, 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
|
$
|
1,431.47
|
||
|
EDGAR and printing fees
|
$
|
1,000
|
||
|
Legal fees and expenses
|
$
|
10,000
|
||
|
Accounting fees and expenses
|
$
|
5,500
|
||
|
Miscellaneous
|
$
|
2,000
|
||
|
Total
|
$
|
19,931.47
|
Except as otherwise described in our Annual Report on Form 20-F for the fiscal year ended December 31, 2021, as amended, 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, 2021.
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, 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, 2021 have been so incorporated
in reliance on the report 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, 2021, as filed with the Commission on May 2, 2022 and
Amendment No. 1 thereto on Form 20-F/A, as filed with the Commission on May 25, 2022;
|
| ● |
Our Reports on Form 6-K furnished to the Commission on May 9, 2022, May 23, 2022 and July
1, 2022; and
|
| ● |
The description of our ADSs contained in our Form 20-F for the fiscal year ended December 31, 2021 filed with the Commission
on May 2, 2022.
|
We are also incorporating by reference (i) all subsequent annual reports on Form 20-F that we file with the Commission and certain reports on Form 6-K that we furnish to the
Commission after the date of the initial filing of and prior to the effectiveness of the registration statement of which this prospectus forms a part, and (ii) all such annual reports and certain reports on Form 6-K that we file after the
effectiveness of the registration statement of which this prospectus forms a part, until we file a post-effective amendment indicating that the offering of the securities made by this prospectus has been terminated (in each case, if such Form 6-K
states that it is incorporated by reference into 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.
11
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.
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
11,189,847 American Depositary Shares
representing
44,759,388 ‘A’ Ordinary Shares
PROSPECTUS
August 30, 2022
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.
|
II - 2
| (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 - 3
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 August 30, 2022.
|
TRINITY BIOTECH PLC
|
|||
|
By:
|
/s/ Ronan O’Caoimh
|
||
|
Ronan O’Caoimh
|
|||
II - 4
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 August 30, 2022 by or on behalf of the following persons in the capacities
indicated.
|
Signature
|
Title
|
|
|
/s/ Seon Kyu Jeon
|
Chairman of the Board of Directors
|
|
|
Seon Kyu Jeon
|
||
|
/s/ Ronan O’Caoimh
|
Chief Executive Officer (Principal Executive Officer)
|
|
|
Ronan O’Caoimh
|
||
|
/s/ John Gillard
|
Chief Financial Officer, Company Secretary, and Director
|
|
|
John Gillard
|
||
|
/s/ Jim Walsh
|
Executive Director
|
|
|
Jim Walsh
|
||
|
/s/ Aris Kekedjian
|
Non-executive Director
|
|
|
Aris Kekedjian
|
||
|
/s/ Michael Sung Soo Kim
|
Non-executive Director
|
|
|
Michael Sung Soo Kim
|
II - 5
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 August 30, 2022.
|
Puglisi & Associates
|
||
|
By:
|
/s/ Donald J. Puglisi
|
|
|
Name: Donald J. Puglisi
|
||
|
Title: Managing Director
|
||
II - 6
Exhibit 5.1
|
Trinity Biotech plc
IDA Business Park
Bray
Co. Wicklow
Ireland
Private and Confidential
|
|
Our Ref
|
Your Ref
|
30 August 2022
|
|
DJ/ES 4031/2
|
Dear Sirs
Trinity Biotech Public Limited Company
We have acted as Irish counsel to Trinity Biotech Public Limited Company, a public limited company incorporated under the laws of
Ireland with company number 183476 (the “Company”), in connection with the filing by the Company, on the date hereof, of a registration statement
on Form F-3 pursuant to the U.S. Securities Act of 1933, as amended (the “Securities Act”) (the “Registration Statement”), to which this opinion (the "Opinion") is an exhibit, with
the U.S. Securities and Exchange Commission (the “Commission”), pursuant to which the Company will register for resale, under the Securities Act,
up to 44,759,388 ‘A’ Ordinary Shares, par value $0.0109 per share in the capital of the Company (the “Ordinary Shares”), represented by American
Depositary Shares (“ADSs”) (each ADS represents 4 ‘A’ Ordinary Shares) that were issued in connection with the entry by the Company and MiCo IVD
Holdings, LLC (“MiCo”) into a securities purchase agreement dated 11 April 2022 (the “Securities Purchase Agreement”), for the purchase by MiCo of 11,189,847 ADSs at a price of $2.25 per ADS, for an aggregate consideration of $25,177,155.75.
In connection with this Opinion, we have reviewed the corporate resolutions, records and other documents and searches listed in
Schedule 1 to this Opinion, together with such other resolutions, records and documents as we have deemed necessary as a basis for the opinions expressed below.
| 1 |
Opinion
|
Based on the foregoing, and subject to the further assumptions, qualifications and limitations set out in this Opinion, we are of the
opinion that the Ordinary Shares are validly issued, fully paid and non-assessable (“non-assessable” is a phrase which has no defined meaning
under Irish law, but, for the purposes of this Opinion, shall mean the registered holders of such Ordinary Shares are not subject to calls for additional payments on such shares).
| 2 |
Assumptions
|
For the purposes of this Opinion, we have assumed:
| (i) |
the truth and accuracy of the contents of all documents (together with the Searches, as defined below) reviewed as to factual matters, but have made no independent
investigation regarding such factual matters;
|
| (ii) |
all signatures, initials, seals and stamps contained in, or on, all documents submitted to us are genuine;
|
| (iii) |
all documents submitted to us as originals are authentic and complete and that all documents submitted to us as copies (including without limitation any document
submitted to us as a .pdf (or any other format) attachment to an email) are complete and conform to the originals of such documents, and the originals of such documents are authentic and complete;
|
| (iv) |
at the time of the allotment and issue of any Ordinary Shares pursuant to the terms of the Securities Purchase Agreement, the Company had a sufficient number of
authorised but unissued 'A' ordinary shares of $0.0109 each (nominal value) in its share capital (being at least equal to the number of Ordinary Shares to be allotted and issued);
|
| (v) |
at the time of the allotment and issue of any Ordinary Shares (or the grant of any right to subscribe for, or convert any security into, Ordinary Shares (a “convertible right”)) pursuant to the terms of the Securities Purchase Agreement, to the extent required, (A) the directors of the Company, in
accordance with section 1021 of the Companies Act 2014 of Ireland, as amended, (the “Companies Act”), were generally and unconditionally
authorised by the shareholders of the Company to allot a sufficient number of “relevant securities” (within the meaning of that section)
(being at least equal to the number of Ordinary Shares the subject of such allotment and issuance or grant of a convertible right) and (B) the directors of the Company were, in accordance with section 1023 of the Companies Act, empowered by
the shareholders of the Company to allot and issue such Ordinary Shares or grant convertible rights as if section 1022(1) did not apply to such allotment and issuance or grant;
|
| (vi) |
the full consideration for all Ordinary Shares to be allotted and issued pursuant to the Securities Purchase Agreement was received by the Company prior to the
issuance of such Ordinary Shares;
|
| (vii) |
no Ordinary Shares were allotted and issued other than pursuant to a resolution of the board of directors of the Company or a duly authorised committee thereof;
|
| (viii) |
the resolutions passed by the board of directors of the Company described in the extracts referred to in the Schedule, and examined for the purposes of this opinion,
were passed at a meeting of the board of directors, that meeting was properly convened, constituted and held and that the said resolutions have not since been amended or rescinded;
|
| (ix) |
the resolution passed by the shareholders of the Company, and examined for the purposes of this opinion, was passed at the extraordinary general meeting of the
Company held on 25 January 2022 (the “EGM”), that the EGM was properly convened, constituted and held and that the said resolution has
not since been amended or rescinded;
|
2
| (x) |
the information disclosed by the Searches (as defined below) was accurate at the dates the Searches were made and has not been altered and that the Searches did not
fail to disclose any information which had been delivered for registration but did not appear from the information available at the time the Searches were made or which ought to have been delivered for registration at that time but had not
been so delivered and that no additional matters would have been disclosed by Searches carried out since that time;
|
| (xi) |
the Company was, or will be, fully solvent (i) at the time of, and immediately after, the filing of the Registration Statement and (ii) at the date hereof;
|
| (xii) |
the Company would not, as a consequence of doing any act or thing which the Registration Statement contemplates, permits or requires the Company to do, be insolvent;
|
| (xiii) |
no steps have been taken or, to the best of the knowledge, information and belief of the directors of the Company, are being taken to appoint a receiver, liquidator
or an examiner over the Company or any part of its undertaking or assets, or to strike the Company off the Register of Companies or to otherwise dissolve or wind up the Company;
|
| (xiv) |
the Company did not give any financial assistance, as contemplated by sections 82 and 1043 of the Companies Act, for the purpose of the acquisition of the Ordinary
Shares, save as permitted by, or pursuant to an exemption to, the said sections 82 and 1043; and
|
| (xv) |
the offering, sale and/or marketing of any Ordinary Shares was made, effected and conducted in accordance with, and will not violate, the securities laws and regulations of all applicable jurisdictions, including Ireland, which impose
any restrictions, or mandatory requirements, in relation to the offering or sale of any shares to the public in any jurisdiction, including Ireland, and/or any prospectus or analogous disclosure document prepared in connection therewith.
|
| 3 |
Qualifications
|
The opinions set forth in this Opinion are given subject to the following qualifications:
| 3.1 |
a search of the Companies Registration Office (the “CRO”) is
not capable of revealing whether or not a winding up petition or a petition for the appointment of an examiner has been presented; and
|
| 3.2 |
a search at the Petitions Section of the Central Office of the High Court is not capable of revealing whether or not a receiver has been appointed.
|
Whilst each of the making of a winding up order, the making of an order for the appointment of an examiner and the appointment of a
receiver may be revealed by a search at the CRO, it may not be filed at the CRO immediately and, therefore, our searches at the CRO may not have revealed such matters.
This Opinion is based upon, and limited to, the laws of Ireland as is in effect on the date hereof and is based on legislation
published and cases fully reported before that date and our knowledge of the facts relevant to the opinions contained herein. For the avoidance of doubt, Ireland does not include Northern Ireland and the laws of Ireland do not include the laws in
force in Northern Ireland. We have assumed without enquiry that there is nothing in the laws of any jurisdiction other than Ireland which would, or might, affect our opinion as stated herein. We have made no investigations of, and we express no
opinion on, the laws of any jurisdiction other than Ireland or the effect thereof. This Opinion is expressed as of the date hereof and we assume no obligation to update this Opinion.
3
| 4 |
Consent
|
This Opinion is furnished to you and the persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act
strictly for use in connection with the Registration Statement and may not be relied upon by any other person without our prior written consent. This Opinion is confined strictly to the matters expressly stated herein and is not be read as
extending by implication or otherwise to any other matter.
We hereby consent to the filing of this Opinion as Exhibit 5.1 to the Registration Statement and to the reference to Matheson LLP
therein. In giving such consent, we do not admit that we are included in the category of persons whose consent is required under section 7 of the Securities Act, or the rules and regulations of the Commission promulgated thereunder.
This Opinion and the opinions given in it are governed by, and construed in accordance with, the laws of Ireland.
Yours faithfully
/s/ Matheson LLP
MATHESON LLP
4
Schedule 1
Documents
| 1. |
A copy of the Securities Purchase Agreement.
|
| 2. |
A certificate executed by 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
"Corporate Certificate").
|
| 3. |
A copy of the constitution of the Company.
|
| 4. |
A copy of the minutes of a meeting of the board of the shareholders of the Company held on 25 January 2022, set out at appendix B of the Corporate Certificate.
|
| 5. |
A copy of the minutes of a meeting of the board of directors of the Company held on 8 April 2022, set out at appendix C of the Corporate Certificate.
|
| 6. |
The Registration Statement, as filed with the U.S. Securities and Exchange Commission on the date hereof.
|
| 7. |
Searches carried out by independent law researchers on our behalf against Trinity Biotech Public Limited Company plc on each of: (1) 3 May 2022; and (2) 30 August
2022, in (i) the Index of Petitions and Winding-up Notices maintained at the Central Office of the High Court of Ireland, (ii) the Judgments’ Office of the Central Office of the High Court of Ireland and (iii) the Companies Registration
Office.
|
5
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our report dated May 2, 2022 with respect to the consolidated financial statements of Trinity Biotech plc included in the Annual Report on Form 20-F for the year
ended December 31, 2021, which is incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned report in the Registration Statement, and to the use of our name as it appears under
the caption “Experts.”
/s/ Grant Thornton
Dublin, Ireland
August 30, 2022