Trinity Biotech PLC F-3, filed Mar 21, 2025
Trinity Biotech PLC (TRIB)
F-3
2025-03-21
View Original
Added on
October 18, 2026
Registration No. 333-
As filed with the Securities and Exchange Commission on March 21, 2025
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, County Wicklow,
A98 H5C8,
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
28 Liberty 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”), filed a combined Registration Statement on Form F-3 (Registration No. 333- 279017) with the
U.S. Securities and Exchange Commission (the “Commission”) on April 30, 2024, which was declared effective by the Commission on May 7, 2024 (the “Existing F-3 Registration Statement”). The Existing F-3 Registration Statement related to the
resale, from time to time, by Perceptive Credit Holdings II, LP and Perceptive Credit Holdings III, LP (together, “Perceptive”), as the selling shareholders, or their permitted assigns, of up to 2.8 million American Depositary Shares
(“ADSs”) (each ADS represents 20 A Ordinary Shares, par value $0.0109 per share), including up to 1.0 million ADSs issuable upon the exercise of warrants acquired from us on January 27, 2022 and January 30, 2024 (collectively, the “Prior
Warrants”) and 1.8 million ADSs acquired from us on January 30, 2024. 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 shareholders, of (i) 1.79 million of the ADSs acquired from us on January 30, 2024, previously registered under the Existing F-3 Registration Statement, (ii) up to 1.0 million ADSs issuable upon
exercise of the Prior Warrants, previously registered under the Existing F-3 Registration Statement, and (iii) up to an additional 1.5 million ADSs issuable upon exercise of new warrants acquired from us on December 23, 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 MARCH 21, 2025
TRINITY BIOTECH PLC
4,290,000 American Depositary Shares
representing
85,800,000 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 4,290,000 American Depositary Shares
(“ADSs”) (each ADS represents 20 A Ordinary Shares, par value $0.0109 per share), including up to (i) 1.79 million ADSs that Perceptive Credit Holdings II, LP (“Perceptive II”) acquired from us on January 30, 2024 in connection with an
acquisition (the “Waveform Acquisition”) pursuant to an asset and share purchase agreement among TRIB Biosensors Inc., our wholly-owned subsidiary, as purchaser, and Waveform Technologies, Inc. (“Waveform”) 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 (“Warrant #1”) 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, initially dated December 15, 2021 (the “Original Credit Agreement”), among us and the
other obligors party thereto and Perceptive III, as administrative agent and lender, (iii) 0.5 million ADSs that are issuable upon the exercise, from time to time, of an outstanding warrant ( “Warrant #2”) that Perceptive III acquired from us on
January 30, 2024, in connection with the second amendment and restatement of the Original Credit Agreement, (iv) 1.0 million ADSs that are issuable upon exercise, from time to time, of an outstanding warrant ( “Warrant #3”) that Perceptive III
acquired from us on December 23, 2024, in connection with the third amendment and restatement of the Original Credit Agreement, and (v) 0.5 million ADSs that are issuable upon exercise, from time to time, of an outstanding warrant (“Warrant #4”
and, together with Warrant #1, Warrant #2 and Warrant #3, collectively the “Warrants”) that Perceptive II acquired from us on December 23, 2024, in connection with the extension of a deferred consideration payment related to the Waveform
Acquisition. Pursuant to amendments to the Warrants in connection with the third amendment and restated of the Original Credit Agreement, the Warrants have an exercise price of $0.8000 per ADS ($0.11 per A Ordinary Share), for an aggregate
exercise price of up to $2,000,000. Warrant #1 expires on January 27, 2029, Warrant #2 expires on January 30, 2031, and Warrant #3 and Warrant #4 expire on December 23, 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 March 20, 2025, the closing price of an ADS on
The NASDAQ Global Select Market was $0.675. Perceptive may offer and sell any of the ADSs from time to time at fixed prices, at market prices or at negotiated prices, and may engage a broker, dealer or underwriter to sell the ADSs. For
additional information on the possible methods of sale that may be used by Perceptive, you should refer to the section entitled “Plan of Distribution” elsewhere in this prospectus. We will not receive any proceeds from the sale of any ADSs by
Perceptive. We do not know when or in what amount Perceptive may offer the ADSs for sale. Perceptive may sell any, all or none of the ADSs offered by this prospectus.
INVESTING IN THE ADSs INVOLVES A HIGH DEGREE OF RISK. BEFORE BUYING ANY SECURITIES, YOU SHOULD CAREFULLY CONSIDER THE RISK FACTORS DESCRIBED IN
“RISK FACTORS” BEGINNING ON PAGE 5 OF THIS PROSPECTUS AND UNDER SIMILAR HEADINGS IN THE OTHER DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION (THE “COMMISSION”) NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS ARE TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is March 21, 2025.
TABLE OF CONTENTS
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Unless expressly stated otherwise, in this prospectus, references to “we”, “us”, “Trinity Biotech” or the “Group” shall mean Trinity Biotech plc and its world-wide subsidiaries,
collectively. References to the “Company” shall mean Trinity Biotech plc. All references to “dollars” or “$” 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.
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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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
In July 2024, we entered into an At the Market Offering Agreement with Craig-Hallum pursuant to which the Company may sell its ADSs from time to
time in an at the market offering through Craig-Hallum, acting as sales agent (the “ATM Program”). As of the date of the registration statement of which this prospectus forms a part, we have issued a total of 4,688,029 ADSs pursuant to the ATM
Program.
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, County 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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4,290,000 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 March 15, 2025
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383,881,600 A Ordinary Shares (which excludes 48,506,672 A Ordinary Shares issuable upon the exercise of options at exercise prices that range from US$0.12-US$1.29 per share, 51,200,000 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 $2,000,000 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
We may encounter difficulties in realizing the potential financial or strategic benefits of recent business acquisitions. We expect to make additional
acquisitions in the future that could disrupt our operations and harm our operating results.
A significant part of our business strategy is to pursue acquisitions and other initiatives based on a strategy centered on adding complementary solutions to our portfolio—all while
we seek to ensure our continued high quality of services and product delivery. We have made numerous acquisitions including the acquisition in 2024 of the biosensor assets of Waveform and intend to develop a range of biosensor devices and related
services, starting with a continuous glucose monitoring (“CGM”) product.
Mergers and acquisitions of companies and assets are inherently risky and subject to many factors outside of our control and no assurance
can be given that our future acquisitions will be successful and will not adversely affect our business, operating results, or financial condition. In the future, we may seek to acquire or make strategic investments in complementary businesses,
technologies, services or products, or enter into strategic partnerships or alliances with third parties in order to expand our business. Failure to manage and successfully integrate such acquisitions could materially harm our business and operating
results. Prior acquisitions have resulted in a wide range of outcomes, from successful introduction of new products technologies and professional services to a failure to do so. There can be no assurance that new product enhancements will be made in
a timely manner or that pre-acquisition due diligence will have identified all possible issues that might arise with respect to such products. If we acquire other businesses, we may face difficulties, including:
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Difficulties in integrating the operations, systems, technologies, products, and personnel of the acquired businesses or enterprises;
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Diversion of management’s attention from normal daily operations of the business and the challenges of managing larger and more widespread operations resulting from acquisitions;
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Integrating financial forecasting and controls, procedures and reporting cycles;
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Potential difficulties in completing projects associated with in-process research and development;
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Difficulties in entering markets in which we have no or limited direct prior experience and where competitors in such markets have stronger market positions;
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Insufficient revenue to offset increased expenses associated with acquisitions; and
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The potential loss of key employees, customers, distributors, vendors and other business partners of the companies we acquire following and continuing after announcement of acquisition plans
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We may not succeed in our efforts to implement a comprehensive transformation plan to improve the financial performance of our existing business and realign our
continuing business.
We initially announced the adoption of a transformation plan to improve the financial performance of our existing business in April 2024 and we continue to pursue a strategic realignment of our continuing business. The
plan has several key components, including:
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Reducing complexity and cost by consolidating our main manufacturing operations into a considerably smaller number of sites and also moving to an outsourced model for a significant amount of our less complex manufacturing activities;
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Reducing the cost of goods of many of our products by changing suppliers and negotiating new deals with existing suppliers;
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Continued market acceptance of our new TrinScreen™ HIV rapid point-of-care test;
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Simplifying our internal operations and optimizing our business support function locations; and
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Realigning our existing business portfolio to support our planned growth in the CGM space.
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Although we have implemented or are in the final stages of implementing a number of cost-saving initiatives, including consolidating manufacturing, moving some manufacturing offshore to improve our operating
margins, and moving significant aspects of our business support functions to a lower cost and centralized location, we cannot assure you that these efforts will be successful or that we can achieve our realignment and long-term profitability goals. A
failure to achieve these goals will have a material adverse effect on our results of operations and financial condition.
In 2021, certain of our U.S. subsidiaries received loans which were subsequently forgiven under the Paycheck Protection Program under the Coronavirus Aid,
Relief, and Economic Security Act (the “CARES Act”) which they may not have been eligible to receive. If it is determined that the subsidiaries were ineligible to receive the loans, they may be required to return the proceeds, pay interest and may be
subject to other penalties.
In January 2021, two of our U.S. based subsidiaries applied for and received loans totaling approximately $1.8 million under the Paycheck Protection Program (the “PPP”) of
the CARES Act. In September 2021, the two subsidiaries applied for forgiveness of the loans and those loans were subsequently forgiven. While our subsidiaries believed at the time that they obtained the loans that they met all of the eligibility
requirements under the CARES Act, they were notified by the Department of Justice in late October 2024 that the two subsidiaries may have not been eligible to receive those loans. We voluntarily conducted an internal review of the circumstances
surrounding the loan process and have made a preliminary determination that due to changes in the guidelines for such loans, the two subsidiaries may have inadvertently not met the headcount eligibility criteria. During a January 28, 2025
videoconference among outside U.S. Counsel engaged to respond to questions from the Civil Division of the Department of Justice about the aforementioned loans obtained by the two US. Subsidiaries, a lawyer employed by the Department of Justice
raised, for the first time with the Company, the question of whether its U.S. subsidiaries met the headcount eligibility criteria for the first round of PPP loans in 2020, when the subsidiaries received approximately $4 million of loans which were
subsequently forgiven. The criteria for eligibility was different for the two rounds of loans, and we believe that the U.S. subsidiaries met the eligibility criteria for the first round of loans based on guidance issued by the Small Business
Administration at the time of the first round of loan applications and as a result of having a lower headcount arising from furloughs of employees that were not expected to be rehired. We, along with our legal counsel, have reviewed the circumstances
surrounding the initial PPP loans. We have also communicated with the Department of Justice through a letter, outlining the reasons for our eligibility and await a response. If the U.S. subsidiaries were not eligible for those loans, the Company will
likely be required to return the proceeds of those loans, pay interest, and may be subject to enforcement proceedings. This may result in adverse publicity and damage to our reputation and have a material adverse effect on our results of operations
and financial condition.
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The Nasdaq Global Select Market imposes listing standards on our ADSs that we may not be able to fulfill in the future, thereby leading to a possible delisting of our ADSs.
As a listed Nasdaq Global Select Market company, we are subject to various listing standards. There can be no assurance that we will be able to meet all of the criteria necessary
for Nasdaq to allow our ADSs to remain listed.
On March 19, 2025, we received two deficiency letters from the Listing Qualifications Department of Nasdaq (the “Staff”). One deficiency letter notified us that we are not in
compliance with the minimum market value of publicly held shares (“MVPHS”) requirement of the Nasdaq Listing Rules applicable to companies listed on the Nasdaq Global Select Market. For continued listing, companies are required to maintain a minimum
MVPHS of $15 million. A failure to meet the minimum MVPHS requirement exists if the deficiency continues for a period of 30 consecutive business days. The other deficiency letter notified us that for the preceding 30 consecutive business days, the
ADSs did not maintain a minimum closing bid price of $1.00 (the “Minimum Bid Price”) per ADS, as required by Nasdaq Listing Rule 5450(a)(1).
In accordance with the Nasdaq Listing Rules, we have 180 calendar days from the date of the deficiency notices, or until September 10, 2025, to regain compliance with the minimum
MVPHS requirement and the Minimum Bid Price requirement.
To regain compliance with the MVPHS requirement, the Company’s MVPHS must exceed $15 million for a minimum of ten consecutive business days. If the Company does not regain
compliance with the minimum MVPHS requirement by September 10, 2025, Nasdaq will provide written notification to the Company that its 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.
To regain compliance with the Minimum Bid Price requirement, the closing bid price of the Company’s ADSs must meet or exceed US $1.00 for at least ten consecutive business days
during the 180-calendar day cure period. In the event the Company does not regain compliance with the Minimum Bid Price Requirement in that period, we may be eligible for an additional 180 calendar day grace period if we meet the continued listing
requirement for MVPHS and all other initial listing standards for The Nasdaq Capital Market, with the exception of the bid price and provide written notice to the Staff of our intention to cure the deficiency during the second compliance
period. However, if it appears to the Staff that we will not be able to cure the deficiency, or if we are otherwise not eligible, Nasdaq will provide notice to us that our ADSs will be subject to delisting.
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.
7
We have incurred substantial debt, which could impair our flexibility and access to capital and adversely affect our financial position.
As of December 31, 2024, we had total indebtedness of approximately US$83.4 million (carrying value under IFRS),
consisting of a senior secured term loan (the “Term Loan”) from Perceptive, a convertible note, a derivative liability related to warrants issued to Perceptive, lease liabilities and a residual amount owing for an exchangeable note which was
almost completely retired in 2022. The Term Loan, which is repayable in January 2026, had a principal outstanding amount of US$75.5 million as of December 31, 2024. In connection with the third amendment and restatement of the credit agreement
governing the Term Loan on December 23, 2024, we agreed that certain interest payments payable in 2024 and 2025 would be paid-in-kind on the applicable payment date by increasing the outstanding principal amount of the Term Loan. On February 27,
2025, we entered into the fourth amended and restated credit agreement, which provided for an additional US$4.0 million increase to our outstanding Term Loan. In addition, a deferred consideration payment of $5.0 million related to the
acquisition of the biosensor assets of Waveform has been extended to November 2025.
The convertible note, which was issued to MiCo and has a nominal outstanding amount of US$20.0 million, mandatorily converts into ADSs if the volume weighted average price of the
Company’s ADSs is at or above US$16.20 for any five consecutive trading days. The convertible note shall become immediately repayable at par together with any accrued interest, if the Company or any of its material subsidiaries ceases or threatens to
cease carrying on its business or a part of its business which is material to the Group, however, subject to the terms of an Investor Subordination Agreement between Perceptive and MiCo, MiCo shall not, without the prior written consent of
Perceptive, take any enforcement action with respect to the convertible note. Such enforcement actions include, inter alia, any MiCo action to enforce payment of or to collect the whole or any part of the convertible note.
As a result of the debt we have incurred, we may need to raise capital in one or more debt or equity offerings to fund our operations and obligations. There can be no assurance,
however, that we will be successful in raising the necessary capital or that any such offering will be available to us on terms acceptable to us, or at all. If we are unable to raise additional capital that may be needed on terms in sufficient
amounts or on terms acceptable to us, it could have a material adverse effect on our company and we may have to significantly delay, scale back or discontinue our deliveries under our outstanding customer purchase orders or the development or
commercialization of one or more of our products or one or more of our other research and development initiatives, sell assets and/or cease trading.
Our debt may:
| • |
require us to use a substantial portion of our cash flow from operations to make debt service payments;
|
| • |
limit our ability to use our cash flow or obtain additional financing for working capital, capital expenditures, acquisitions or other general business purposes;
|
| • |
limit our flexibility to plan for, or react to, changes in our business and industry;
|
| • |
result in dilution to our existing shareholders in the event we issue equity to fund our debt obligations;
|
| • |
place us at a competitive disadvantage compared to our less leveraged competitors; and
|
| • |
increase our vulnerability to the impact of adverse economic and industry conditions.
|
To the extent we are unable to repay our debt as it becomes due with cash on hand or from other sources, we will need to refinance our debt, sell assets or repay the debt with the
proceeds from equity offerings in order to continue in business. Additional indebtedness or equity financing may not be available to us in the future for the refinancing or repayment of existing debt, or if available, such additional debt or equity
financing may not be available on a timely basis, or on terms acceptable to us and within the limitations specified in our then existing debt instruments. In addition, in the event we decide to sell additional assets, we can provide no assurance as
to the timing of any asset sales or the proceeds that could be realized by us from any such asset sale. Our ability to obtain additional funding may determine our ability to continue as a going concern.
8
Certain of our customers are dependent on continued U.S. government funding, which may not be made on a timely basis or at all and such funding cuts or delays
could have an adverse effect on our business.
The Company is continuously monitoring the potential impact of the U.S. President’s Executive Order on Reevaluating and Realigning United
States Foreign Aid, and resulting suspensions or termination of funding to HIV testing programs that utilize the Company’s two rapid HIV tests. On January 20, 2025, the U.S. government paused, subject to certain exemptions, all new funding
obligations and sub-obligations of funding of foreign assistance programs, pending a 90-day review of such foreign assistance programs. Although the U.S. government introduced a temporary waiver of the aforementioned funding pause for certain
assistance, which the U.S. government later confirmed applied to funding for HIV testing under the President's Emergency Plan for AIDS Relief (PEPFAR), that waiver is temporary, and there can be no assurance that U.S. government funding for HIV
programs that utilize the Company’s rapid HIV tests will continue. Since the Executive Order, the Company has seen disruptions to ordering patterns and demand for our rapid HIV tests, and it remains unclear at this time what impact these changes
will have on the timing and quantity of rapid HIV tests sold by the Company, and the receipt of funds for the sale of such tests.
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 1.79 million ADSs; and Perceptive’s Warrants entitle it to purchase up to an additional 2.5 million ADSs, representing, in the
aggregate, 85.8 million of our A Ordinary Shares. The sale of those 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.
9
We will not receive the proceeds from the resale of the ADSs by Perceptive. We may receive up to an aggregate of $2,000,000 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 September 30, 2024, 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) (i) the
issuance of 1,730,603 ADSs in connection with the acquisition of Epicapture Limited on October 22, 2024, (ii) the issuance of 1,399,985 ADSs on October 10, 2024 in connection with our investment in Novus Diagnostics, (iii) the issuance of 361,892
ADSs to Native Design Limited on October 10, 2024 pursuant to a design services agreement, (iv) the issuance of 650,000 ADSs to Craig Hallum on October 10, 2024 pursuant to an advisory agreement, (v) to capitalization of certain paid-in-kind
interest payments pursuant to the third amendment and restatement of the credit agreement governing the Term Loan, (vi) the issuance of 1,343,821 ADSs pursuant to the ATM Program from October 1, 2024 through March 21, 2025, and (B) the Fourth
Amendment Borrowing, in each case as if they had occurred on September 30, 2024.
|
|
As of September 30, 2024
|
|||||||
|
US’000
|
Actual
|
As Adjusted(1)
|
||||||
|
Cash
|
$ |
2,840
|
$ |
10,005
|
||||
|
Debt Outstanding:
|
||||||||
|
Exchangeable Notes (at nominal amount)
|
$
|
210
|
$
|
210
|
||||
|
Term Loan (at nominal amount)
|
$ |
70,200
|
$
|
82,038
|
||||
|
Convertible Note (at nominal amount)
|
$ |
20,000
|
$
|
20,000
|
||||
|
|
||||||||
|
Equity:
|
||||||||
|
A Ordinary Shares, par value $0.0109 per share
|
$
|
2,377
|
$
|
3,573
|
||||
|
Share Premium
|
$
|
57,519
|
$
|
64,640
|
||||
|
Treasury shares
|
$
|
(24,922
|
)
|
$
|
(24,922
|
)
|
||
|
Reserves
|
$
|
984
|
$
|
984
|
||||
|
Accumulated deficit
|
$
|
(62,300
|
)
|
$
|
(63,425
|
)
|
||
|
Total shareholders’ equity
|
$
|
(19,624
|
)
|
$
|
(19,150
|
)
|
||
|
Total Capitalization
|
$
|
64,068
|
$
|
83,099
|
||||
| (1) |
The number of A Ordinary Shares issued and outstanding excludes: 48,506,672 A Ordinary Shares issuable upon exercise of outstanding stock options at
exercise prices that range from US$0.12-US$1.29 per share; 51,200,000 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.
|
10
We are registering the resale of 4.29 million ADSs (representing 85.8 million A Ordinary Shares), including 2.5 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)
|
|
|
18.3% (2)
|
|
|
|
85.8 million A Ordinary Shares (represented by 4.29 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 85.8 million A Ordinary Shares, including (a) 35.8 million A Ordinary Shares represented by 1.79 million ADSs of the selling shareholder and (b) 50 million A Ordinary Shares
represented by 2.5 million ADSs that may be acquired upon full exercise of the Warrants of the selling shareholder, although the exercise of the Warrants is subject to a 9.99% beneficial ownership cap.
|
| (3) |
Assuming full exercise of the Warrants.
|
| (4) |
Assuming all ADSs representing A Ordinary Shares being registered for resale hereunder are sold.
|
11
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.
12
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.
13
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
|
$
|
446
|
|
|
|
EDGAR and printing fees
|
$
|
1,000
|
||
|
Legal fees and expenses
|
$
|
10,000
|
||
|
Accounting fees and expenses
|
$
|
5,500
|
||
|
Miscellaneous
|
$
|
2,000
|
||
|
Total
|
$
|
18,946
|
|
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 audited consolidated financial statements of Trinity Biotech Plc incorporated by reference in this
prospectus and elsewhere in the registration statement have been so incorporated by reference 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.
The audited Statement of Assets Acquired and Liabilities Assumed with respect to the asset acquisition of Waveform Technologies, Inc. incorporated
by reference in this prospectus and elsewhere in the registration statement have been so incorporated by reference in reliance on the report of Grant Thornton, as independent auditors, upon the authority of said firm as experts in auditing
and accounting.
14
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;
|
|
|
●
|
Our Reports on Form 6-K furnished to the Commission on April 30, 2024, May 16, 2024, May 28, 2024, July 11, 2024, July 12, 2024, August 7, 2024, August 7, 2024, August 20, 2024, August 21, 2024, August 29, 2024, September 5, 2024 (with materials
relating to the Company’s annual general meeting), September
23, 2024, September 25, 2024, September 30, 2024,
October 2, 2024, October 25, 2024 (with respect to each of the EpiCapture acquisition and the Novus investment), November 7, 2024, November 15, 2024, December 26, 2024, January 28, 2025, January 29, 2025, February 4, 2025, February 6, 2025, February 28, 2025, March 13, 2025 and March 14, 2025; and
|
|
|
●
|
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, County 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.
15
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, in certain circumstances, refuse to enforce a judgment of the U.S. courts which meets
the above requirements, including: (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.
16
TRINITY BIOTECH PLC
4,290,000 American Depositary Shares
representing
85,900,000 A Ordinary Shares
PROSPECTUS
March 21, 2025
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)
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The undersigned registrant hereby undertakes:
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to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the “Securities Act”);
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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
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| (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;
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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.
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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.
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| (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.
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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.
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| (5) |
that, for the purpose of determining any liability under the Securities Act to any purchaser:
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| (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
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| (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.
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| (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:
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| (i) |
any preliminary prospectus or prospectus of the undersigned registrant to the offering required to be filed pursuant to Rule 424;
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| (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;
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| (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
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| (iv) |
any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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| (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.
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| (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.
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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 County Wicklow, Ireland, on March 21, 2025.
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TRINITY BIOTECH PLC
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By:
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/s/ John Gillard
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John Gillard
Chief Executive Officer
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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 March 21, 2025 by or on behalf of the
following persons in the capacities indicated.
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Signature
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Title
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| /s/ John Gillard |
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Chief Executive Officer (Principal Executive Officer), and Director
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John Gillard
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| /s/ Louise Tallon |
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Chief Financial Officer, and Company Secretary
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Louise Tallon
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| /s/ James Walsh |
Director
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James Walsh
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| /s/ Ronan O’Caoimh |
Director
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Ronan O’Caoimh
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| /s/ Thomas Lindsay |
Director
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Thomas Lindsay
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| /s/ Andrew Omidvar |
Director
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Andrew Omidvar
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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 March 21, 2025.
Puglisi & Associates
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By:
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/s/ Donald J. Puglisi | |
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Name:
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Donald J. Puglisi
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Title:
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Managing Director
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II - 5
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Exhibit No.
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Description of Exhibit
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II - 6
Exhibit 4.4
Execution Version
Second Amendment to Warrant Certificate
This Second Amendment to Warrant Certificate, dated as of January 30, 2024 (this “Amendment”),
is entered into by and among TRINITY BIOTECH PLC, a public limited company organized and existing under the laws of Ireland (the “Company”) and PERCEPTIVE CREDIT HOLDINGS III, LP, a Delaware limited
partnership (the “Holder”).
Recitals
WHEREAS, the Company issued to the Holder that certain Warrant To Purchase American Depositary Shares represented by American
Depositary Receipts, dated as of January 27, 2022, as amended by that certain First Amendment to Warrant Certificate, dated February 21, 2023, by and among the Company and the Holder and this Amendment, (the “Warrant”).
Capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed thereto in the Warrant.
WHEREAS, in connection with that certain Second Amended and Restated Credit Agreement and Guaranty, dated as of January 30, 2024 (the
“Credit Agreement”), by and among TRINITY BIOTECH, INC., a Delaware corporation (“U.S. Holdings”) and the other borrowers party thereto, the Guarantors party thereto,
the Lenders party thereto, and PERCEPTIVE CREDIT HOLDINGS III, LP as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), the Company and the Holder have agreed to amend
certain provisions of the Warrant.
WHEREAS, the Company and the Holder are willing to make such amendments to the Warrant as are further described herein, in accordance with
and subject to the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and the agreements herein set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
| 1 |
Amendment to Warrant. Concurrently with the effectiveness of the Credit Agreement (the “Effective Date”):
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| 1.1 |
Section 2(b) of the Warrant is hereby amended to state in its entirety to read as follows:
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“Exercise Price. The exercise price per ADS under this Warrant shall be $0.4399, subject to adjustment hereunder (the “Exercise Price”).”
| 2 |
Covenants. If the Company determines that the terms of this Amendment require an amendment to the currently-effective Resale Registration Statement governing the Registrable Securities issuable
upon exercise of the Warrant to reflect the revised Exercise Price set forth in this Amendment (such amendment, an “F-3 Amendment”), then no later than April 30, 2024, the Company shall prepare and
file or shall cause to be prepared and filed with the Commission such F-3 Amendment. The F-3 Amendment (if any) shall be in form and substance reasonably acceptable to the Holder, and the Company shall use its reasonable best efforts to
cause such F-3 Amendment to be declared effective as soon as possible after filing. For the avoidance of doubt, the provisions of Section 13.03(b) of the Credit Agreement shall apply to any Claims or Losses suffered by an Indemnified Party
(each as defined in the Credit Agreement) arising from or relating to any misstatement or omission contained in the Resale Registration Statement, the F-3 Amendment, and any prospectus contained in such Resale Registration Statement, any
further amendment or supplement thereto, or any violation by the Company of the Securities Act or any rule or regulation promulgated thereunder applicable to the Company or any state securities (or Blue Sky) law, rule or regulation and
relating to action or inaction required of the Company in connection with any such registration.
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| 3 |
Effect of Amendment. On and after the date hereof, each reference in the Warrant to “this Warrant”, “hereunder”, “hereof”, “herein” or words of like import referring to the Warrant, shall mean and
be a reference to the Warrant after giving effect to this Amendment. Except as specifically set forth in this Amendment, the Warrant remains in full force and effect and is hereby ratified and confirmed.
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| 4 |
Governing Law. This Amendment, and all questions concerning the construction, validity, enforcement and interpretation of the Amendment, shall be governed by and construed and enforced in
accordance with the internal laws of the State of New York.
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| 5 |
Counterparts. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an
original, and all of which, when taken together, shall constitute but one and the same Amendment. Delivery of an executed counterpart of this Amendment by facsimile, DocuSign or a scanned copy by electronic mail shall be equally as
effective as delivery of an original executed counterpart of this Amendment.
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| 6 |
Binding Effect. This Amendment will be binding upon and inure to the benefit of and is enforceable by the respective successors and permitted assigns of the parties hereto.
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| 7 |
Incorporation By Reference. The provisions set forth in Sections 6(h) (Submission to Jurisdiction), 6(i) (Waiver of Venue, Etc.), and 6(j) (Waiver of Jury Trial) of the Warrant shall apply to this
Amendment in all respects.
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[Remainder of page intentionally left blank; signatures on following pages]
2
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by its officer thereunto duly authorized as a Deed on the date first above indicated.
SIGNED AND DELIVERED for on behalf of and as the deed of TRINITY BIOTECH PLC by its lawfully appointed attorney John Gillard in the presence of:
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/s/ Desmond Fitzgerald
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Signature of Witness
Desmond Fitzgerald
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Name of Witness
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Address of Witness
Accountant
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Occupation of Witness
/s/ John Gillard
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Signature of Attorney
John Gillard
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Prine Name of Attorney
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Address for Notices:
Trinity Biotech plc
IDA Business Park,
Bray, Co. Wicklow, Ireland
A98 H5C8
Attention: John Gillard, CEO
Telephone: +353 1 276 9800
Email: Lennotice@trinitybiotech.com
With a copy to (which shall not constitute notice):
Carter Ledyard & Milburn LLP
2 Wall Street, New York, NY 10005
Attention: Steven J. Glusband, Esq.
Email: glusband@clm.com
[Signature Page to Warrant Amendment]
Accepted and Agreed,
Perceptive Credit Holdings III, LP
By: Perceptive Credit Opportunities GP, LLC, its general partner
By: Perceptive Credit Opportunities GP, LLC, its general partner
| By: | /s/Sandeep Dixit | |
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Name: Sandeep Dixit
Title: Chief Credit Officer
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| By: | /s/ Sam Chawla | |
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Name: Sam Chawla
Title: Portfolio Manager
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Address for Notices:
c/o Perceptive Advisors
LLC 51 Astor Place, 10th Floor
New York, NY 10003
Attn: Sandeep Dixit
Email: Sandeep@perceptivelife.com
PCOFReporting@perceptivelife.com
with a copy to (which shall not constitute notice):
Chapman and Cutler LLP
1270 Avenue of the Americas
30th Floor
New York, New York 10020-1708
Attention: Nicholas Whitney
E-mail: Whitney@chapman.com
[Signature Page to Warrant Amendment]
Exhibit 4.5
Execution Version
Third Amendment to Warrant Certificate
This Third Amendment to Warrant Certificate, dated as of December 23, 2024 (this “Amendment”), is entered into by and among TRINITY BIOTECH PLC, a public limited company organized and existing under the laws of Ireland (the “Company”) and PERCEPTIVE
CREDIT HOLDINGS III, LP, a Delaware limited partnership (the “Holder”).
Recitals
WHEREAS, the Company issued to the Holder that certain Warrant To Purchase American
Depositary Shares represented by American Depositary Receipts, dated as of January 27, 2022, as amended by that certain First Amendment to Warrant Certificate, dated February 21, 2023, and that certain Second Amendment to Warrant Certificate,
dated January 30, 2024, by and among the Company and the Holder and this Amendment, (the “Warrant”). Capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed thereto
in the Warrant.
WHEREAS, in connection with that certain Third Amended and Restated Credit Agreement and
Guaranty, dated as of December 23, 2024 (the “Credit Agreement”), by and among TRINITY BIOTECH, INC., a Delaware corporation (“U.S. Holdings”) and the other
borrowers party thereto, the Guarantors party thereto, the Lenders party thereto, and PERCEPTIVE CREDIT HOLDINGS III, LP as administrative agent for the Lenders (in such capacity, the “Administrative Agent”),
the Company and the Holder have agreed to amend certain provisions of the Warrant.
WHEREAS, the Company and the Holder are willing to make such amendments to the Warrant as
are further described herein, in accordance with and subject to the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and the agreements
herein set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
| 1 |
Amendment to Warrant. Concurrently with the effectiveness of the Credit Agreement (the “Third Amendment Restatement Date”):
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| 1.1 |
Section 2(b) of the Warrant is hereby amended to state in its entirety to read as follows:
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“Exercise Price. The exercise price per ADS under this Warrant shall be $0.8000, subject to adjustment hereunder (the “Exercise Price”).”
| 2 |
Covenants. If the Company determines that the terms of this Amendment require an amendment to the currently-effective Resale Registration Statement governing the Registrable Securities issuable
upon exercise of the Warrant to reflect the revised Exercise Price set forth in this Amendment (such amendment, an “F-3 Amendment”), then no later than April 30, 2025, the Company shall prepare and
file or shall cause to be prepared and filed with the Commission such F-3 Amendment. The F-3 Amendment (if any) shall be in form and substance reasonably acceptable to the Holder, and the Company shall use its reasonable best efforts to
cause such F-3 Amendment to be declared effective as soon as possible after filing. For the avoidance of doubt, the provisions of Section 13.03(b) of the Credit Agreement shall apply to any Claims or Losses suffered by an Indemnified
Party (each as defined in the Credit Agreement) arising from or relating to any misstatement or omission contained in the Resale Registration Statement, the F-3 Amendment, and any prospectus contained in such Resale Registration
Statement, any further amendment or supplement thereto, or any violation by the Company of the Securities Act or any rule or regulation promulgated thereunder applicable to the Company or any state securities (or Blue Sky) law, rule or
regulation and relating to action or inaction required of the Company in connection with any such registration.
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| 3 |
Effect of Amendment. On and after the date hereof, each reference in the Warrant to “this Warrant”, “hereunder”, “hereof”, “herein” or words of like import referring to the Warrant, shall mean
and be a reference to the Warrant after giving effect to this Amendment. Except as specifically set forth in this Amendment, the Warrant remains in full force and effect and is hereby ratified and confirmed.
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| 4 |
Governing Law. This Amendment, and all questions concerning the construction, validity, enforcement and interpretation of the Amendment, shall be governed by and construed and enforced in
accordance with the internal laws of the State of New York.
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| 5 |
Counterparts. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an
original, and all of which, when taken together, shall constitute but one and the same Amendment. Delivery of an executed counterpart of this Amendment by facsimile, DocuSign or a scanned copy by electronic mail shall be equally as
effective as delivery of an original executed counterpart of this Amendment.
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| 6 |
Binding Effect. This Amendment will be binding upon and inure to the benefit of and is enforceable by the respective successors and permitted assigns of the parties hereto.
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| 7 |
Incorporation By Reference. The provisions set forth in Sections 6(h) (Submission to Jurisdiction), 6(i) (Waiver of Venue, Etc.), and 6(j) (Waiver of Jury Trial) of the Warrant shall apply to
this Amendment in all respects.
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[Remainder of page intentionally left blank; signatures on following pages]
2
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by its officer thereunto duly authorized as a Deed on the date first above indicated.
SIGNED AND DELIVERED for on behalf of and as the deed of TRINITY BIOTECH PLC by its lawfully appointed attorney John Gillard in the presence of:
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/s/ Louise Tallon
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Signature of Witness
Louise Tallon
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Name of Witness
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Address of Witness
CFO
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Occupation of Witness
/s/ John Gillard
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Signature of Attorney
John Gillard
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Prine Name of Attorney
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Address for Notices:
Trinity Biotech plc
IDA Business Park,
Bray, Co. Wicklow, Ireland
A98 H5C8
Attention: John Gillard, CEO
Telephone: +353 1 276 9800
Email: Lennotice@trinitybiotech.com
With a copy to (which shall not constitute notice):
Carter Ledyard & Milburn LLP
28 Liberty Street, New York, NY 10005
Attention: Steven J. Glusband, Esq.
Email: glusband@clm.com
[Signature Page to Warrant Amendment]
Accepted and Agreed,
Perceptive Credit Holdings III, LP
By: Perceptive Credit Opportunities GP, LLC, its general partner
| By: | /s/Sandeep Dixit | |
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Name: Sandeep Dixit
Title: Chief Credit Officer
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| By: | /s/ Sam Chawla | |
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Name: Sam Chawla
Title: Portfolio Manager
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Address for Notices:
c/o Perceptive Advisors LLC
51 Astor Place, 10th Floor
New York, NY 10003
Attn: Sandeep Dixit
Email: Sandeep@perceptivelife.com
PCOFReporting@perceptivelife.com
with a copy to (which shall not constitute notice):
Chapman and Cutler LLP
1270 Avenue of the Americas
30th Floor
New York, New York 10020-1708
Attention: Nicholas Whitney
E-mail: Whitney@chapman.com
[Signature Page to Warrant Amendment]
Exhibit 4.7
Execution Version
First Amendment to Warrant Certificate
This First Amendment to Warrant Certificate, dated as of December 23, 2024 (this “Amendment”),
is entered into by and among TRINITY BIOTECH PLC, a public limited company organized and existing under the laws of Ireland (the “Company”) and PERCEPTIVE CREDIT HOLDINGS III, LP, a Delaware limited
partnership (the “Holder”).
Recitals
WHEREAS, the Company issued to the Holder that certain Warrant To Purchase American Depositary Shares represented by American Depositary
Receipts, dated as of January 30, 2024, as amended by this Amendment, (the “Warrant”). Capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed thereto in the
Warrant.
WHEREAS, in connection with that certain Third Amended and Restated Credit Agreement and Guaranty, dated as of December 23, 2024 (the “Credit Agreement”), by and among TRINITY BIOTECH, INC., a Delaware corporation (“U.S. Holdings”) and the other borrowers party thereto, the Guarantors party thereto,
the Lenders party thereto, and PERCEPTIVE CREDIT HOLDINGS III, LP as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), the Company and the Holder have agreed to amend
certain provisions of the Warrant.
WHEREAS, the Company and the Holder are willing to make such amendments to the Warrant as are further described herein, in accordance
with and subject to the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and the agreements herein set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
| 1 |
Amendment to Warrant. Concurrently with the effectiveness of the Credit Agreement (the “Third Amendment Restatement Date”):
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| 1.1 |
Section 2(b) of the Warrant is hereby amended to state in its entirety to read as follows:
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“Exercise Price. The exercise price per ADS under this Warrant shall be $0.8000, subject to adjustment hereunder (the “Exercise Price”).”
| 2 |
Covenants. If the Company determines that the terms of this Amendment require an amendment to the currently-effective Resale Registration Statement governing the Registrable Securities issuable
upon exercise of the Warrant to reflect the revised Exercise Price set forth in this Amendment (such amendment, an “F-3 Amendment”), then no later than April 30, 2025, the Company shall prepare and
file or shall cause to be prepared and filed with the Commission such F-3 Amendment. The F-3 Amendment (if any) shall be in form and substance reasonably acceptable to the Holder, and the Company shall use its reasonable best efforts to
cause such F-3 Amendment to be declared effective as soon as possible after filing. For the avoidance of doubt, the provisions of Section 13.03(b) of the Credit Agreement shall apply to any Claims or Losses suffered by an Indemnified
Party (each as defined in the Credit Agreement) arising from or relating to any misstatement or omission contained in the Resale Registration Statement, the F-3 Amendment, and any prospectus contained in such Resale Registration
Statement, any further amendment or supplement thereto, or any violation by the Company of the Securities Act or any rule or regulation promulgated thereunder applicable to the Company or any state securities (or Blue Sky) law, rule or
regulation and relating to action or inaction required of the Company in connection with any such registration.
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| 3 |
Effect of Amendment. On and after the date hereof, each reference in the Warrant to “this Warrant”, “hereunder”, “hereof”, “herein” or words of like import referring to the Warrant, shall mean
and be a reference to the Warrant after giving effect to this Amendment. Except as specifically set forth in this Amendment, the Warrant remains in full force and effect and is hereby ratified and confirmed.
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| 4 |
Governing Law. This Amendment, and all questions concerning the construction, validity, enforcement and interpretation of the Amendment, shall be governed by and construed and enforced in
accordance with the internal laws of the State of New York.
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| 5 |
Counterparts. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an
original, and all of which, when taken together, shall constitute but one and the same Amendment. Delivery of an executed counterpart of this Amendment by facsimile, DocuSign or a scanned copy by electronic mail shall be equally as
effective as delivery of an original executed counterpart of this Amendment.
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| 6 |
Binding Effect. This Amendment will be binding upon and inure to the benefit of and is enforceable by the respective successors and permitted assigns of the parties hereto.
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| 7 |
Incorporation By Reference. The provisions set forth in Sections 6(h) (Submission to Jurisdiction), 6(i) (Waiver of Venue, Etc.), and 6(j) (Waiver of Jury Trial) of the Warrant shall apply to
this Amendment in all respects.
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[Remainder of page intentionally left blank; signatures on following pages]
2
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by its officer thereunto duly authorized as a Deed on the date first above indicated.
SIGNED AND DELIVERED for on behalf of and as the deed of TRINITY BIOTECH PLC by its lawfully appointed attorney John Gillard in the presence of:
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/s/ Louise Tallon
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Signature of Witness
Louise Tallon
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Name of Witness
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Address of Witness
CFO
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Occupation of Witness
/s/ John Gillard
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Signature of Attorney
John Gillard
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Prine Name of Attorney
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Address for Notices:
Trinity Biotech plc
IDA Business Park,
Bray, Co. Wicklow, Ireland
A98 H5C8
Attention: John Gillard, CEO
Telephone: +353 1 276 9800
Email: Lennotice@trinitybiotech.com
With a copy to (which shall not constitute notice):
Carter Ledyard & Milburn LLP
28 Liberty Street, New York, NY 10005
Attention: Steven J. Glusband, Esq.
Email: glusband@clm.com
[Signature Page to Warrant Amendment]
Accepted and Agreed,
Perceptive Credit Holdings III, LP
By: Perceptive Credit Opportunities GP, LLC, its general partner
| By: | /s/Sandeep Dixit | |
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Name: Sandeep Dixit
Title: Chief Credit Officer
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| By: | /s/ Sam Chawla | |
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Name: Sam Chawla
Title: Portfolio Manager
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Address for Notices:
c/o Perceptive Advisors LLC
51 Astor Place, 10th Floor
New York, NY 10003
Attn: Sandeep Dixit
Email: Sandeep@perceptivelife.com
PCOFReporting@perceptivelife.com
with a copy to (which shall not constitute notice):
Chapman and Cutler LLP
1270 Avenue of the Americas
30th Floor
New York, New York 10020-1708
Attention: Nicholas Whitney
E-mail: Whitney@chapman.com
[Signature Page to Warrant Amendment]
Exhibit 4.8
Execution Version
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS MAY BE REQUIRED TO BE EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF
THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT.
WARRANT TO PURCHASE AMERICAN DEPOSITARY SHARES
REPRESENTED BY AMERICAN DEPOSITARY RECEIPTS
TRINITY BIOTECH PLC
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Warrant ADSs: 1,000,000
Warrant No. 3
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Issue Date: December 23, 2024
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THIS WARRANT TO PURCHASE AMERICAN DEPOSITARY SHARES REPRESENTED BY AMERICAN DEPOSITARY RECEIPTS (this “Warrant” or “Warrant
Certificate”) certifies that, for value received, Perceptive Credit Holdings III, LP or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at
any time on or after the date hereof, and on or prior to the close of business on December 23, 2031 (the “Expiration Date”), but not thereafter, to purchase from Trinity Biotech PLC, a public limited company organized and existing under
the laws of Ireland (the “Company”), and the Company shall be obliged to cause the issuance, of up to one million (1,000,000) American Depositary Shares of the Company (“ADSs”), with each ADS being represented by one American
Depositary Receipt issued by the Depositary (“ADR”), each of which in turn represents four “A” Ordinary Shares of the Company (the “ADS Ratio”) (as subject to adjustment hereunder the “Warrants ADSs”). The purchase price of one ADS,
represented by one ADR, issuable under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
This Warrant is issued pursuant to that certain Third Amended and Restated Credit Agreement and Guaranty dated as of December 23, 2024 (the “Credit
Agreement”) by and among Trinity Biotech, Inc., a Delaware corporation (“U.S. Holdings”), Fitzgerald Industries International, Inc., a Delaware corporation (“U.S. Fitzgerald”), Clark Laboratories, Inc. (d/b/a as Trinity
Biotech (USA)), a New York corporation (“U.S. Clark”), MarDx Diagnostics, Inc., a California corporation (“U.S. MarDx”), Biopool U.S., Inc., a Delaware corporation (d/b/a Trinity Biotech
Distribution) (“U.S. Biopool”), Primus Corporation, a Missouri corporation (“U.S. Primus”), IMMCO Diagnostics, Inc., a Delaware corporation (“U.S. Immco”), TRIB Biosensors Inc., a Delaware corporation (“U.S. TRIB” and
together with U.S. Holdings, U.S. Fitzgerald, U.S. Clark, U.S. Mardx, U.S. Biopool, U.S. Primus and U.S. Immco, each a “Borrower” and collectively, the “Borrowers”), certain guarantors party thereto from time to time, the lenders from time to time party thereto, and Perceptive Credit Holdings III, LP, as administrative agent (in such capacity, together with its successors and assigns, “Administrative Agent”).
Section 1. Definitions. For the purposes hereof, in addition to the terms defined elsewhere in this Warrant, (a)
capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Credit Agreement, and (b) the following terms shall have the following meanings:
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is
under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Commission” means the United States Securities and Exchange Commission.
“Companies Act” means the Companies Act of 2014 of Ireland (as amended).
“Convertible Securities” means any debt, equity or other securities that are, directly or indirectly, convertible into or exchangeable for Ordinary Shares or ADSs or
ADRs.
“Depositary” means The Bank of New York Mellon, a New York banking corporation, as depositary for the ADSs and the issuer of the
ADRs.
“Excluded Issuance” means the issuance of (a) Ordinary Shares or ADSs (or options with respect thereto) issued or issuable to
employees or directors of, or consultants to, the Company or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board of Directors of the Company, (b) warrants issued pursuant to the Credit Agreement and/or other
securities exercisable or exchangeable for or convertible into Ordinary Shares or ADSs issued and outstanding on the date of this Warrant, provided that such securities have not been amended since the
date of this Warrant to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (for purposes of clarity, any decrease in the exercise price, exchange price or conversion
price of such securities shall not be deemed an amendment thereto, if such decrease is as a result of any price-based anti-dilution provision contained in such securities prior to the date hereof), and (c) other securities issued to financial
institutions, institutional investors or lessors in connection with credit arrangements, equipment financings or similar transactions (and not for the purpose of raising capital) approved by a majority of disinterested directors of the Company.
In addition, for the avoidance of doubt, “Excluded Issuances” also include the filing of any registration statement of the Company with the Commission registering securities of the Company, or the filing of any amendments or supplements thereto,
provided that the determination of whether sales under any such registration statement is an Excluded Issuance will be determined based on the preceding clauses (a) to (c) hereof.
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“Fundamental Transaction” means (a) the Company, directly or indirectly, in one or more related transactions effects any merger or
consolidation of the Company with or into another Person, (b) the Company, directly or indirectly, effects any sale, lease, exclusive license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one
or a series of related transactions, (c) any, direct or indirect, purchase offer, scheme of arrangement, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares, ADRs or
ADSs are permitted to sell, tender, agree to cancel or exchange their shares for other securities, cash or property and has been accepted by the holders of fifty percent (50%) or more of the outstanding security holders of the Company (or, in the
case of a scheme of arrangement, the requisite majority to approve such scheme), (d) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares
or ADSs (but, for the avoidance of doubt, excluding any transaction, event or occurrence covered by Section 3(a)) or any compulsory share exchange pursuant to which the Ordinary Shares or ADSs are effectively converted into or exchanged
for other securities, cash or property, (e) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization,
recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than fifty percent (50%) of the outstanding voting shares of the Company (not including any shares held by the other Person or other
Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination).
“Marketable Securities” means securities that (a) are tradable on an established national U.S. stock exchange or reported through
an established over-the-counter trading system and (b) are not subject to restrictions on transfer under the Securities Act, the Companies Act or contractual restrictions on transfer.
“Options” means any warrants or other rights or options to subscribe for or purchase Ordinary Shares or Convertible Securities.
“Ordinary Shares” means the “A” ordinary shares of the Company, par value USD $0.0109 per share, and any other class of securities
into which such securities may hereafter be reclassified or changed.
“Person” means any individual, sole proprietorship, partnership, limited liability company, corporation, joint venture, trust,
incorporated organization or government or department or agency thereof.
“Prospectus” means the prospectus or prospectuses included in any Registration Statement, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and by all other amendments and supplements to the prospectus, including post-effective amendments
and all material incorporated by reference in such prospectus or prospectuses.
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“Registrable Securities” means (a) any ADSs (represented by ADRs), or Ordinary Shares held by Holder or issuable upon conversion,
exercise or exchange of any securities owned by Holder at any time (including Warrant ADSs exercisable upon exercise of this Warrant), and (b) any ADSs (represented by ADRs) or Ordinary Shares issued or issuable with respect to any shares
described in subsection (a) above by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization (it being understood that for purposes of this Warrant,
Holder shall be deemed to be a holder of Registrable Securities whenever Holder has the right to then acquire or obtain from the Company any Registrable Securities, whether or not such acquisition has actually been effected). As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities when (i) a Registration Statement covering such securities has been declared effective by the SEC and such securities have been disposed of pursuant to such
effective Registration Statement, (ii) such securities are sold under circumstances in which all of the applicable conditions of Rule 144 (or any similar provisions then in force) under the Securities Act are met, (iii) such securities are
otherwise transferred and such securities may be resold without subsequent registration under the Securities Act, or (iv) such securities shall have ceased to be outstanding.
“Registration Statement” means any registration statement of the Company which covers any of the Registrable Securities pursuant
to the provisions of this Warrant, including the Prospectus, amendments and supplements to or replacements of such Registration Statement, including post-effective amendments, all exhibits and all materials incorporated by reference in such
Registration Statement.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“Share Equivalents” means any securities of the Company or its wholly owned subsidiaries which would entitle the holder thereof to
acquire at any time Ordinary Shares or ADSs, including, without limitation, any debt, preferred stock, right, option, warrant, ADR or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles
the holder thereof to receive, Ordinary Shares or ADSs.
“Stock Deemed Outstanding” means, at any given time, the sum of (i) the number of Ordinary Shares and ADSs actually outstanding at
such time, plus (ii) the number of Ordinary Shares issuable upon exercise of Options actually outstanding at such time, plus (iii) the number of Ordinary Shares issuable upon conversion or exchange of Convertible Securities (including ADSs)
actually outstanding at such time (treating as actually outstanding any Convertible Securities issuable upon exercise of Options actually outstanding at such time), in each case, regardless of whether the Options or Convertible Securities are
actually exercisable at such time; provided that Stock Deemed Outstanding at any given time shall not include shares owned or held by or for the account of the Company or any of its wholly owned
subsidiaries.
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trading Market” means the Nasdaq Global Market (or any successor to the Nasdaq Global Market), or any national securities
exchange registered with the Commission on which the ADSs are listed and which is then the primary trading market for the ADSs.
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“Transfer Agent” means Computershare Investor Services (Ireland) Limited, the current transfer agent of the Company, and any
successor transfer agent of the Company.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the ADSs are then
listed or quoted on the Trading Market, the daily volume weighted average price of the ADSs for such date on the Trading Market on which the ADSs are then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New
York City time) to 4:00 p.m. (New York City time)), (b) if the ADSs are not then listed or quoted for trading on the Trading Market and if prices for the ADSs are then reported on the “Pink Market” of the OTC Markets Group, Inc. (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per ADS as reported, or (c) in all other cases, the fair market value of one ADS as determined by the Company and the Holder, provided that if the
Company and the Holder cannot agree on the fair market value of one ADS, such value shall be determined by an independent appraiser selected in good faith by the Holder and reasonably acceptable to the Company, the reasonable, actual and
documented fees and reasonable, actual and documented out-of-pocket expenses of which shall be paid by the Company.
Section 2. Exercise.
(a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times before the Expiration Date by delivery to the Company (or such other office or agency of the Company as it may
designate by notice in writing to the registered Holder at the address of the Holder appearing on the books of the Company) of a duly executed electronic copy of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”)
and within one (1) Trading Day of the date said Notice of Exercise is delivered to the Company, the Company shall have received payment of the aggregate Exercise Price of the Warrant ADSs thereby purchased by wire transfer or cashier’s check
drawn on a United States bank or pursuant to the cashless exercise procedure specified in Section 2(c) below. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or
notarization) of any Notice of Exercise form be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant
ADSs available hereunder and this Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date the final Notice of Exercise is delivered to
the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant ADSs available hereunder shall have the effect of lowering the outstanding number of Warrant ADSs purchasable hereunder in an
amount equal to the applicable number of Warrant ADSs purchased. The Holder and the Company shall maintain records showing the number of Warrant ADSs purchased and the date of such purchases. The Holder and any
assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant ADSs hereunder, the number of Warrant ADSs available for purchase hereunder
at any given time may be different than the amount stated on the face hereof. For the avoidance of doubt, the Holder may request a new Warrant upon the partial exercise of this Warrant.
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In the event that immediately prior to the close of business on the Expiration Date, the VWAP of one ADS is greater than the then applicable Exercise
Price, this Warrant shall be deemed to be automatically exercised as a “cashless exercise” pursuant to Section 2(c) below, and the Company or the Depositary, as applicable, shall deliver the applicable number of ADSs (represented by ADRs)
to the Holder pursuant to the provisions of Section 2(d) below.
(b) Exercise Price. The exercise price per ADS under this Warrant shall be $0.8000, subject to adjustment hereunder (the “Exercise Price”).
(c) Cashless Exercise. This Warrant may be exercised, in whole or in part, at any time by means of a “cashless exercise” in which the Holder
shall be entitled to receive a number of Warrant ADSs (represented by ADRs) equal to the quotient obtained by dividing [(A-B) (X)] by (A) (a “Cashless Exercise”), where:
(A) = the VWAP on the Trading Day immediately preceding the date on which Holder elects to exercise this Warrant by means of a “cashless exercise,” as set
forth in the applicable Notice of Exercise;
(B) = the Exercise Price, as adjusted hereunder; and
(X) = the number of Warrant ADSs (represented by ADRs) that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant
if such exercise were by means of a cash exercise rather than a cashless exercise or, if only a portion of this Warrant is being exercised, the portion of this Warrant being cancelled.
Notwithstanding any other provision of this Warrant, the issue of any Warrant ADSs (represented by ADRs) (or shares underlying such
Warrant ADSs) pursuant to any exercise or redemption of this Warrant (including any exercise or redemption made on a cashless basis pursuant to this Section 2(c) or otherwise) shall be conditional on the payment to the Company by the Holder,
whether by payment of the Exercise Price in cash or otherwise, of an amount in cash at least equal to the product of the nominal value of the “A” Ordinary Shares of the Company underlying the Warrant ADSs, the number of Warrant ADSs (represented
by ADRs) to be issued and the ADS Ratio.
If Warrant ADSs (represented by ADRs) are issued in such a cashless exercise, the parties acknowledge and agree that, in accordance with
Section 3(a)(9) of the Securities Act, the Warrant ADSs (represented by ADRs) shall take on the characteristics of the Warrants being exercised, and the holding period of the Warrant ADSs (represented by ADRs) being issued may be tacked on to the
holding period of this Warrant commencing as of the Issue Date. The Company agrees not to take any position contrary to this Section 2(c).
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Mechanics of Exercise.
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(i) Delivery of Warrant ADSs Upon Exercise. Warrant ADSs (represented by ADRs) purchased hereunder shall be transmitted by the Depositary to
the Holder by crediting the account of the Holder’s prime broker with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) and the Warrant ADSs (represented by ADRs) are eligible for resale by the
Holder without volume or manner-of-sale limitations pursuant to Rule 144 or an available Registration Statement, and otherwise by physical delivery to the address specified by the Holder in the Notice of Exercise by the date that is two (2)
Trading Days after the delivery to the Company, by 11 a.m. (local time in New York City, New York) on a Trading Day, of the Notice of Exercise and payment of the aggregate Exercise Price as set forth above (including by Cashless Exercise) (such
date, the “Warrant ADS Delivery Date”). The Warrant ADSs (represented by ADRs) shall be deemed to have been issued, and the Holder or any other person so designated to be named therein shall be deemed to have become a holder of record of
such Warrant ADSs (represented by ADRs) for all purposes, as of the date this Warrant has been exercised, with payment to the Company of the Exercise Price (or by Cashless Exercise) and all taxes required to be paid by the Holder, if any,
pursuant to Section 2(d)(v) prior to the issuance of such Warrant ADSs (represented by ADRs), having been paid. If the Company fails for any reason to deliver to the Holder the Warrant ADSs (represented by ADRs) subject to a Notice of
Exercise by the Warrant ADS Delivery Date, other than a failure to deliver caused by the Holder’s failure to pay the applicable Exercise Price for such Warrant ADSs or to timely take such actions as are necessary to post such Warrant ADSs
(represented by ADRs) in DWAC, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant ADSs (represented by ADRs) subject to such exercise (based on the VWAP on the date of the
applicable Notice of Exercise) $0.8000 per Trading Day for each Trading Day after such Warrant ADS Delivery Date until such Warrant ADSs (represented by ADRs) are delivered or Holder rescinds such exercise. The Company agrees to maintain a
registrar (which may be the Depositary) that is a participant in the “FAST” program for so long as this Warrant remains outstanding and exercisable.
(ii) Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder
and upon surrender of this Warrant certificate, at or promptly after the time of delivery of the Warrant ADSs (represented by ADRs), deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant ADSs
called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
(iii) Rescission
Rights. If the Company fails to cause the Depositary to transmit to the Holder the Warrant ADSs (represented by ADRs) pursuant to Section 2(d)(i) by the Warrant ADS Delivery Date, other than a failure to deliver caused by the
Holder’s failure to pay the applicable Exercise Price for such Warrant ADSs or to timely take such actions as are necessary to post such Warrant ADSs (represented by ADRs) in DWAC, then the Holder will have the right to rescind such exercise
and have its Exercise Price, if any, refunded by the Company.
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(iv) Compensation for
Buy-In on Failure to Timely Deliver Warrant ADSs Upon Exercise. In addition to any other rights available to the Holder, if the Company fails to cause the Depositary to transmit to the Holder the Warrant ADSs (represented by
ADRs) pursuant to an exercise on or before the Warrant ADS Delivery Date and such failure is not caused by any act or omission of the Holder, and if after such date the Holder is required by its broker to purchase (in an open market transaction
or otherwise) ADSs (represented by ADRs) to deliver in satisfaction of a sale by the Holder of the Warrant ADS (represented by ADRs) which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in
cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the ADSs (represented by ADRs) so purchased (provided, Holder exercises
reasonable efforts to minimize the amount of such purchase price) exceeds (y) the amount obtained by multiplying (1) the number of Warrant ADSs (represented by ADRs) that the Company was required to deliver to the Holder in connection with the
exercise at issue by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant ADSs
for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of ADSs (represented by ADRs) that would have been issued had the Company timely complied with its exercise and
delivery obligations hereunder. For example, if the Holder purchases ADSs (represented by ADRs) having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise to acquire Warrant ADSs (represented by ADRs) with an
aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy- In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in
equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Warrant ADSs (represented by ADRs) upon exercise of the Warrant as required pursuant to the
terms hereof.
(v) No Fractional ADSs
or Scrip. No fractional ADSs (represented by ADRs) or scrip representing fractional ADSs (represented by ADRs) shall be issued upon the exercise of this Warrant. As to any fraction of an ADS which the Holder would otherwise be entitled to
purchase upon such exercise, the Company shall round up to the next whole ADS (represented by and ADR).
(vi) Charges, Taxes
and Expenses. Subject to applicable law or regulation, the issuance of this Warrant and the Warrant ADSs (represented by ADRs) shall be made without charge to the Holder for any stamp duty, issue or transfer tax or other incidental
expense in respect of the issuance of this Warrant and Warrant ADSs (represented by ADRs) (but not any subsequent transfer of this Warrant or any Warrant ADSs (represented by ADRs) so issued), all of which taxes and expenses shall be paid by the
Company, and such Warrant ADSs (represented by ADRs) shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that in the event that Warrant ADSs (represented by ADRs) are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by a completed Assignment Form in the form attached hereto
duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all fees of the Depositary required for same-day
processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant ADSs (represented by ADRs).
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(vii) Closing of Books.
The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
(e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to this Section 2 or otherwise, to the extent that after
giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s
Affiliates), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of Ordinary Shares beneficially owned by the Holder and its Affiliates shall include the
number of Ordinary Shares underlying the Warrant ADSs with respect to which such determination is being made, but shall exclude the number of Ordinary Shares underlying the Warrant ADSs which would be issuable upon (i) exercise of the
remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates, and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without
limitation, any other Share Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates. Except as set forth in the preceding sentence,
for purposes of this Section 2(f), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company
is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the
limitation contained in this Section 2(f) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder
together with any Affiliates) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. In
addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(f),
in determining the number of outstanding Ordinary Shares, a Holder may rely on the number of outstanding shares of Ordinary Shares as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may
be, (B) a more recent public announcement by the Company, or (C) a more recent written notice from the Company or the Transfer Agent or the Depositary setting forth the number of Ordinary Shares outstanding. Upon the written request of a Holder,
the Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of Ordinary Shares then outstanding. In any case, the number of outstanding Ordinary Shares shall be determined after giving effect to the
conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates since the date as of which such number of outstanding Ordinary Shares was reported. The “Beneficial Ownership Limitation” shall be
9.99% of the number of Ordinary Shares outstanding immediately after giving effect to the applicable issuance of the Warrant ADSs (represented by ADRs)issuable upon exercise of this Warrant, provided that
the Holder may decrease such Beneficial Ownership Limitation upon written notice to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section
2(f) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give
effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
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(f) No Violation.
The Company shall take all such actions as may be necessary to ensure that all such Warrant ADSs (represented by ADRs) are issued without any rights of pre-emption in favor of any other person and without violation by the Company of any
applicable law or governmental regulation or of any requirements of any domestic securities exchange upon which Ordinary Shares, ADSs (represented by ADRs), or other securities constituting Warrant ADSs (represented by ADRs) or into which such
Warrant ADSs (represented by ADRs) may be converted or exchanged may be listed at the time of such exercise (except for official notice of issuance which shall be immediately delivered by the Company upon each such issuance).
(g) Listing.
Promptly following the date of this Warrant Certificate the Company shall cause the Warrant ADSs (represented by ADRs) to be listed on the Trading Market, and shall maintain such listing through the time of such exercise and the holding of the
Warrant ADSs by the Holder, and shall assure that it and the Depositary shall, at all times maintain, for the benefit of the Holder, (i) that number of ADSs underlying the Warrant ADSs available for issuance in connection with the exercise of
this Warrant Certificate under a registration statement on Form F-3 in accordance with Section 4, and (ii) that number of ADRs available for issuance in connection with the exercise of this Warrant Certificate under a registration
statement on Form F-6.
Section 3. Certain Adjustments. In order to prevent dilution of the purchase rights granted under this Warrant
Certificate, the Exercise Price and the number of Warrant ADSs (represented by ADRs) issuable upon exercise of this Warrant Certificate shall be subject to adjustment from time to time as provided in this Section 3.
(a) Adjustment
to Exercise Price Upon Issuance of Ordinary Shares or ADSs. Subject to Section 3(c), if the Company shall, at any time after the date hereof (the “Issue Date”), issue or sell any Ordinary Shares, whether directly or
indirectly by way of Options or Convertible Securities (including through the issuance of ADSs (represented by ADRs)(other than in an Excluded Issuance or any event described in Section 3(d) or (e)), without consideration or for
consideration per share less than the Exercise Price in effect immediately prior to such issuance or sale, then immediately upon such issuance or sale, the Exercise Price in effect immediately prior to such issuance or sale shall be reduced
(and in no event increased) to an Exercise Price equal to the quotient obtained by dividing:
(i) the sum of (A) the
product obtained by multiplying the Stock Deemed Outstanding immediately prior to such issuance or sale (or deemed issuance or sale) by the Exercise Price then in effect plus (B) the aggregate consideration, if any, received by the Company upon
such issuance or sale (or deemed issuance or sale); by
10
(ii) the sum of (A) the Stock Deemed Outstanding immediately prior to such issuance or sale (or deemed issuance or sale) plus (B) the aggregate
number of Ordinary Shares issued or sold (or deemed issued or sold) by the Company in such issuance or sale (or deemed issuance or sale);
provided, for the avoidance of doubt, the number of Warrant ADSs (represented by ADRs) issued
pursuant to this Warrant Certificate will not be adjusted in the event that the Exercise Price is adjusted under Section 3(a).
(b) Effect of Certain Events on Adjustment to Exercise Price. For purposes of determining the adjusted Exercise Price
under Section 3(a), the following shall be applicable:
(i) Issuance of Options. If the Company shall, at any time or from time to time after the date hereof, in any manner grant or sell (whether
directly or by assumption in a merger or otherwise) any Options, whether or not such Options or the right to convert or exchange any Convertible Securities issuable upon the exercise of such Options are immediately exercisable, and the price per
share (determined as provided in this Section 3(b)(i) and in Section 3(b)(v)) for which Ordinary Shares (or equivalent securities) are issuable upon the exercise of such Options or upon the conversion or exchange of Convertible
Securities issuable upon the exercise of such Options is less than the Exercise Price in effect immediately prior to the time of the granting or sale of such Options, then the total maximum number of Ordinary Shares (or equivalent securities)
issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting or sale of
such Options (and thereafter shall be deemed to be outstanding for purposes of adjusting the Exercise Price under Section 3(a)), at a price per share equal to the quotient obtained by dividing:
| (A) |
the sum (which sum shall constitute the applicable consideration received for purposes of Section 3(a)) of (1) the total amount, if any, received or receivable by the Company as consideration for the granting or sale of
all such Options, plus (2) the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus (3), in the case of such Options which relate to Convertible
Securities, the minimum aggregate amount of additional consideration, if any, payable to the Company upon the issuance or sale of all such Convertible Securities and the conversion or exchange of all such Convertible Securities, by
|
11
(B) the total maximum number of Ordinary Shares issuable upon the exercise of all such Options or upon the conversion or exchange of all
Convertible Securities issuable upon the exercise of all such Options.
Except as otherwise provided in Section 3(b)(iii), no further adjustment of the Exercise Price shall be made upon the actual issuance of Ordinary
Shares (or equivalents) or of Convertible Securities upon exercise of such Options or upon the actual issuance of Ordinary Shares (or equivalents) upon conversion or exchange of Convertible Securities issuable upon exercise of such Options.
(ii) Issuance of Convertible Securities. If the Company shall, at any time or from time to time after the Issue Date, in any manner grant or
sell (whether directly or by assumption in a merger or otherwise) any Convertible Securities, whether or not the right to convert or exchange any such Convertible Securities is immediately exercisable, and the price per share (determined as
provided in this Section 3(b)(ii) and in Section 3(b)(v)) for which Ordinary Shares (or equivalent securities) are issuable upon the conversion or exchange of such Convertible Securities is less than the Exercise Price in effect
immediately prior to the time of the granting or sale of such Convertible Securities, then the total maximum number of Ordinary Shares issuable upon conversion or exchange of the total maximum amount of such Convertible Securities shall be deemed
to have been issued as of the date of granting or sale of such Convertible Securities (and thereafter shall be deemed to be outstanding for purposes of adjusting the Exercise Price pursuant to Section 3(a)), at a price per share equal to the
quotient obtained by dividing:
(A) the sum (which sum shall constitute the applicable consideration received for purposes of Section 3(a)) of (1) the total amount, if
any, received or receivable by the Company as consideration for the granting or sale of such Convertible Securities, plus (2) the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or
exchange of all such Convertible Securities, by
(B) the total maximum number of Ordinary Shares (or equivalent securities) issuable upon the conversion or exchange of all such Convertible
Securities.
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Except as otherwise provided in Section 3(b)(iii), (A) no further adjustment of the Exercise Price shall be made upon the actual issuance of
Ordinary Shares (or equivalents) upon conversion or exchange of such Convertible Securities and (B) no further adjustment of the Exercise Price shall be made by reason of the issue or sale of Convertible Securities upon exercise of any Options to
purchase any such Convertible Securities for which adjustments of the Exercise Price have been made pursuant to the other provisions of this Section 3(b).
(iii) Change in Terms of Options or Convertible Securities. Upon any change in any of (A) the total amount received or
receivable by the Company as consideration for the granting or sale of any Options or Convertible Securities referred to in Section 3(b)(i) or (ii), (B) the minimum aggregate amount of additional consideration, if any, payable to
the Company upon the exercise of any Options or upon the issuance, conversion or exchange of any Convertible Securities referred to in Section 3(b)(i) or (ii), (C) the rate at which Convertible Securities referred to in Section
3(b)(i) or (ii) are convertible into or exchangeable for Ordinary Shares (or equivalent securities), or (D) the maximum number of Ordinary Shares (or equivalent securities) issuable in connection with any Options referred to in Section
3(b)(i) or any Convertible Securities referred to in Section 3(b)(ii) (in each case, other than in connection with an Excluded Issuance), then (whether or not the original issuance or sale of such Options or Convertible Securities
resulted in an adjustment to the Exercise Price pursuant to this Section 3) the Exercise Price in effect at the time of such change shall be adjusted or readjusted, as applicable, to the Exercise Price which would have been in effect at
such time pursuant to the provisions of this Section 3 had such Options or Convertible Securities still outstanding provided for such changed consideration, conversion rate or maximum number of shares, as the case may be, at the time
initially granted, issued or sold, but only if as a result of such adjustment or readjustment the Exercise Price then in effect is reduced.
(iv) Treatment of Expired or Terminated Options or Convertible Securities. Upon the expiration or termination of
any unexercised Option (or portion thereof) or any unconverted or unexchanged Convertible Security (or portion thereof) for which any adjustment (either upon its original issuance or upon a revision of its terms) was made pursuant to this Section
3 (including without limitation upon the redemption or purchase for consideration of all or any portion of such Option or Convertible Security by the Company), the Exercise Price then in effect hereunder automatically shall be changed to
the Exercise Price which would have been in effect at the time of such expiration or termination had such unexercised Option (or portion thereof) or unconverted or unexchanged Convertible Security (or portion thereof), to the extent outstanding
immediately prior to such expiration or termination, never been issued.
13
(v) Calculation of Consideration Received. If the Company shall, at any time or from time to time after the Issue Date, issue or sell, or
pursuant to Section 3(b) be deemed to have issued or sold, any Ordinary Shares, Options or Convertible Securities: (A) for cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor;
(B) for Marketable Securities, the amount of consideration received therefor shall be deemed to be the market price (as reflected on any securities exchange, quotation system or association or similar pricing system covering such security) for
such securities as of the end of business on the date of receipt of such securities; (C) for consideration other than cash or Marketable Securities, the amount of consideration received therefor shall be deemed to be the fair value of such
consideration; (D) for no specifically allocated consideration in connection with an issuance or sale of other securities of the Company, together comprising one integrated transaction, the amount of consideration received therefor shall be
deemed to be to be the fair value of such portion of the aggregate consideration received by the Company in such transaction as is attributable to such Ordinary Shares, Options or Convertible Securities, as the case may be, issued in such
transaction; or (E) to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving corporation, the amount of consideration received therefor shall be deemed to be the fair value of such portion of
the net assets and business of the non-surviving entity as is attributable to such Ordinary Shares, Options or Convertible Securities, as the case may be, issued to such owners. The net amount of any cash consideration and the fair value of any
consideration other than cash or Marketable Securities shall be determined in accordance with Section 1028 of the Companies Act and, to the extent necessary or required, in good faith jointly by the Board of Directors of the Company and the
Holder.
(vi) Record Date. For purposes of any adjustment to the Exercise Price or the number of Warrant ADSs in accordance with this Section 3,
or any adjustment to the number of Warrant ADSs pursuant to Section 3(c) or 3(d), in case the Company shall take a record of the holders of its Ordinary Shares (or equivalent securities) for the purpose of entitling them (A) to
receive a dividend or other distribution payable in Ordinary Shares, Options or Convertible Securities or (B) to subscribe for or purchase Ordinary Shares, Options or Convertible Securities, then such record date shall be deemed to be the date of
the issue or sale of the Ordinary Shares deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(vii) Treasury Shares. The number of Ordinary Shares (or equivalent securities) outstanding at any given time shall not include shares owned
or held by or for the account of the Company or any of its wholly-owned subsidiaries, and the disposition of any such shares (other than the cancellation or retirement thereof or the transfer of such shares among the Company and its wholly-owned
subsidiaries) shall be considered an issue or sale of Ordinary Shares for the purpose of this Section 3.
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(c) Adjustment to Exercise Price and Warrant ADSs Upon Dividend, Subdivision or Combination of Ordinary Shares. If the Company shall,
at any time or from time to time after the Issue Date, (i) pay a dividend or make any other distribution upon the Ordinary Shares or any other capital stock of the Company payable in Ordinary Shares or in Options or Convertible Securities, or
(ii) subdivide (by any stock split, recapitalization or otherwise) its outstanding Ordinary Shares (or equivalent securities) into a greater number of shares, the Exercise Price in effect immediately prior to any such dividend, distribution or
subdivision shall be proportionately reduced and the number of Warrant ADSs (represented by ADRs) issuable upon exercise of this Warrant Certificate shall be proportionately increased. If the Company at any time combines (by combination, reverse
stock split or otherwise) its outstanding Ordinary Shares (or equivalent securities) into a smaller number of shares, the Exercise Price in effect immediately prior to such combination shall be proportionately increased and the number of Warrant
ADSs (represented by ADRs) issuable upon exercise of this Warrant Certificate shall be proportionately decreased. Any adjustment under this Section 3(c) shall become effective at the close of business on the date the dividend, subdivision
or combination becomes effective.
(d) Adjustment to Exercise Price and Warrant ADSs Upon Reorganization, Reclassification, Consolidation or Merger. Unless the Holder
otherwise consents (in its sole discretion), in the event of any (A) capital reorganization of the Company, (B) reclassification of the stock of the Company (other than a change in par value or from par value to no par value or from no par value
to par value or as a result of a stock dividend or subdivision, split-up or combination of shares), (C) Fundamental Transaction or (D) other similar transaction (other than any such transaction covered by Section 3(c)), in each case which
entitles the holders of Ordinary Shares (or equivalent securities) to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Ordinary Shares (or equivalent securities):
(i) this Warrant Certificate shall, immediately after such transaction, remain outstanding and shall thereafter, in lieu of or in addition to (as
the case may be) the number of Warrant ADSs (represented by ADRs) then exercisable under this Warrant Certificate, be exercisable for the kind and number of shares of stock or other securities or assets of the Company or of the successor Person
resulting from such transaction to which the Holder would have been entitled upon such transaction if the Holder had exercised this Warrant Certificate in full immediately prior to the time of such transaction and acquired the applicable number
of Warrant ADSs (represented by ADRs) then issuable hereunder as a result of such exercise (without taking into account any limitations or restrictions on the exercisability of this Warrant Certificate); and
(ii) appropriate adjustment (in form and substance satisfactory to the Holder) shall be made with respect to the Holder’s rights under this Warrant
Certificate to insure that the provisions of this Section 3 shall thereafter be applicable, as nearly as possible, to this Warrant Certificate in relation to any shares of stock, securities or assets thereafter acquirable upon exercise of
this Warrant Certificate (including, in the case of any transaction in which the successor or purchasing Person is other than the Company, an immediate adjustment in the Exercise Price to the value per share for the Ordinary Shares (or equivalent
securities) reflected by the terms of such transaction, and a corresponding adjustment immediately shall be made to the number of Warrant ADSs acquirable upon exercise of this Warrant Certificate, without regard to any limitations or restrictions
on exercise, if the value so reflected is less than the Exercise Price in effect immediately prior to such transaction).
15
The provisions of this Section 3(d) shall similarly apply to successive reorganizations, reclassifications, Fundamental Transactions or similar
transactions.
Notwithstanding anything to the contrary contained herein, with respect to any corporate event or other transaction contemplated by this Section 3(d),
the Holder shall have the right to elect, prior to the consummation of such event or transaction, to exercise this Warrant instead of giving effect to Section 3(d).
(e) Other Dividends and Distributions. If the Company shall, at any time or from time to time after the Issue Date, make or declare, or fix a
record date for the determination of holders of Ordinary Shares (or equivalent securities) entitled to receive, a dividend or any other distribution payable in cash, securities of the Company (other than a dividend or distribution of shares of
Ordinary Shares, Options or Convertible Securities in respect of outstanding Ordinary Shares (or equivalent securities)) or other property, then, and in each such event, the Company shall ensure that provisions are made so that the Holder shall
receive upon exercise of this Warrant Certificate, in addition to the number of Warrant ADSs (represented by ADRs) receivable thereupon, the kind and amount of cash, securities of the Company or other property which the Holder would have been
entitled to receive had this Warrant Certificate been exercised in full into Warrant ADSs (represented by ADRs) on the date of such event and had the Holder thereafter, during the period from the date of such event to and including the date of
exercise, retained such cash, securities or other property receivable by them as aforesaid during such period, giving application to all adjustments called for during such period under this Section 3 with respect to the rights of the
Holder; provided that no such provision shall be made if the Holder receives, simultaneously with the distribution to the holders of Ordinary Shares (or equivalent securities), a dividend or other
distribution of such securities, cash or other property in an amount equal to the amount of such securities, cash or other property as the Holder would have received if this Warrant Certificate had been exercised in full into Warrant ADSs
(represented by ADRs) on the date of such event.
(f) Certain Events. If any event of the type contemplated by the provisions of this Section 3 but not expressly provided for by such
provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features in each case, other than with respect to any Excluded Issuance) occurs, then the Board of Directors of
the Company shall make an appropriate adjustment in the Exercise Price of this Warrant Certificate so as to protect the rights of the Holder in a manner consistent with the provisions of this Section 3; provided
that (i) no such adjustment pursuant to this Section 3(f) shall increase the Exercise Price or decrease the number of Warrant ADSs (represented by ADRs) issuable as otherwise determined pursuant to this Section 3 and (ii)
for the avoidance of doubt, no adjustment pursuant to this Section 3(f) shall be made in connection with an Excluded Issuance.
(g) Certificate as to Adjustment. As promptly as reasonably practicable
following any adjustment of the Exercise Price, but in any event not later than three business days thereafter, the Company shall furnish to the Holder a certificate of an executive officer setting forth in reasonable detail such adjustment and
the facts upon which it is based and certifying the calculation thereof. As promptly as reasonably practicable following the receipt by the Company of a written request by the Holder, but in any event not later than three business days
thereafter, the Company shall furnish to the Holder a certificate of an executive officer certifying the Exercise Price then in effect and the number of Warrant ADSs or the amount, if any, of other shares of stock, securities or assets then
issuable upon exercise of this Warrant Certificate. Upon request of the Holder, the Company shall issue a replacement Warrant Certificate reflecting the as-adjusted number of Warrant ADSs and the then-applicable Exercise Price, as set forth in
Section 5(b)(iii).
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(h) Change in ADS Ratio. If, after the Issue Date, the ADS Ratio is increased or reduced, then the number of Warrant ADSs (represented by
ADRs) to be issued on exercise of this Warrant Certificate will be reduced or increased (respectively) in inverse proportion to the change in the ADS Ratio, and the Exercise Price per Warrant ADS will be increased or reduced (respectively) in
proportion to the change in the number Ordinary Shares issuable per ADS, so that the aggregate Exercise Price remains unchanged.
(i) Fundamental Transaction. If, at any time while this Warrant is outstanding, the Company effects a Fundamental Transaction, then, upon any
subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant ADS (represented by an ADR) that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at
the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of Ordinary Shares (or other securities) of the successor or acquiring corporation or of the Company, if it is the
surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares (or equivalent securities) for which this
Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall
be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one (1) Ordinary Share in such Fundamental Transaction, and the Company shall apportion the Exercise Price
among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares (or equivalent securities) are given any choice as to the securities,
cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall
cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant pursuant to written agreements in form
and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a
security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent
entity) equivalent to the Ordinary Shares (or equivalent securities) acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an
exercise price which applies the Exercise Price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares (or equivalent securities) pursuant to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such Exercise Price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is
reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction,
the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same
effect as if such Successor Entity had been named as the Company herein.
17
(j) Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of Ordinary Shares (or equivalent securities) deemed to be issued and outstanding as of a given date shall be the sum of the number of Ordinary Shares (or equivalent securities)
(excluding treasury shares, if any) issued and outstanding.
(k) Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in
whatever form) on its Ordinary Shares (or equivalent securities), (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of its Ordinary Shares (or equivalent securities), (C) the Company shall authorize the
granting to all holders of its Ordinary Shares (or equivalent securities) rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be
required in connection with any reclassification of its Ordinary Shares (or equivalent securities), any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any
compulsory share exchange whereby its Ordinary Shares (or equivalent securities) are converted into other securities, cash or property, (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the
affairs of the Company, or (F) the Company seeks to engage in a Fundamental Transaction, then, in each case, the Company shall cause to be mailed to the Holder at its last address as it shall appear upon the Warrant Register (as defined below) of
the Company, at least twenty (20) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption,
rights or warrants, or if a record is not to be taken, the date as of which the holders of its Ordinary Shares of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which
such Fundamental Transaction, reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of its Ordinary Shares (or equivalent
securities) of record shall be entitled to exchange their Ordinary Shares (or equivalent securities) for securities, cash or other property deliverable upon such Fundamental Transaction, reclassification, consolidation, merger, sale, transfer or
share exchange; provided that the failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the corporate action required to be specified in such
notice. To the extent that any notice required to be provided hereunder may contain information that constitutes material, non-public information regarding the Company or any of its subsidiaries, the Company shall obtain the Holder’s prior
consent to receipt of such notice. If the Holder declines to receive any such notice pursuant to the immediately preceding sentence, the Company shall not be deemed to have breached its obligation to deliver such notice hereunder. The Holder
shall remain entitled to exercise this Warrant during the 20-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
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Section 4. Registration Rights.
| (a) |
Registration.
|
(i) The Company shall prepare and file or cause to be prepared and filed with the Commission, no later than April 30, 2025 (the “Filing Deadline”),
a registration statement for an offering to be made on a continuous basis pursuant to Rule 415 of the Securities Act registering the resale from time to time by the Holder of all Registrable Securities held by the Holder (the “Resale
Registration Statement”). The Resale Registration Statement shall be on Form F-3 or, if the use of Form F-3 is not then available to the Company, on Form F-1 or such other appropriate form permitting registration of such Registrable
Securities for resale by the Holder. The Company shall use reasonable best efforts to cause the Resale Registration Statement to be declared effective as soon as possible after filing, but in no event shall the Resale Registration Statement be
declared effective later than the earlier of (i) sixty (60) days following the Filing Deadline or (ii) ten (10) Business Days after the Commission notifies the Company that it will not review the Resale Shelf Registration Statement, if applicable
(the “Effectiveness Deadline”); provided, that the Effectiveness Deadline shall be extended by no more than ninety (90) days after the Filing Deadline if the Registration Statement is reviewed by, and receives comments from, the
Commission. Once effective, the Company shall keep the Resale Registration Statement continuously effective and supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, to
ensure that another registration statement is available, under the Securities Act at all times until such date as all Registrable Securities covered by the Resale Registration Statement have been disposed of in accordance with the intended
method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn (the “Effectiveness Period”). The Resale Registration Statement shall contain a prospectus in such form as to permit the Holder to
sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) at any time beginning on the effective date for such Registration Statement, and shall
provide that such Registrable Securities may be sold pursuant to any method or combination of methods legally available to, and requested by, the Holder.
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(ii) The Company shall notify the Holder in writing of the effectiveness of the Resale Registration Statement as soon as practicable, and in any
event within one (1) Business Day after the Resale Registration Statement becomes effective, and shall furnish to Holder, without charge, such number of copies of the Resale Registration Statement (including any amendments, supplements and
exhibits), the prospectus contained therein (including each preliminary prospectus and all related amendments and supplements) and any documents incorporated by reference in the Resale Shelf Registration Statement or such other documents as the
Holder may reasonably request in order to facilitate the sale of the Registrable Securities in the manner described in the Resale Registration Statement.
(iii) Subject to the provisions of Section 4(a)(i) above, the Company shall promptly prepare and file with the
Commission from time to time such amendments and supplements to (or replacements of) the Resale Registration Statement and prospectus used in connection therewith as may be necessary to keep the Resale Registration Statement (or replacements
thereof) effective and to comply with the provisions of the Securities Act with respect to the disposition of all the Registrable Securities during the Effectiveness Period. If any Resale Registration Statement filed pursuant to Section
4(a)(i) is filed on Form F-3 and thereafter the Company becomes ineligible to use such registration statement for secondary sales, the Company shall promptly notify the Holder of such ineligibility and shall file a shelf registration on
Form F-1 or other appropriate form as promptly as practicable (but no later than 14 calendar days after becoming ineligible to use Form F-3) to replace the Resale Registration Statement and use its best efforts to have the such replacement Resale
Registration Statement declared effective as promptly as practicable and shall cause such replacement Resale Registration Statement to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Resale Shelf
Registration Statement is available or, if not available, that another Resale Registration Statement is available, for the resale of all the Registrable Securities held by the Holder until all such Registrable Securities have been sold; provided,
however, that at any time the Company once again becomes eligible to use Form F-3, the Company shall cause such replacement Resale Registration Statement to be amended, or shall file a new replacement Resale Registration Statement, such that the
Resale Registration Statement is once again on Form F-3.
(iv) The Company represents and warrants that there are sufficient ADRs registered on a registration statement on Form F-6 and available for
issuance in respect of all Warrant ADSs issuable hereunder, and the Company covenants that it will cause a sufficient number of ADRs to remain registered on a registration statement on Form F-6 and available for issuance to satisfy the Company’s
obligations hereunder at all times that this Warrant is outstanding.
| (b) |
Rule 144 Reporting. With a view to making available to the Holder the benefits of Rule 144 and any other rule or regulation of the Commission that may at
any time permit the Holder to sell securities of the Company to the public without registration or pursuant to a registration on a Shelf Form, the Company shall make and keep available adequate current public information, as those terms
are understood and defined in Rule 144.
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Section 5. Transfer of Warrant.
(a) Transferability. Subject to compliance with any applicable securities laws, this Warrant and all rights hereunder (including, without
limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the
form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and
deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion
of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned
this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within two (2) Trading Days of the date the Holder delivers to the Company a completed Assignment Form in the form attached hereto duly executed by the
Holder assigning all or any portion of this Warrant. This Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant ADSs (represented by ADRs) without having a new Warrant issued.
| (b) |
Replacement Warrants.
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(i) This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a
written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 5(a), as to any transfer which may be involved in such
division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be
dated as of the Issue Date and shall be identical with this Warrant except as to the number of Warrant ADSs (represented by ADRs) issuable pursuant thereto.
(ii) Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and upon delivery
of an indemnity reasonably satisfactory to it (it being understood that a written indemnification agreement or affidavit of loss of the Holder shall be a sufficient indemnity) and, in case of mutilation, upon surrender of such Warrant for
cancellation to the Company, the Company at its own expense shall execute and deliver to the Holder, in lieu hereof, a new Warrant of like tenor and exercisable for an equivalent number of Warrant ADSs (represented by ADRs) as this Warrant so
lost, stolen, mutilated or destroyed; provided that, in the case of mutilation, no indemnity shall be required if this Warrant in identifiable form is surrendered to the Company for cancellation.
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(iii) Upon request by the Holder and surrender of this Warrant Certificate to the Company for replacement, the Company, at its own expense, shall
execute and deliver to the Holder in replacement of this Warrant Certificate a new Warrant Certificate of like tenor and exercisable for such number of Warrant ADSs (represented by ADRs) and at such Exercise Price as this Warrant shall be
exercisable for immediately prior to such request, after taking into account any adjustments to the number of Warrant ADSs and the Exercise Price has may have been made pursuant to the terms hereof.
(c) Transferee Representations. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the
transfer of this Warrant shall not be eligible for resale without volume or manner-of-sale restrictions or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the
Holder or transferee of this Warrant, as the case may be, deliver a written statement from the transferee to the Company certifying that the transferee is an “accredited investor” as defined in Rule 501(a) under the Securities Act, making the
representations and certifications set forth in Section 5(e) of this Warrant and making such additional representations as the Company may, after consultation with its counsel, require in order to confirm compliance with applicable
securities laws.
(d) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.
(e) Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that (i) it is an “accredited investor” as
defined in Rule 501(a) under the Securities Act and (ii) it is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant ADSs (represented by ADRs) issuable upon such exercise, for its own account and not with a view to or
for distributing or reselling such Warrant ADSs (represented by ADRs) or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act.
Section 6. Miscellaneous.
(a) No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth herein. Without limiting the rights of a Holder to receive Warrant ADSs (represented by ADRs) on a “cashless exercise,” in no event will the Company be
required to net cash settle an exercise of this Warrant.
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(b) Removal of Restrictive Legends. Neither this Warrant nor any certificates or ADRs evidencing Warrant ADSs shall contain any legend
restricting the transfer thereof in any of the following circumstances: (A) following any sale of this Warrant or such Warrant ADSs (represented by ADRs) issued or delivered to the Holder under or in connection herewith pursuant to Rule 144, (B)
if this Warrant or such Warrant ADSs (represented by ADRs) are eligible for sale under Rule 144(b)(1), or (C) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and
pronouncements issued by the staff of the Commission and including due to such securities being covered by a valid registration statement) (collectively, the “Unrestricted Conditions”). In such circumstances, the Company shall seek to
cause its counsel to issue a legal opinion to the Transfer Agent or Depositary, as applicable, if required by such Transfer Agent or Depositary to effect the issuance of Warrant ADSs (represented by ADRs), without a restrictive legend or removal
of the legend hereunder. If the Unrestricted Conditions are met at the time of issuance of this Warrant, the Warrant ADSs or such other securities of the Company issuable in connection with this Warrant, then this Warrant, Warrant ADSs or other
securities, as the case may be, shall be issued free of all legends.
(c) Replacement Warrant. The Company agrees that at such time as the Unrestricted Conditions have been satisfied it shall promptly (but in
any event within ten (10) business days) following written request from the Holder issue a replacement Warrant or replacement Warrant ADSs (represented by ADRs), or replacement shares in respect of such other securities, as the case may be, free
of all restrictive legends (“Unlegended Shares”).
(d) Authorized Shares. The Company covenants that, during the period this Warrant is outstanding, it will reserve from its authorized and
unissued Ordinary Shares a sufficient number of Ordinary Shares to provide for the issuance of the Ordinary Shares and ADSs underlying this Warrant upon the exercise of any purchase rights under this Warrant. The Company further covenants that
its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Ordinary Shares and ADSs upon the exercise of the purchase rights under this Warrant. The Company will take all
such action as may be necessary, including giving directions to the Depositary, to assure that the Warrant ADSs (represented by ADRs) and the underlying Ordinary Shares may be issued as provided herein without violation of any applicable law or
regulation, or of any requirements of the Trading Market upon which the ADSs (represented by ADRs) are then listed. The Company covenants that all Warrant ADSs (represented by ADRs) and all Ordinary Shares underlying the Warrant ADSs will, upon
exercise of the purchase rights represented by this Warrant and payment for such Warrant ADSs in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, rights of pre-emption, liens and
charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
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(e) No Impairment. Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without
limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set
forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue unrestricted, fully
paid and nonassessable Warrant ADSs (represented by ADRs) upon the exercise of this Warrant, and (ii) use best efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may
be necessary to enable the Company to perform its obligations under this Warrant. Before taking any action which would result in an adjustment in the number of Warrant ADSs for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
(f) Rule 144 Compliance. With a view to making available to the Holder the benefits of Rule 144 under the Securities Act and any other rule
or regulation of the SEC that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a Registration Statement, the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities
Act and the Exchange Act; and
(iii) furnish to the Holder, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144
under the Securities Act and of the Securities Act and the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may reasonably
request in connection with the sale of Warrant ADSs (represented by ADRs) without registration.
(g) Governing Law. This Warrant and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance
with, the law of the State of New York, without regard to principles of conflicts of laws that would result in the application of the laws of any other jurisdiction.
(h) Submission to Jurisdiction. The Company agrees that any suit, action or proceeding with respect to this Warrant or
any judgment entered by any court in respect thereof may be brought initially in the federal or state courts in New York, New York or in the courts of its own corporate domicile and irrevocably submits to the exclusive jurisdiction of each such
court for the purpose of any such suit, action, proceeding or judgment. This Section is for the benefit of the Holder only and, as a result, the Holder shall not be prevented from taking proceedings in any other courts with jurisdiction. To the
extent allowed by any applicable law, the Holder may take concurrent proceedings in any number of jurisdictions.
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(i) Waiver of Venue, Etc. The Company irrevocably waives to the fullest extent permitted by law any objection that it may now or hereafter
have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Warrant and hereby further irrevocably waives to the fullest extent permitted by law any claim that any such suit, action or proceeding brought
in any such court has been brought in an inconvenient forum. A final judgment (in respect of which time for all appeals has elapsed) in any such suit, action or proceeding shall be conclusive and may be enforced in any court to the jurisdiction
of which the Company is or may be subject, by suit upon judgment.
(j) Waiver of Jury Trial. THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS WARRANT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(k) No Waiver. No failure on the part of the Holder to exercise and no delay in exercising, and no course of dealing with respect to, any
right, power or privilege under this Warrant shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Warrant preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The remedies provided herein are cumulative and not exclusive of any remedies provided by law.
(l) Expenses. If the Company fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the
Company shall pay to the Holder such amounts as shall be sufficient to cover any actual, reasonable and documented attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or
in otherwise enforcing any of its rights, powers or remedies hereunder.
(m) Notices. All notices, requests, instructions, directions and other communications provided for herein (including any modifications of, or
waivers, requests or consents under, this Warrant) shall be given or made in writing (including by telecopy or email) delivered, if to the Company or the Holder, to its address specified on the signature pages hereto, or at such other address as
shall be designated by such party in a written notice to the other party. Except as otherwise provided in this Warrant, all such communications shall be deemed to have been duly given upon receipt of a legible copy thereof, in each case given or
addressed as aforesaid. All such communications provided for herein by telecopy shall be confirmed in writing promptly after the delivery of such communication (it being understood that non-receipt of written confirmation of such communication
shall not invalidate such communication).
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(n) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase
Warrant ADSs (represented by ADRs), and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any ADSs (represented by ADRs) or any Ordinary Shares or as a
stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
(o) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be
entitled to seek specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby
agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
(p) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall be
binding upon and inure to the benefit of the successors and permitted assigns of the Company and the successors and permitted assigns of the Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time
of this Warrant and shall be enforceable by the Holder or any holder of Warrant ADSs (represented by ADRs).
(q) Amendments, Etc. Except as otherwise expressly provided in this Warrant, any provision of this Warrant may be modified or supplemented
only by an instrument in writing signed by the Company and the Holder.
(r) Severability. If any provision hereof is found by a court to be invalid or unenforceable, to the fullest extent permitted by any
applicable law the parties agree that such invalidity or unenforceability shall not impair the validity or enforceability of any other provision hereof.
(s) Currency. Unless otherwise indicated, all dollar amounts referred to in this Warrant are in United States Dollars (“US Dollars”).
All amounts owing under this Warrant shall be paid in US Dollars. All amounts denominated in other currencies shall be converted in the US Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate”
means, in relation to any amount of currency to be converted into US Dollars pursuant to this Warrant, the US Dollar exchange rate as published in the Wall Street Journal (NY edition) on the relevant date of calculation.
(a) Captions. The captions and section headings appearing herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Warrant.
(b) Counterparts. This Warrant may be executed in any number of counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Warrant by signing any such counterpart.
(Signature Page Follows)
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IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by its officer thereunto duly authorized as a Deed on the date first above indicated.
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GIVEN UNDER THE COMMON SEAL OF
TRINITY BIOTECH PLC
By: /s/ John Gillard
Name: John Gillard
Title: Director
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Address for Notices:
Trinity Biotech plc
IDA Business Park,
Bray, Co. Wicklow, Ireland
A98 H5C8
Attention: John Gillard, CEO
Telephone: +353 1 276 9800
Email: Lennotice@trinitybiotech.com
With a copy to (which shall not constitute notice):
Carter Ledyard & Milburn LLP
2 Wall Street, New York, NY 10005
Attention: Steven J. Glusband, Esq.
Email: glusband@clm.com
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[Signature Page to Warrant 3]
Accepted and Agreed,
Perceptive Credit Holdings III, LP
By: Perceptive Credit Opportunities GP, LLC, its general partner
| By: | /s/Sandeep Dixit | |
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Name: Sandeep Dixit
Title: Chief Credit Officer
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| By: | /s/ Sam Chawla | |
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Name: Sam Chawla
Title: Portfolio Manager
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Address for Notices:
c/o Perceptive Advisors LLC
51 Astor Place, 10th Floor
New York, NY 10003
Attn: Sandeep Dixit
Email: Sandeep@perceptivelife.com
PCOFReporting@perceptivelife.com
with a copy to (which shall not constitute notice):
Chapman and Cutler LLP
1270 Avenue of the Americas
30th Floor
New York, New York 10020-1708
Attention: Nicholas Whitney
E-mail: Whitney@chapman.com
[Signature Page to Warrant 3]
NOTICE OF EXERCISE
TO: TRINITY BIOTECH PLC
(1) The undersigned hereby elects to purchase American Depositary Receipts pursuant to the terms of the attached Warrant and
tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
| (2) |
Payment shall take the form of (check applicable box):
☐ in lawful money of the United States; or
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☐ the cancellation of such number of Warrant ADSs as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this
Warrant with respect to the maximum number of Warrant ADSs purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant ADSs (represented by ADRs) in the name of the undersigned or in such other name as is specified below:
Check applicable box and fill in information:
☐ The Warrant ADSs (represented by ADRs) shall be delivered to the following DWAC Account Number:
DTC Participant #:
Undersigned’s Account #
☐ The Warrant ADSs (represented by ADRs) shall be delivered by physical delivery of ADRs to:
[SIGNATURE OF HOLDER]
Name of Investing Entity:
Signature of Authorized Signatory of Investing Entity:
Name of Authorized Signatory:
Title of Authorized Signatory:
Date:
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name of Person to Whom Warrant is being Transferred:
Address of Person to Whom Warrant is being Transferred:
Number of Shares Subject to Warrant being Transferred:
Dated: ,
Holder’s Name:
Holder’s Signature:
Name of Authorized Signatory:
Title of Authorized Signatory:
Holder’s Address:
Exhibit 4.9
Execution Version
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS MAY BE REQUIRED TO BE EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF
THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT.
WARRANT TO PURCHASE AMERICAN DEPOSITARY SHARES
REPRESENTED BY AMERICAN DEPOSITARY RECEIPTS
TRINITY BIOTECH PLC
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Warrant ADSs: 500,000
Warrant No. 4
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Issue Date: December 23, 2024 |
THIS WARRANT TO PURCHASE AMERICAN DEPOSITARY SHARES REPRESENTED BY AMERICAN DEPOSITARY RECEIPTS (this “Warrant” or “Warrant
Certificate”) certifies that, for value received, Perceptive Credit Holdings II, LP or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any
time on or after the date hereof, and on or prior to the close of business on December 23, 2031 (the “Expiration Date”), but not thereafter, to purchase from Trinity Biotech PLC, a public limited company organized and existing under the
laws of Ireland (the “Company”), and the Company shall be obliged to cause the issuance, of up to five hundred thousand (500,000) American Depositary Shares of the Company (“ADSs”), with each ADS being represented by one American
Depositary Receipt issued by the Depositary (“ADR”), each of which in turn represents twenty (20) “A” Ordinary Shares of the Company (the “ADS Ratio”) (as subject to adjustment hereunder the “Warrants ADSs”). The purchase
price of one ADS, represented by one ADR, issuable under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
This Warrant is issued pursuant to that certain Side Letter, dated as of the date hereof, by and between the Company and the Holder.
Section 1. Definitions. For the purposes hereof, in addition to the terms defined elsewhere in this Warrant, the following
terms shall have the following meanings:
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is
under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Business Day” means any day, except a Saturday, Sunday or legal holiday, on which banking institutions in the city of New York,
New York are authorized or obligated by law or executive order to close.
“Commission” means the United States Securities and Exchange Commission.
“Companies Act” means the Companies Act of 2014 of Ireland (as amended).
“Convertible Securities” means any debt, equity or other securities that are, directly or indirectly, convertible into or exchangeable for Ordinary Shares or ADSs or
ADRs.
“Depositary” means The Bank of New York Mellon, a New York banking corporation, as depositary for the ADSs and the issuer of the
ADRs.
“Excluded Issuance” means the issuance of (a) Ordinary Shares or ADSs (or options with respect thereto) issued or issuable to
employees or directors of, or consultants to, the Company or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board of Directors of the Company, (b) other securities exercisable or exchangeable for or
convertible into Ordinary Shares or ADSs issued and outstanding on the date of this Warrant, provided that such securities have not been amended since the date of this Warrant to increase the number of
such securities or to decrease the exercise price, exchange price or conversion price of such securities (for purposes of clarity, any decrease in the exercise price, exchange price or conversion price of such securities shall not be deemed an
amendment thereto, if such decrease is as a result of any price-based anti-dilution provision contained in such securities prior to the date hereof), and (c) other securities issued to financial institutions, institutional investors or lessors in
connection with credit arrangements, equipment financings or similar transactions (and not for the purpose of raising capital) approved by a majority of disinterested directors of the Company. In addition, for the avoidance of doubt, “Excluded
Issuances” also include the filing of any registration statement of the Company with the Commission registering securities of the Company, or the filing of any amendments or supplements thereto, provided that the determination of whether sales
under any such registration statement is an Excluded Issuance will be determined based on the preceding clauses (a) to (c) hereof.
“Fundamental Transaction” means (a) the Company, directly or indirectly, in one or more related transactions effects any merger or
consolidation of the Company with or into another Person, (b) the Company, directly or indirectly, effects any sale, lease, exclusive license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one
or a series of related transactions, (c) any, direct or indirect, purchase offer, scheme of arrangement, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares, ADRs or
ADSs are permitted to sell, tender, agree to cancel or exchange their shares for other securities, cash or property and has been accepted by the holders of fifty percent (50%) or more of the outstanding security holders of the Company (or, in the
case of a scheme of arrangement, the requisite majority to approve such scheme), (d) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares
or ADSs (but, for the avoidance of doubt, excluding any transaction, event or occurrence covered by Section 3(a)) or any compulsory share exchange pursuant to which the Ordinary Shares or ADSs are effectively converted into or exchanged
for other securities, cash or property, (e) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization,
recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than fifty percent (50%) of the outstanding voting shares of the Company (not including any shares held by the other Person or other
Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination).
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“Marketable Securities” means securities that (a) are tradable on an established national U.S. stock exchange or reported through
an established over-the-counter trading system and (b) are not subject to restrictions on transfer under the Securities Act, the Companies Act or contractual restrictions on transfer.
“Options” means any warrants or other rights or options to subscribe for or purchase Ordinary Shares or Convertible Securities.
“Ordinary Shares” means the “A” ordinary shares of the Company, par value USD $0.0109 per share, and any other class of securities
into which such securities may hereafter be reclassified or changed.
“Person” means any individual, sole proprietorship, partnership, limited liability company, corporation, joint venture, trust,
incorporated organization or government or department or agency thereof.
“Prospectus” means the prospectus or prospectuses included in any Registration Statement, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and by all other amendments and supplements to the prospectus, including post-effective amendments
and all material incorporated by reference in such prospectus or prospectuses.
“Registrable Securities” means (a) any ADSs (represented by ADRs), or Ordinary Shares held by Holder or issuable upon conversion,
exercise or exchange of any securities owned by Holder at any time (including Warrant ADSs exercisable upon exercise of this Warrant), and (b) any ADSs (represented by ADRs) or Ordinary Shares issued or issuable with respect to any shares
described in subsection (a) above by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization (it being understood that for purposes of this Warrant,
Holder shall be deemed to be a holder of Registrable Securities whenever Holder has the right to then acquire or obtain from the Company any Registrable Securities, whether or not such acquisition has actually been effected). As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities when (i) a Registration Statement covering such securities has been declared effective by the Commission and such securities have been disposed of pursuant to such
effective Registration Statement, (ii) such securities are sold under circumstances in which all of the applicable conditions of Rule 144 (or any similar provisions then in force) under the Securities Act are met, (iii) such securities are
otherwise transferred and such securities may be resold without subsequent registration under the Securities Act, or (iv) such securities shall have ceased to be outstanding.
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“Registration Statement” means any registration statement of the Company which covers any of the Registrable Securities pursuant
to the provisions of this Warrant, including the Prospectus, amendments and supplements to or replacements of such Registration Statement, including post-effective amendments, all exhibits and all materials incorporated by reference in such
Registration Statement.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“Share Equivalents” means any securities of the Company or its wholly owned subsidiaries which would entitle the holder thereof to
acquire at any time Ordinary Shares or ADSs, including, without limitation, any debt, preferred stock, right, option, warrant, ADR or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles
the holder thereof to receive, Ordinary Shares or ADSs.
“Stock Deemed Outstanding” means, at any given time, the sum of (i) the number of Ordinary Shares and ADSs actually outstanding at
such time, plus (ii) the number of Ordinary Shares issuable upon exercise of Options actually outstanding at such time, plus (iii) the number of Ordinary Shares issuable upon conversion or exchange of Convertible Securities (including ADSs)
actually outstanding at such time (treating as actually outstanding any Convertible Securities issuable upon exercise of Options actually outstanding at such time), in each case, regardless of whether the Options or Convertible Securities are
actually exercisable at such time; provided that Stock Deemed Outstanding at any given time shall not include shares owned or held by or for the account of the Company or any of its wholly owned
subsidiaries.
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trading Market” means the Nasdaq Global Market (or any successor to the Nasdaq Global Market), or any national securities exchange registered with
the Commission on which the ADSs are listed and which is then the primary trading market for the ADSs.
“Transfer Agent” means Computershare Investor Services (Ireland) Limited, the current transfer agent of the Company, and any
successor transfer agent of the Company.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the ADSs are then
listed or quoted on the Trading Market, the daily volume weighted average price of the ADSs for such date on the Trading Market on which the ADSs are then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New
York City time) to 4:00 p.m. (New York City time)), (b) if the ADSs are not then listed or quoted for trading on the Trading Market and if prices for the ADSs are then reported on the “Pink Market” of the OTC Markets Group, Inc. (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per ADS as reported, or (c) in all other cases, the fair market value of one ADS as determined by the Company and the Holder, provided that if the
Company and the Holder cannot agree on the fair market value of one ADS, such value shall be determined by an independent appraiser selected in good faith by the Holder and reasonably acceptable to the Company, the reasonable, actual and
documented fees and reasonable, actual and documented out-of-pocket expenses of which shall be paid by the Company.
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Section 2. Exercise.
(a) Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part,
at any time or times before the Expiration Date by delivery to the Company (or such other office or agency of the Company as it may designate by notice in writing to the registered Holder at the address of the Holder appearing on the books of the
Company) of a duly executed electronic copy of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”) and within one (1) Trading Day of the date said Notice of Exercise is delivered to the Company, the Company shall
have received payment of the aggregate Exercise Price of the Warrant ADSs thereby purchased by wire transfer or cashier’s check drawn on a United States bank or pursuant to the cashless exercise procedure specified in Section 2(c) below.
No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required. Notwithstanding anything herein to the contrary, the Holder shall not
be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant ADSs available hereunder and this Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the
Company for cancellation within three (3) Trading Days of the date the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant ADSs available
hereunder shall have the effect of lowering the outstanding number of Warrant ADSs purchasable hereunder in an amount equal to the applicable number of Warrant ADSs purchased. The Holder and the Company shall maintain records showing the number
of Warrant ADSs purchased and the date of such purchases. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the
purchase of a portion of the Warrant ADSs hereunder, the number of Warrant ADSs available for purchase hereunder at any given time may be different than the amount stated on the face hereof. For the avoidance of doubt, the Holder may request a
new Warrant upon the partial exercise of this Warrant.
In the event that immediately prior to the close of business on the Expiration Date, the VWAP of one (1) ADS is greater than the then applicable Exercise
Price, this Warrant shall be deemed to be automatically exercised as a “cashless exercise” pursuant to Section 2(c) below, and the Company or the Depositary, as applicable, shall deliver the applicable number of ADSs (represented by ADRs)
to the Holder pursuant to the provisions of Section 2(d) below.
(b) Exercise Price. The exercise price per ADS under this Warrant shall initially be $0.8000 (the “Initial Exercise Price”); provided that if the Company issues or causes the Depositary (as defined below) to issue any ADSs in the twelve (12) months following the Issue Date at a price per ADS less than the Initial Exercise Price,
then (i) the Initial Exercise Price will be automatically, without further action required from any party, reduced to match the lowest price per ADS at which the Company issued or caused the Depositary to issue any ADSs during such twelve (12)
month period and (ii) the Company shall provide written notice to the Holder within three (3) Business Days from the date of any such issuance and shall simultaneously issue the Holder a new Warrant Certificate reflecting the reduced Exercise
Price within the same three (3) Business Days. The Initial Exercise Price, as may be adjusted pursuant to this Warrant, is referred to herein as the “Exercise Price”.
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(c) Cashless Exercise. This Warrant may be exercised, in whole or in part, at any time by means of a “cashless exercise” in which the Holder
shall be entitled to receive a number of Warrant ADSs (represented by ADRs) equal to the quotient obtained by dividing [(A-B) (X)] by (A) (a “Cashless Exercise”), where:
(A) = the VWAP on the Trading Day immediately preceding the date on which Holder elects to exercise this Warrant by means of a “cashless exercise,” as set
forth in the applicable Notice of Exercise;
(B) = the Exercise Price, as adjusted hereunder; and
(X) = the number of Warrant ADSs (represented by ADRs) that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant
if such exercise were by means of a cash exercise rather than a cashless exercise or, if only a portion of this Warrant is being exercised, the portion of this Warrant being cancelled.
Notwithstanding any other provision of this Warrant, the issue of any Warrant ADSs (represented by ADRs) (or shares underlying such
Warrant ADSs) pursuant to any exercise or redemption of this Warrant (including any exercise or redemption made on a cashless basis pursuant to this Section 2(c) or otherwise) shall be conditional on the payment to the Company by the Holder,
whether by payment of the Exercise Price in cash or otherwise, of an amount in cash at least equal to the product of the nominal value of the “A” Ordinary Shares of the Company underlying the Warrant ADSs, the number of Warrant ADSs (represented
by ADRs) to be issued and the ADS Ratio.
If Warrant ADSs (represented by ADRs) are issued in such a cashless exercise, the parties acknowledge and agree that, in accordance with
Section 3(a)(9) of the Securities Act, the Warrant ADSs (represented by ADRs) shall take on the characteristics of the Warrants being exercised, and the holding period of the Warrant ADSs (represented by ADRs) being issued may be tacked on to the
holding period of this Warrant commencing as of the Issue Date. The Company agrees not to take any position contrary to this Section 2(c).
| (d) |
Mechanics of Exercise.
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(i) Delivery of Warrant ADSs Upon Exercise. Warrant ADSs (represented by ADRs) purchased hereunder shall be transmitted by the Depositary to
the Holder by crediting the account of the Holder’s prime broker with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) and the Warrant ADSs (represented by ADRs) are eligible for resale by the
Holder without volume or manner-of-sale limitations pursuant to Rule 144 or an available Registration Statement, and otherwise by physical delivery to the address specified by the Holder in the Notice of Exercise by the date that is two (2)
Trading Days after the delivery to the Company, by 11 a.m. (local time in New York City, New York) on a Trading Day, of the Notice of Exercise and payment of the aggregate Exercise Price as set forth above (including by Cashless Exercise) (such
date, the “Warrant ADS Delivery Date”). The Warrant ADSs (represented by ADRs) shall be deemed to have been issued, and the Holder or any other person so designated to be named therein shall be deemed to have become a holder of record of
such Warrant ADSs (represented by ADRs) for all purposes, as of the date this Warrant has been exercised, with payment to the Company of the Exercise Price (or by Cashless Exercise) and all taxes required to be paid by the Holder, if any,
pursuant to Section 2(d)(v) prior to the issuance of such Warrant ADSs (represented by ADRs), having been paid. If the Company fails for any reason to deliver to the Holder the Warrant ADSs (represented by ADRs) subject to a Notice of
Exercise by the Warrant ADS Delivery Date, other than a failure to deliver caused by the Holder’s failure to pay the applicable Exercise Price for such Warrant ADSs or to timely take such actions as are necessary to post such Warrant ADSs
(represented by ADRs) in DWAC, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant ADSs (represented by ADRs) subject to such exercise (based on the VWAP on the date of the
applicable Notice of Exercise) $0.8000 per Trading Day for each Trading Day after such Warrant ADS Delivery Date until such Warrant ADSs (represented by ADRs) are delivered or Holder rescinds such exercise. The Company agrees to maintain a
registrar (which may be the Depositary) that is a participant in the “FAST” program for so long as this Warrant remains outstanding and exercisable.
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(ii) Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder
and upon surrender of this Warrant, at or promptly after the time of delivery of the Warrant ADSs (represented by ADRs), deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant ADSs called for
by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
(iii) Rescission Rights. If the Company fails to cause the Depositary to transmit to the Holder the Warrant ADSs (represented by ADRs)
pursuant to Section 2(d)(i) by the Warrant ADS Delivery Date, other than a failure to deliver caused by the Holder’s failure to pay the applicable Exercise Price for such Warrant ADSs or to timely take such actions as are necessary to
post such Warrant ADSs (represented by ADRs) in DWAC, then the Holder will have the right to rescind such exercise and have its Exercise Price, if any, refunded by the Company.
(iv) Compensation for Buy-In on Failure to Timely Deliver Warrant ADSs Upon Exercise. In addition to any other rights available to the
Holder, if the Company fails to cause the Depositary to transmit to the Holder the Warrant ADSs (represented by ADRs) pursuant to an exercise on or before the Warrant ADS Delivery Date and such failure is not caused by any act or omission of the
Holder, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) ADSs (represented by ADRs) to deliver in satisfaction of a sale by the Holder of the Warrant ADS (represented by ADRs)
which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for
the ADSs (represented by ADRs) so purchased (provided, Holder exercises reasonable efforts to minimize the amount of such purchase price) exceeds (y) the amount obtained by multiplying (1) the number of
Warrant ADSs (represented by ADRs) that the Company was required to deliver to the Holder in connection with the exercise at issue by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant ADSs for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of
ADSs (represented by ADRs) that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases ADSs (represented by ADRs) having a total purchase price of $11,000
to cover a Buy-In with respect to an attempted exercise to acquire Warrant ADSs (represented by ADRs) with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy- In and, upon request of the Company, evidence of the amount of such loss.
Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s
failure to timely deliver Warrant ADSs (represented by ADRs) upon exercise of the Warrant as required pursuant to the terms hereof.
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(v) No Fractional ADSs or Scrip. No fractional ADSs (represented by ADRs) or scrip representing fractional ADSs (represented by ADRs) shall
be issued upon the exercise of this Warrant. As to any fraction of an ADS which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall round up to the next whole ADS (represented by and ADR).
(vi) Charges, Taxes and Expenses. Subject to applicable law or regulation, the issuance of this Warrant and the Warrant ADSs (represented by
ADRs) shall be made without charge to the Holder for any stamp duty, issue or transfer tax or other incidental expense in respect of the issuance of this Warrant and Warrant ADSs (represented by ADRs) (but not any subsequent transfer of this
Warrant or any Warrant ADSs (represented by ADRs) so issued), all of which taxes and expenses shall be paid by the Company, and such Warrant ADSs (represented by ADRs) shall be issued in the name of the Holder or in such name or names as may be
directed by the Holder; provided, however, that in the event that Warrant ADSs (represented by ADRs) are to be issued in a name other than the name of the Holder,
this Warrant when surrendered for exercise shall be accompanied by a completed Assignment Form in the form attached hereto (the “Assignment Form”) duly executed by the Holder and the Company may require, as a condition thereto, the payment
of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all fees of the Depositary required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another
established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant ADSs (represented by ADRs).
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(vii) Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this
Warrant, pursuant to the terms hereof.
(e) Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not
have the right to exercise any portion of this Warrant, pursuant to this Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder
(together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes
of the foregoing sentence, the number of Ordinary Shares beneficially owned by the Holder and its Affiliates shall include the number of Ordinary Shares underlying the Warrant ADSs with respect to which such determination is being made, but shall
exclude the number of Ordinary Shares underlying the Warrant ADSs which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates, and (ii) exercise or
conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Share Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained
herein beneficially owned by the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is
solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other
securities owned by the Holder together with any Affiliates) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership
Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the
Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding Ordinary Shares, a Holder may rely on the number of outstanding shares of Ordinary Shares as
reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company, or (C) a more recent written notice from the Company or the Transfer Agent
or the Depositary setting forth the number of Ordinary Shares outstanding. Upon the written request of a Holder, the Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of Ordinary Shares then
outstanding. In any case, the number of outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates since the date as of
which such number of outstanding Ordinary Shares was reported. The “Beneficial Ownership Limitation” shall be 9.99% of the number of Ordinary Shares outstanding immediately after giving effect to the applicable issuance of the Warrant ADSs
(represented by ADRs)issuable upon exercise of this Warrant, provided that the Holder may decrease such Beneficial Ownership Limitation upon written notice to the Company. The provisions of this
paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended
Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
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(f) No Violation. The Company shall take all such actions as may be necessary to ensure that all such Warrant ADSs (represented by ADRs) are
issued without any rights of pre-emption in favor of any other person and without violation by the Company of any applicable law or governmental regulation or of any requirements of any domestic securities exchange upon which Ordinary Shares,
ADSs (represented by ADRs), or other securities constituting Warrant ADSs (represented by ADRs) or into which such Warrant ADSs (represented by ADRs) may be converted or exchanged may be listed at the time of such exercise (except for official
notice of issuance which shall be immediately delivered by the Company upon each such issuance).
(g) Listing. Promptly following the date of this Warrant Certificate the Company shall cause the Warrant ADSs
(represented by ADRs) to be listed on the Trading Market, and shall maintain such listing through the time of such exercise and the holding of the Warrant ADSs by the Holder, and shall assure that it and the Depositary shall, at all times
maintain, for the benefit of the Holder, (i) that number of ADSs underlying the Warrant ADSs available for issuance in connection with the exercise of this Warrant Certificate under a registration statement on Form F-3 in accordance with Section
4, and (ii) that number of ADRs available for issuance in connection with the exercise of this Warrant Certificate under a registration statement on Form F-6.
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Section 3. Certain Adjustments. In addition to any adjustments to the Exercise Price pursuant to Section
2(b) and in order to prevent dilution of the purchase rights granted under this Warrant Certificate, the Exercise Price and the number of Warrant ADSs (represented by ADRs) issuable upon exercise of this Warrant Certificate shall be subject
to adjustment from time to time as provided in this Section 3.
(a) Adjustment to Exercise Price Upon Issuance of Ordinary Shares or ADSs. Subject to Section 3(c), if the
Company shall, at any time after the date hereof (the “Issue Date”), issue or sell any Ordinary Shares, whether directly or indirectly by way of Options or Convertible Securities (including through the issuance of ADSs (represented
by ADRs) other than in an Excluded Issuance or any event described in Section 3(d) or (e)), without consideration or for consideration per share less than the Exercise Price in effect immediately prior to such issuance or sale,
then immediately upon such issuance or sale, the Exercise Price in effect immediately prior to such issuance or sale shall be reduced (and in no event increased) to an Exercise Price equal to the quotient obtained by dividing:
(i) the sum of (A) the product obtained by multiplying the Stock Deemed Outstanding immediately prior to such issuance or sale (or deemed issuance
or sale) by the Exercise Price then in effect plus (B) the aggregate consideration, if any, received by the Company upon such issuance or sale (or deemed issuance or sale); by
(ii) the sum of (A) the Stock Deemed Outstanding immediately prior to such issuance or sale (or deemed issuance or sale) plus (B) the aggregate
number of Ordinary Shares issued or sold (or deemed issued or sold) by the Company in such issuance or sale (or deemed issuance or sale);
provided, for the avoidance of doubt, the number of Warrant ADSs (represented by ADRs) issued
pursuant to this Warrant Certificate will not be adjusted in the event that the Exercise Price is adjusted under Section 3(a).
(b) Effect of Certain Events on Adjustment to Exercise Price. For purposes of determining the adjusted Exercise Price
under Section 3(a), the following shall be applicable:
(i) Issuance of Options. If the Company shall, at any time or from time to time after the date hereof, in any manner grant or sell (whether
directly or by assumption in a merger or otherwise) any Options, whether or not such Options or the right to convert or exchange any Convertible Securities issuable upon the exercise of such Options are immediately exercisable, and the price per
share (determined as provided in this Section 3(b)(i) and in Section 3(b)(v)) for which Ordinary Shares (or equivalent securities) are issuable upon the exercise of such Options or upon the conversion or exchange of Convertible
Securities issuable upon the exercise of such Options is less than the Exercise Price in effect immediately prior to the time of the granting or sale of such Options, then the total maximum number of Ordinary Shares (or equivalent securities)
issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting or sale of
such Options (and thereafter shall be deemed to be outstanding for purposes of adjusting the Exercise Price under Section 3(a)), at a price per share equal to the quotient obtained by dividing:
(A) the sum (which sum shall constitute the applicable consideration received for purposes of Section 3(a)) of (1) the total amount, if
any, received or receivable by the Company as consideration for the granting or sale of all such Options, plus (2) the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus
(3), in the case of such Options which relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable to the Company upon the issuance or sale of all such Convertible Securities and the conversion or
exchange of all such Convertible Securities, by
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(B) the total maximum number of Ordinary Shares issuable upon the exercise of all such Options or upon the conversion or exchange of all
Convertible Securities issuable upon the exercise of all such Options.
Except as otherwise provided in Section 3(b)(iii), no further adjustment of the Exercise Price shall be made upon the actual issuance of Ordinary
Shares (or equivalents) or of Convertible Securities upon exercise of such Options or upon the actual issuance of Ordinary Shares (or equivalents) upon conversion or exchange of Convertible Securities issuable upon exercise of such Options.
(ii) Issuance of Convertible Securities. If the Company shall, at any time or from time to time after the Issue Date, in any manner grant or
sell (whether directly or by assumption in a merger or otherwise) any Convertible Securities, whether or not the right to convert or exchange any such Convertible Securities is immediately exercisable, and the price per share (determined as
provided in this Section 3(b)(ii) and in Section 3(b)(v)) for which Ordinary Shares (or equivalent securities) are issuable upon the conversion or exchange of such Convertible Securities is less than the Exercise Price in effect
immediately prior to the time of the granting or sale of such Convertible Securities, then the total maximum number of Ordinary Shares issuable upon conversion or exchange of the total maximum amount of such Convertible Securities shall be deemed
to have been issued as of the date of granting or sale of such Convertible Securities (and thereafter shall be deemed to be outstanding for purposes of adjusting the Exercise Price pursuant to Section 3(a)), at a price per share equal to the
quotient obtained by dividing:
(A) the sum (which sum shall constitute the applicable consideration received for purposes of Section 3(a)) of (1) the total amount, if
any, received or receivable by the Company as consideration for the granting or sale of such Convertible Securities, plus (2) the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or
exchange of all such Convertible Securities, by
(B) the total maximum number of Ordinary Shares (or equivalent securities) issuable upon the conversion or exchange of all such Convertible
Securities.
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Except as otherwise provided in Section 3(b)(iii), (A) no further adjustment of the Exercise Price shall be made upon the actual issuance of
Ordinary Shares (or equivalents) upon conversion or exchange of such Convertible Securities and (B) no further adjustment of the Exercise Price shall be made by reason of the issue or sale of Convertible Securities upon exercise of any Options to
purchase any such Convertible Securities for which adjustments of the Exercise Price have been made pursuant to the other provisions of this Section 3(b).
(iii) Change in Terms of Options or Convertible Securities. Upon any change in any of (A) the total amount received or
receivable by the Company as consideration for the granting or sale of any Options or Convertible Securities referred to in Section 3(b)(i) or (ii), (B) the minimum aggregate amount of additional consideration, if any, payable to
the Company upon the exercise of any Options or upon the issuance, conversion or exchange of any Convertible Securities referred to in Section 3(b)(i) or (ii), (C) the rate at which Convertible Securities referred to in Section
3(b)(i) or (ii) are convertible into or exchangeable for Ordinary Shares (or equivalent securities), or (D) the maximum number of Ordinary Shares (or equivalent securities) issuable in connection with any Options referred to in Section
3(b)(i) or any Convertible Securities referred to in Section 3(b)(ii) (in each case, other than in connection with an Excluded Issuance), then (whether or not the original issuance or sale of such Options or Convertible Securities
resulted in an adjustment to the Exercise Price pursuant to this Section 3) the Exercise Price in effect at the time of such change shall be adjusted or readjusted, as applicable, to the Exercise Price which would have been in effect at
such time pursuant to the provisions of this Section 3 had such Options or Convertible Securities still outstanding provided for such changed consideration, conversion rate or maximum number of shares, as the case may be, at the time
initially granted, issued or sold, but only if as a result of such adjustment or readjustment the Exercise Price then in effect is reduced.
(iv) Treatment of Expired or Terminated Options or Convertible Securities. Upon the expiration or termination of
any unexercised Option (or portion thereof) or any unconverted or unexchanged Convertible Security (or portion thereof) for which any adjustment (either upon its original issuance or upon a revision of its terms) was made pursuant to this Section
3 (including without limitation upon the redemption or purchase for consideration of all or any portion of such Option or Convertible Security by the Company), the Exercise Price then in effect hereunder automatically shall be changed to
the Exercise Price which would have been in effect at the time of such expiration or termination had such unexercised Option (or portion thereof) or unconverted or unexchanged Convertible Security (or portion thereof), to the extent outstanding
immediately prior to such expiration or termination, never been issued.
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(v) Calculation of Consideration Received. If the Company shall, at any time or from time to time after the Issue Date, issue or sell, or
pursuant to Section 3(b) be deemed to have issued or sold, any Ordinary Shares, Options or Convertible Securities: (A) for cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor;
(B) for Marketable Securities, the amount of consideration received therefor shall be deemed to be the market price (as reflected on any securities exchange, quotation system or association or similar pricing system covering such security) for
such securities as of the end of business on the date of receipt of such securities; (C) for consideration other than cash or Marketable Securities, the amount of consideration received therefor shall be deemed to be the fair value of such
consideration; (D) for no specifically allocated consideration in connection with an issuance or sale of other securities of the Company, together comprising one integrated transaction, the amount of consideration received therefor shall be
deemed to be to be the fair value of such portion of the aggregate consideration received by the Company in such transaction as is attributable to such Ordinary Shares, Options or Convertible Securities, as the case may be, issued in such
transaction; or (E) to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving corporation, the amount of consideration received therefor shall be deemed to be the fair value of such portion of
the net assets and business of the non-surviving entity as is attributable to such Ordinary Shares, Options or Convertible Securities, as the case may be, issued to such owners. The net amount of any cash consideration and the fair value of any
consideration other than cash or Marketable Securities shall be determined in accordance with Section 1028 of the Companies Act and, to the extent necessary or required, in good faith jointly by the Board of Directors of the Company and the
Holder.
(vi) Record Date. For purposes of any adjustment to the Exercise Price or the number of Warrant ADSs in accordance with this Section 3,
or any adjustment to the number of Warrant ADSs pursuant to Section 3(c) or 3(d), in case the Company shall take a record of the holders of its Ordinary Shares (or equivalent securities) for the purpose of entitling them (A) to
receive a dividend or other distribution payable in Ordinary Shares, Options or Convertible Securities or (B) to subscribe for or purchase Ordinary Shares, Options or Convertible Securities, then such record date shall be deemed to be the date of
the issue or sale of the Ordinary Shares deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.
(vii) Treasury Shares. The number of Ordinary Shares (or equivalent securities) outstanding at any given time shall not include shares owned
or held by or for the account of the Company or any of its wholly-owned subsidiaries, and the disposition of any such shares (other than the cancellation or retirement thereof or the transfer of such shares among the Company and its wholly-owned
subsidiaries) shall be considered an issue or sale of Ordinary Shares for the purpose of this Section 3.
(c) Adjustment to Exercise Price and Warrant ADSs Upon Dividend, Subdivision or Combination of Ordinary Shares. If the Company shall,
at any time or from time to time after the Issue Date, (i) pay a dividend or make any other distribution upon the Ordinary Shares or any other capital stock of the Company payable in Ordinary Shares or in Options or Convertible Securities, or
(ii) subdivide (by any stock split, recapitalization or otherwise) its outstanding Ordinary Shares (or equivalent securities) into a greater number of shares, the Exercise Price in effect immediately prior to any such dividend, distribution or
subdivision shall be proportionately reduced and the number of Warrant ADSs (represented by ADRs) issuable upon exercise of this Warrant Certificate shall be proportionately increased. If the Company at any time combines (by combination, reverse
stock split or otherwise) its outstanding Ordinary Shares (or equivalent securities) into a smaller number of shares, the Exercise Price in effect immediately prior to such combination shall be proportionately increased and the number of Warrant
ADSs (represented by ADRs) issuable upon exercise of this Warrant Certificate shall be proportionately decreased. Any adjustment under this Section 3(c) shall become effective at the close of business on the date the dividend, subdivision
or combination becomes effective.
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(d) Adjustment to Exercise Price and Warrant ADSs Upon Reorganization, Reclassification, Consolidation or Merger. Unless the Holder
otherwise consents (in its sole discretion), in the event of any (A) capital reorganization of the Company, (B) reclassification of the stock of the Company (other than a change in par value or from par value to no par value or from no par value
to par value or as a result of a stock dividend or subdivision, split-up or combination of shares), (C) Fundamental Transaction or (D) other similar transaction (other than any such transaction covered by Section 3(c)), in each case which
entitles the holders of Ordinary Shares (or equivalent securities) to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Ordinary Shares (or equivalent securities):
(i) this Warrant Certificate shall, immediately after such transaction, remain outstanding and shall thereafter, in lieu of or in addition to (as
the case may be) the number of Warrant ADSs (represented by ADRs) then exercisable under this Warrant Certificate, be exercisable for the kind and number of shares of stock or other securities or assets of the Company or of the successor Person
resulting from such transaction to which the Holder would have been entitled upon such transaction if the Holder had exercised this Warrant Certificate in full immediately prior to the time of such transaction and acquired the applicable number
of Warrant ADSs (represented by ADRs) then issuable hereunder as a result of such exercise (without taking into account any limitations or restrictions on the exercisability of this Warrant Certificate); and
(ii) appropriate adjustment (in form and substance satisfactory to the Holder) shall be made with respect to the Holder’s rights under this Warrant
Certificate to insure that the provisions of this Section 3 shall thereafter be applicable, as nearly as possible, to this Warrant Certificate in relation to any shares of stock, securities or assets thereafter acquirable upon exercise of
this Warrant Certificate (including, in the case of any transaction in which the successor or purchasing Person is other than the Company, an immediate adjustment in the Exercise Price to the value per share for the Ordinary Shares (or equivalent
securities) reflected by the terms of such transaction, and a corresponding adjustment immediately shall be made to the number of Warrant ADSs acquirable upon exercise of this Warrant Certificate, without regard to any limitations or restrictions
on exercise, if the value so reflected is less than the Exercise Price in effect immediately prior to such transaction).
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The provisions of this Section 3(d) shall similarly apply to successive reorganizations, reclassifications, Fundamental Transactions or similar
transactions.
Notwithstanding anything to the contrary contained herein, with respect to any corporate event or other transaction contemplated by this Section 3(d),
the Holder shall have the right to elect, prior to the consummation of such event or transaction, to exercise this Warrant instead of giving effect to Section 3(d).
(e) Other Dividends and Distributions. If the Company shall, at any time or from time to time after the Issue Date, make or declare, or fix a
record date for the determination of holders of Ordinary Shares (or equivalent securities) entitled to receive, a dividend or any other distribution payable in cash, securities of the Company (other than a dividend or distribution of shares of
Ordinary Shares, Options or Convertible Securities in respect of outstanding Ordinary Shares (or equivalent securities)) or other property, then, and in each such event, the Company shall ensure that provisions are made so that the Holder shall
receive upon exercise of this Warrant Certificate, in addition to the number of Warrant ADSs (represented by ADRs) receivable thereupon, the kind and amount of cash, securities of the Company or other property which the Holder would have been
entitled to receive had this Warrant Certificate been exercised in full into Warrant ADSs (represented by ADRs) on the date of such event and had the Holder thereafter, during the period from the date of such event to and including the date of
exercise, retained such cash, securities or other property receivable by them as aforesaid during such period, giving application to all adjustments called for during such period under this Section 3 with respect to the rights of the
Holder; provided that no such provision shall be made if the Holder receives, simultaneously with the distribution to the holders of Ordinary Shares (or equivalent securities), a dividend or other
distribution of such securities, cash or other property in an amount equal to the amount of such securities, cash or other property as the Holder would have received if this Warrant Certificate had been exercised in full into Warrant ADSs
(represented by ADRs) on the date of such event.
(f) Certain Events. If any event of the type contemplated by the provisions of this Section 3 but not expressly provided for by such
provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features in each case, other than with respect to any Excluded Issuance) occurs, then the Board of Directors of
the Company shall make an appropriate adjustment in the Exercise Price of this Warrant Certificate so as to protect the rights of the Holder in a manner consistent with the provisions of this Section 3; provided
that (i) no such adjustment pursuant to this Section 3(f) shall increase the Exercise Price or decrease the number of Warrant ADSs (represented by ADRs) issuable as otherwise determined pursuant to this Section 3 and (ii)
for the avoidance of doubt, no adjustment pursuant to this Section 3(f) shall be made in connection with an Excluded Issuance.
(g) Certificate as to Adjustment. As promptly as reasonably practicable following any adjustment of the Exercise Price, but in any event
not later than three business days thereafter, the Company shall furnish to the Holder a certificate of an executive officer setting forth in reasonable detail such adjustment and the facts upon which it is based and certifying the calculation
thereof. As promptly as reasonably practicable following the receipt by the Company of a written request by the Holder, but in any event not later than three business days thereafter, the Company shall furnish to the Holder a certificate of an
executive officer certifying the Exercise Price then in effect and the number of Warrant ADSs or the amount, if any, of other shares of stock, securities or assets then issuable upon exercise of this Warrant Certificate. Upon request of the
Holder, the Company shall issue a replacement Warrant Certificate reflecting the as-adjusted number of Warrant ADSs and the then-applicable Exercise Price, as set forth in Section 5(b)(iii).
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(h) Change in ADS Ratio. If, after the Issue Date, the ADS Ratio is increased or reduced, then the number of Warrant ADSs (represented by
ADRs) to be issued on exercise of this Warrant Certificate will be reduced or increased (respectively) in inverse proportion to the change in the ADS Ratio, and the Exercise Price per Warrant ADS will be increased or reduced (respectively) in
proportion to the change in the number Ordinary Shares issuable per ADS, so that the aggregate Exercise Price remains unchanged.
(i) Fundamental Transaction. If, at any time while this Warrant is outstanding, the Company effects a Fundamental Transaction, then, upon any
subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant ADS (represented by an ADR) that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at
the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of Ordinary Shares (or other securities) of the successor or acquiring corporation or of the Company, if it is the
surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares (or equivalent securities) for which this
Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall
be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one (1) Ordinary Share in such Fundamental Transaction, and the Company shall apportion the Exercise Price
among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares (or equivalent securities) are given any choice as to the securities,
cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall
cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant pursuant to written agreements in form
and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a
security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent
entity) equivalent to the Ordinary Shares (or equivalent securities) acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an
exercise price which applies the Exercise Price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares (or equivalent securities) pursuant to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such Exercise Price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is
reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction,
the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same
effect as if such Successor Entity had been named as the Company herein.
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(j) Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of Ordinary Shares (or equivalent securities) deemed to be issued and outstanding as of a given date shall be the sum of the number of Ordinary Shares (or equivalent securities)
(excluding treasury shares, if any) issued and outstanding.
(k) Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in
whatever form) on its Ordinary Shares (or equivalent securities), (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of its Ordinary Shares (or equivalent securities), (C) the Company shall authorize the
granting to all holders of its Ordinary Shares (or equivalent securities) rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be
required in connection with any reclassification of its Ordinary Shares (or equivalent securities), any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any
compulsory share exchange whereby its Ordinary Shares (or equivalent securities) are converted into other securities, cash or property, (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the
affairs of the Company, or (F) the Company seeks to engage in a Fundamental Transaction, then, in each case, the Company shall cause to be mailed to the Holder at its last address as it shall appear upon the Warrant Register (as defined below) of
the Company, at least twenty (20) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption,
rights or warrants, or if a record is not to be taken, the date as of which the holders of its Ordinary Shares of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which
such Fundamental Transaction, reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of its Ordinary Shares (or equivalent
securities) of record shall be entitled to exchange their Ordinary Shares (or equivalent securities) for securities, cash or other property deliverable upon such Fundamental Transaction, reclassification, consolidation, merger, sale, transfer or
share exchange; provided that the failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the corporate action required to be specified in such
notice. To the extent that any notice required to be provided hereunder may contain information that constitutes material, non-public information regarding the Company or any of its subsidiaries, the Company shall obtain the Holder’s prior
consent to receipt of such notice. If the Holder declines to receive any such notice pursuant to the immediately preceding sentence, the Company shall not be deemed to have breached its obligation to deliver such notice hereunder. The Holder
shall remain entitled to exercise this Warrant during the 20-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
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Section 4. Registration Rights.
(a) Registration.
(i) The Company shall prepare and file or cause to be prepared and filed with the Commission, no later than April 30, 2025
(the “Filing Deadline”), a registration statement for an offering to be made on a continuous basis pursuant to Rule 415 of the Securities Act registering the resale from time to time by the Holder of all Registrable Securities held by the
Holder (the “Resale Registration Statement”). The Resale Registration Statement shall be on Form F-3 or, if the use of Form F-3 is not then available to the Company, on Form F-1 or such other appropriate form permitting registration
of such Registrable Securities for resale by the Holder. The Company shall use reasonable best efforts to cause the Resale Registration Statement to be declared effective as soon as possible after filing, but in no event shall the Resale
Registration Statement be declared effective later than the earlier of (i) sixty (60) days following the Filing Deadline or (ii) ten (10) Business Days after the Commission notifies the Company that it will not review the Resale Registration
Statement, if applicable (the “Effectiveness Deadline”); provided, that the Effectiveness Deadline shall be extended by no more than ninety (90) days after the Filing Deadline if the Registration Statement is reviewed by, and receives
comments from, the Commission. Once effective, the Company shall keep the Resale Registration Statement continuously effective and supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not
available, to ensure that another registration statement is available, under the Securities Act at all times until such date as all Registrable Securities covered by the Resale Registration Statement have been disposed of in accordance with the
intended method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn (the “Effectiveness Period”). The Resale Registration Statement shall contain a prospectus in such form as to permit
the Holder to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) at any time beginning on the effective date for such Registration
Statement, and shall provide that such Registrable Securities may be sold pursuant to any method or combination of methods legally available to, and requested by, the Holder.
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(ii) The Company shall notify the Holder in writing of the effectiveness of the Resale Registration Statement as soon as practicable, and in any
event within one (1) Business Day after the Resale Registration Statement becomes effective, and shall furnish to Holder, without charge, such number of copies of the Resale Registration Statement (including any amendments, supplements and
exhibits), the prospectus contained therein (including each preliminary prospectus and all related amendments and supplements) and any documents incorporated by reference in the Resale Registration Statement or such other documents as the Holder
may reasonably request in order to facilitate the sale of the Registrable Securities in the manner described in the Resale Registration Statement.
(iii) Subject to the provisions of Section 4(a)(i) above, the Company shall promptly prepare and file with the Commission from time to time
such amendments and supplements to (or replacements of) the Resale Registration Statement and prospectus used in connection therewith as may be necessary to keep the Resale Registration Statement (or replacements thereof) effective and to comply
with the provisions of the Securities Act with respect to the disposition of all the Registrable Securities during the Effectiveness Period. If any Resale Registration Statement filed pursuant to Section 4(a)(i) is filed on Form F-3 and
thereafter the Company becomes ineligible to use such registration statement for secondary sales, the Company shall promptly notify the Holder of such ineligibility and shall file a shelf registration on Form F-1 or other appropriate form as
promptly as practicable (but no later than 14 calendar days after becoming ineligible to use Form F-3) to replace the Resale Registration Statement and use its best efforts to have the such replacement Resale Registration Statement declared
effective as promptly as practicable and shall cause such replacement Resale Registration Statement to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Resale Registration Statement is available or,
if not available, that another Resale Registration Statement is available, for the resale of all the Registrable Securities held by the Holder until all such Registrable Securities have been sold; provided, however, that at any time the Company
once again becomes eligible to use Form F-3, the Company shall cause such replacement Resale Registration Statement to be amended, or shall file a new replacement Resale Registration Statement, such that the Resale Registration Statement is once
again on Form F-3.
(iv) The Company represents and warrants that there are sufficient ADRs registered on a registration statement on Form F-6 and available for
issuance in respect of all Warrant ADSs issuable hereunder, and the Company covenants that it will cause a sufficient number of ADRs to remain registered on a registration statement on Form F-6 and available for issuance to satisfy the Company’s
obligations hereunder at all times that this Warrant is outstanding.
| (b) |
Rule 144 Reporting. With a view to making available to the Holder the benefits of Rule 144 and any other rule or regulation of the Commission that may at
any time permit the Holder to sell securities of the Company to the public without registration or pursuant to a registration on a Resale Registration Statement, the Company shall make and keep available adequate current public
information, as those terms are understood and defined in Rule 144.
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Section 5. Transfer of Warrant.
(a) Transferability. Subject to compliance with any applicable securities laws, this Warrant and all rights hereunder (including, without
limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the
form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and
deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion
of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned
this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within two (2) Trading Days of the date the Holder delivers to the Company a completed Assignment Form in the form attached hereto duly executed by the
Holder assigning all or any portion of this Warrant. This Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant ADSs (represented by ADRs) without having a new Warrant issued.
| (b) |
Replacement Warrants.
|
(i) This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a
written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 5(a), as to any transfer which may be involved in such
division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be
dated as of the Issue Date and shall be identical with this Warrant except as to the number of Warrant ADSs (represented by ADRs) issuable pursuant thereto.
(ii) Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and upon delivery
of an indemnity reasonably satisfactory to it (it being understood that a written indemnification agreement or affidavit of loss of the Holder shall be a sufficient indemnity) and, in case of mutilation, upon surrender of such Warrant for
cancellation to the Company, the Company at its own expense shall execute and deliver to the Holder, in lieu hereof, a new Warrant of like tenor and exercisable for an equivalent number of Warrant ADSs (represented by ADRs) as this Warrant so
lost, stolen, mutilated or destroyed; provided that, in the case of mutilation, no indemnity shall be required if this Warrant in identifiable form is surrendered to the Company for cancellation.
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(iii) Upon request by the Holder and surrender of this Warrant Certificate to the Company for replacement, the Company, at its own expense, shall
execute and deliver to the Holder in replacement of this Warrant Certificate a new Warrant Certificate of like tenor and exercisable for such number of Warrant ADSs (represented by ADRs) and at such Exercise Price as this Warrant shall be
exercisable for immediately prior to such request, after taking into account any adjustments to the number of Warrant ADSs and the Exercise Price has may have been made pursuant to the terms hereof.
(c) Transferee Representations. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the
transfer of this Warrant shall not be eligible for resale without volume or manner-of-sale restrictions or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the
Holder or transferee of this Warrant, as the case may be, deliver a written statement from the transferee to the Company certifying that the transferee is an “accredited investor” as defined in Rule 501(a) under the Securities Act, making the
representations and certifications set forth in Section 5(e) of this Warrant and making such additional representations as the Company may, after consultation with its counsel, require in order to confirm compliance with applicable
securities laws.
(d) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.
(e) Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that (i) it is an “accredited investor” as
defined in Rule 501(a) under the Securities Act and (ii) it is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant ADSs (represented by ADRs) issuable upon such exercise, for its own account and not with a view to or
for distributing or reselling such Warrant ADSs (represented by ADRs) or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act.
Section 6. Miscellaneous.
(a) No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth herein. Without limiting the rights of a Holder to receive Warrant ADSs (represented by ADRs) on a “cashless exercise,” in no event will the Company be
required to net cash settle an exercise of this Warrant.
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(b) Removal of Restrictive Legends. Neither this Warrant nor any certificates or ADRs evidencing Warrant ADSs shall
contain any legend restricting the transfer thereof in any of the following circumstances: (A) following any sale of this Warrant or such Warrant ADSs (represented by ADRs) issued or delivered to the Holder under or in connection herewith
pursuant to Rule 144, (B) if this Warrant or such Warrant ADSs (represented by ADRs) are eligible for sale under Rule 144(b)(1), or (C) if such legend is not required under applicable requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the staff of the Commission and including due to such securities being covered by a valid registration statement) (collectively, the “Unrestricted Conditions”). In such circumstances, the
Company shall seek to cause its counsel to issue a legal opinion to the Transfer Agent or Depositary, as applicable, if required by such Transfer Agent or Depositary to effect the issuance of Warrant ADSs (represented by ADRs), without a
restrictive legend or removal of the legend hereunder. If the Unrestricted Conditions are met at the time of issuance of this Warrant, the Warrant ADSs or such other securities of the Company issuable in connection with this Warrant, then this
Warrant, Warrant ADSs or other securities, as the case may be, shall be issued free of all legends.
(c) Replacement Warrant. The Company agrees that at such time as the Unrestricted Conditions have been satisfied it shall promptly (but in
any event within ten (10) business days) following written request from the Holder issue a replacement Warrant or replacement Warrant ADSs (represented by ADRs), or replacement shares in respect of such other securities, as the case may be, free
of all restrictive legends.
(d) Authorized Shares. The Company covenants that, during the period this Warrant is outstanding, it will reserve from its authorized and
unissued Ordinary Shares a sufficient number of Ordinary Shares to provide for the issuance of the Ordinary Shares and ADSs underlying this Warrant upon the exercise of any purchase rights under this Warrant. The Company further covenants that
its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Ordinary Shares and ADSs upon the exercise of the purchase rights under this Warrant. The Company will take all
such action as may be necessary, including giving directions to the Depositary, to assure that the Warrant ADSs (represented by ADRs) and the underlying Ordinary Shares may be issued as provided herein without violation of any applicable law or
regulation, or of any requirements of the Trading Market upon which the ADSs (represented by ADRs) are then listed. The Company covenants that all Warrant ADSs (represented by ADRs) and all Ordinary Shares underlying the Warrant ADSs will, upon
exercise of the purchase rights represented by this Warrant and payment for such Warrant ADSs in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, rights of pre-emption, liens and
charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
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(e) No Impairment. Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without
limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set
forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue unrestricted, fully
paid and nonassessable Warrant ADSs (represented by ADRs) upon the exercise of this Warrant, and (ii) use best efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may
be necessary to enable the Company to perform its obligations under this Warrant. Before taking any action which would result in an adjustment in the number of Warrant ADSs for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
(f) Rule 144 Compliance. With a view to making available to the Holder the benefits of Rule 144 under the Securities Act and any other rule
or regulation of the Commission that may at any time permit a holder to sell securities of the Company to the public without registration or pursuant to a Registration Statement, the Company shall:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;
(ii) use reasonable best efforts to file with the Commission in a timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(iii) furnish to the Holder, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule
144 under the Securities Act and of the Securities Act and the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may
reasonably request in connection with the sale of Warrant ADSs (represented by ADRs) without registration.
(g) Governing Law. This Warrant and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance
with, the law of the State of New York, without regard to principles of conflicts of laws that would result in the application of the laws of any other jurisdiction.
(h) Submission to Jurisdiction. The Company agrees that any suit, action or proceeding with respect to this Warrant or
any judgment entered by any court in respect thereof may be brought initially in the federal or state courts in New York, New York or in the courts of its own corporate domicile and irrevocably submits to the exclusive jurisdiction of each such
court for the purpose of any such suit, action, proceeding or judgment. This Section is for the benefit of the Holder only and, as a result, the Holder shall not be prevented from taking proceedings in any other courts with jurisdiction. To the
extent allowed by any applicable law, the Holder may take concurrent proceedings in any number of jurisdictions.
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(i) Waiver of Venue, Etc. The Company irrevocably waives to the fullest extent permitted by law any objection that it may now or hereafter
have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Warrant and hereby further irrevocably waives to the fullest extent permitted by law any claim that any such suit, action or proceeding brought
in any such court has been brought in an inconvenient forum. A final judgment (in respect of which time for all appeals has elapsed) in any such suit, action or proceeding shall be conclusive and may be enforced in any court to the jurisdiction
of which the Company is or may be subject, by suit upon judgment.
(j) Waiver of Jury Trial. THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS WARRANT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(k) No Waiver. No failure on the part of the Holder to exercise and no delay in exercising, and no course of dealing with respect to, any
right, power or privilege under this Warrant shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Warrant preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The remedies provided herein are cumulative and not exclusive of any remedies provided by law.
(l) Expenses. If the Company fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the
Company shall pay to the Holder such amounts as shall be sufficient to cover any actual, reasonable and documented attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or
in otherwise enforcing any of its rights, powers or remedies hereunder.
(m) Notices. All notices, requests, instructions, directions and other communications provided for herein (including any modifications of, or
waivers, requests or consents under, this Warrant) shall be given or made in writing (including by telecopy or email) delivered, if to the Company or the Holder, to its address specified on the signature pages hereto, or at such other address as
shall be designated by such party in a written notice to the other party. Except as otherwise provided in this Warrant, all such communications shall be deemed to have been duly given upon receipt of a legible copy thereof, in each case given or
addressed as aforesaid. All such communications provided for herein by telecopy shall be confirmed in writing promptly after the delivery of such communication (it being understood that non-receipt of written confirmation of such communication
shall not invalidate such communication).
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(n) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase
Warrant ADSs (represented by ADRs), and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any ADSs (represented by ADRs) or any Ordinary Shares or as a
stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
(o) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be
entitled to seek specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby
agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
(p) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall be
binding upon and inure to the benefit of the successors and permitted assigns of the Company and the successors and permitted assigns of the Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time
of this Warrant and shall be enforceable by the Holder or any holder of Warrant ADSs (represented by ADRs).
(q) Amendments, Etc. Except as otherwise expressly provided in this Warrant, any provision of this Warrant may be modified or supplemented
only by an instrument in writing signed by the Company and the Holder.
(r) Severability. If any provision hereof is found by a court to be invalid or unenforceable, to the fullest extent permitted by any
applicable law the parties agree that such invalidity or unenforceability shall not impair the validity or enforceability of any other provision hereof.
(s) Currency. Unless otherwise indicated, all dollar amounts referred to in this Warrant are in United States Dollars (“US Dollars”).
All amounts owing under this Warrant shall be paid in US Dollars. All amounts denominated in other currencies shall be converted in the US Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate”
means, in relation to any amount of currency to be converted into US Dollars pursuant to this Warrant, the US Dollar exchange rate as published in the Wall Street Journal (NY edition) on the relevant date of calculation.
(a) Captions. The captions and section headings appearing herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Warrant.
(b) Counterparts. This Warrant may be executed in any number of counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Warrant by signing any such counterpart.
(Signature Page Follows)
26
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by its officer thereunto duly authorized as a Deed on the date first above indicated.
|
|
GIVEN UNDER THE COMMON SEAL OF
TRINITY BIOTECH PLC
By: /s/ John Gillard
Name: John Gillard
Title: Director
|
|
Address for Notices:
Trinity Biotech plc
IDA Business Park,
Bray, Co. Wicklow, Ireland
A98 H5C8
Attention: John Gillard, CEO
Telephone: +353 1 276 9800
Email: Lennotice@trinitybiotech.com
With a copy to (which shall not constitute notice):
Carter Ledyard & Milburn LLP
28 Liberty Street, New York, NY 10005
Attention: Steven J. Glusband, Esq.
Email: glusband@clm.com
|
[Signature Page to Warrant 500k ADS]
Accepted and Agreed,
Perceptive Credit Holdings II, LP
By: Perceptive Credit Opportunities GP, LLC, its general partner
| By: | /s/Sandeep Dixit | |
|
|
Name: Sandeep Dixit
Title: Chief Credit Officer
|
|
| By: | /s/ Sam Chawla | |
|
|
Name: Sam Chawla
Title: Portfolio Manager
|
|
Address for Notices:
c/o Perceptive Advisors LLC
51 Astor Place, 10th Floor
New York, NY 10003
Attn: Sandeep Dixit
Email: Sandeep@perceptivelife.com
PCOFReporting@perceptivelife.com
with a copy to (which shall not constitute notice):
Chapman and Cutler LLP
1270 Avenue of the Americas
30th Floor
New York, New York 10020-1708
Attention: Nicholas Whitney
E-mail: Whitney@chapman.com
[Signature Page to Warrant 500k ADS]
NOTICE OF EXERCISE
TO: TRINITY BIOTECH PLC
(1) The undersigned hereby elects to purchase American Depositary Receipts pursuant to the terms of the attached Warrant
and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
| (2) |
Payment shall take the form of (check applicable box):
☐ in lawful money of the United States; or
|
☐ the cancellation of such number of Warrant ADSs as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this
Warrant with respect to the maximum number of Warrant ADSs purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant ADSs (represented by ADRs) in the name of the undersigned or in such other name as is specified below:
Check applicable box and fill in information:
☐ The Warrant ADSs (represented by ADRs) shall be delivered to the following DWAC Account Number:
DTC Participant #:
Undersigned’s Account #
☐ The Warrant ADSs (represented by ADRs) shall be delivered by physical delivery of ADRs to:
[SIGNATURE OF HOLDER]
Name of Investing Entity:
Signature of Authorized Signatory of Investing Entity:
Name of Authorized Signatory:
Title of Authorized Signatory:
Date:
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name of Person to Whom Warrant is being Transferred:
Address of Person to Whom Warrant is being Transferred:
Number of Shares Subject to Warrant being Transferred:
Dated: ,
Holder’s Name:
Holder’s Signature:
Name of Authorized Signatory:
Title of Authorized Signatory:
Holder’s Address:
EXHIBIT 5.1
|
Trinity Biotech plc (the “Company”)
IDA Business Park
Bray
County Wicklow
Ireland
Private and Confidential
|
||
|
Our ref
|
21 March 2025
|
|
|
DJ/LC 4031/02
|
||
Dear Trinity Biotech plc
Registration Statement on Form F-3
| 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 4,290,000 American Depositary Shares (“ADSs”) (each ADS represents 20 A Ordinary Shares, par value $0.0109 per share (an “Ordinary Share”)), including up to (i) 1.79 million ADSs that Perceptive Credit
Holdings II, LP (“Perceptive II”) acquired from the Company on 30 January 2024 in connection with an acquisition pursuant to the terms of an asset and share purchase agreement (the “APA”) 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 the Company on 27 January
2022, pursuant to the terms of a credit agreement and guaranty, dated 15 December 2021 (the “Original Credit Agreement”),
among the Company 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 “Second Warrant”) that Perceptive III acquired from the Company on 30 January 2024, in connection with the second amendment and restatement of the Original Credit
Agreement, (iv) 1.0 million ADSs that are issuable upon exercise, from time to time, of an outstanding warrant ( the “Third Warrant”) that Perceptive III acquired from the Company on 23 December 2024, in connection with the third
amendment and restatement of the Original Credit Agreement and (v) 0.5 million ADSs that are issuable upon exercise, from time to time, of an outstanding warrant (the “Fourth Warrant” and, together with the Initial Warrant, the Second Warrant and the Third Warrant, collectively
the “Warrants”) that Perceptive II acquired from the Company on 23 December 2024, in connection with the extension of a deferred
consideration payment related to the Waveform acquisition. Pursuant to amendments to the Warrants in connection with the third amendment and restated of the Original Credit Agreement, the
Warrants have an exercise price of $0.8000 per ADS ($0.11 per A Ordinary Share), for an aggregate exercise price of up to $2,000,000. The Initial Warrant expires on 27 January 2029, the Second Warrant expires on 30 January 2031, and the
Third Warrant and Fourth Warrant expire on 23 December 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, a director 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 |
searches carried out by independent law researchers on our behalf against Trinity Biotech plc on 21 March 2025 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 (the “Searches”);
|
| 2.1.3 |
a copy of the APA;
|
| 2.1.4 |
a copy of the Initial Warrant;
|
| 2.1.5 |
a copy of the Second Warrant;
|
| 2.1.6 |
a copy of the Third Warrant;
|
| 2.1.7 |
a copy of the Fourth Warrant;
|
| 2.1.8 |
a copy of the first amendment to the Initial Warrant dated 21 February 2023;
|
| 2.1.9 |
a copy of the second amendment to the Initial Warrant dated 30 January 2024;
|
| 2.1.10 |
a copy of the third amendment to the Initial Warrant dated 23 December 2024;
|
2
| 2.1.11 |
a copy of the first amendment to the Second Warrant dated 23 December 2024;
|
| 2.1.12 |
a copy of the fourth amended and restated credit agreement and guaranty dated 27 February 2025;
|
| 2.1.13 |
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;
|
| 2.1.14 |
a copy of minutes of the shareholders of the Company held on 25 January 2022, set out at appendix B of the Company Certificate;
|
| 2.1.15 |
a copy of minutes of a meeting of the board of directors of the Company held on 25 January 2022, set out at appendix C of the Company Certificate;
|
| 2.1.16 |
a copy of minutes of the shareholders of the Company held on 30 September 2022, set out at appendix D of the Company Certificate;
|
| 2.1.17 |
a copy of minutes of a meeting of the board of directors of the Company held on 30 January 2024, set out at appendix E of the Company Certificate;
|
| 2.1.18 |
a copy of the written resolution of the board of directors of the Company passed on 23 December 2024, set out at appendix F of the Company Certificate; and
|
| 2.1.19 |
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 Letter. 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
| 3.3 |
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.
|
| 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
| 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;
|
| 4.1.9 |
the resolutions of the board of directors of the Company on which we have placed reliance (including as referred to in the Corporate Certificate) were duly passed at properly constituted, convened and quorate meetings of the shareholders
and the board of directors of the Company respectively, and such resolutions have not been amended or rescinded and are in full force and effect;
|
| 4.1.10 |
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 Letter are complete and up-to-date and were validly adopted by the Company;
|
| 4.1.11 |
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;
|
| 4.1.12 |
the Warrants are valid, complete, duly executed and binding on the Company;
|
| 4.1.13 |
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;
|
| 4.1.14 |
that any reference to the Company “validly existing” in this Opinion Letter shall mean not struck off the Register of Companies in Ireland;
|
| 4.1.15 |
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;
|
| 4.1.16 |
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;
|
5
| 4.1.17 |
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;
|
| 4.1.18 |
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;
|
| 4.1.19 |
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;
|
| 4.1.20 |
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;
|
| 4.1.21 |
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;
|
| 4.1.22 |
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;
|
| 4.1.23 |
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;
|
| 4.1.24 |
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;
|
| 4.1.25 |
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;
|
| 4.1.26 |
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;
|
6
| 4.1.27 |
that a complete prospectus supplement will have been prepared and filed with the SEC describing the Shares offered thereby;
|
| 4.1.28 |
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;
|
| 4.1.29 |
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;
|
| 4.1.30 |
that, from the date of this Opinion Letter, no corporate, shareholder or other action will be taken to amend, alter or repeal the Constitution;
|
| 4.1.31 |
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;
|
| 4.1.32 |
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;
|
| 4.1.33 |
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;
|
| 4.1.34 |
at the time of the allotment of any Shares (including upon the grant or issuance of any rights, or securities conferring rights, to be allotted or which are convertible into Shares (“Convertible Rights”)), the Company will have a sufficient number of authorised but unissued Shares in its share capital (being at least equal to the number of Ordinary Shares the subject of the relevant allotment).
For the avoidance of doubt, an “allotment” includes an agreement to allot Shares;
|
| 4.1.35 |
at the time of the allotment of any Shares including upon the grant or issuance of any Convertible Right, to the extent required: (a) the directors of the Company will, in accordance with section 1021 of the Companies Act, have been
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 Shares the subject of such allotment (including upon the grant or issuance of a Convertible Right) and (b) the directors of the Company will, in accordance with section 1023 of the Companies
Act, have been empowered by the shareholders of the Company to allot such Shares or to grant or issue such Convertible Rights as if section 1022(1) of the Companies Act did not apply to such allotment;
|
| 4.1.36 |
where treasury shares are being re-issued, the maximum and minimum prices of re-issue shall have been determined in advance at a general meeting of the Company in accordance with the requirements of section 1078 of the Companies Act;
|
| 4.1.37 |
no Share will be allotted and issued for less than its nominal value, and no Share will be allotted and issued for consideration other than cash save in accordance with the provisions of sections 1027, 1028 and 1029 of the Companies Act;
|
7
| 4.1.38 |
no Share shall be issued by the entry of the name of the registered holder thereof in the register of members of the Company confirming that such Share has been issued fully paid-up;
|
| 4.1.39 |
the Company shall not, by virtue of or in connection with any ADSs to be allotted or issued, give any financial assistance, as contemplated by sections 82 and 1043 of the Companies Act for the purpose of any acquisition of shares in the
capital of the Company or any company which, from time to time, is the holding company of the Company, save as permitted by, or pursuant to an exemption to, the said sections 82 and 1043;
|
| 4.1.40 |
no proceedings have been or will be instituted or injunction granted against the Company to restrain it from issuing any Shares and the issue or giving of same would not be contrary to any state, government, court, state or
quasi-governmental agency, licencing authority, local or municipal government body or regulatory authority’s order, direction, guideline, recommendation, decision, licence or requirement;
|
| 4.1.41 |
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
|
| 4.1.42 |
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 Letter 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 APA (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).
|
8
| 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 |
a search at the Companies Registration Office is not conclusively capable of revealing whether or not a winding-up petition or a petition for the appointment of an examiner, receiver or liquidator has been presented or a resolution
passed for the winding-up of the Company. A search on the Index of Petitions and Winding-up Notices maintained at the Central Office of the High Court of Ireland is not capable of revealing whether or not a receiver has been appointed in
respect of the Company;
|
| 6.1.4 |
whilst each of the making of a winding-up order, the making of an order for the appointment of an examiner or the appointment of a receiver may be revealed by a search at the Companies Registration Office it may not be filed at the
Companies Registration Office immediately and, therefore, our Searches at the Companies Registration Office may not have revealed such matters. Similarly whilst a petition to wind-up the Company may be revealed by a search on Index of
Petitions and Winding-up Notices maintained at the Central Office of the High Court of Ireland, the making of a winding-up order may not be filed on the Index immediately and therefore our Searches may not have revealed such matters;
|
| 6.1.5 |
the position reflected in the Searches may not be fully up to date;
|
| 6.1.6 |
the Companies Act prohibits certain steps being taken except with the leave of the court against a company after the presentation of a petition for the appointment of an examiner. This prohibition continues if an examiner is appointed
for so long as the examiner remains appointed (maximum period of one hundred days or such period as the court in question may determine). Prohibited steps include steps taken to enforce any security over the company’s property, the
commencement or continuation of proceedings or execution or other legal process or the levying of distress against the company or its property and the appointment of a receiver;
|
| 6.1.7 |
under the provisions of the Companies Act, an examiner can be appointed on a petition to the Circuit Court, if certain criteria are met. It is not possible for anyone other than a party to the relevant proceedings or the solicitors on
record for such parties to inspect the Circuit Court files to ascertain whether a petition for the appointment of an examiner has been made in the Circuit Court, and we have made no searches or enquiries in this regard in respect of the
Company;
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| 6.1.8 |
this Opinion Letter does not deal with the tax (including stamp duty) treatment of the issuance, transfer and / or assignment of any ADSs or any payments in respect of any ADSs or any other tax matter;
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| 6.1.9 |
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.
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9
| 7 |
General
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| 7.1 |
This Opinion Letter is based upon, and limited to, the laws of Ireland 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. We have assumed, without enquiry, that there is nothing in the laws of any jurisdiction other than Ireland which would, or might, affect our opinions 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 Letter is expressed as of the date hereof and we assume no obligation to update this Opinion Letter.
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| 7.2 |
This Opinion Letter 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 Letter is confined strictly to the matters expressly stated herein and is not to be read as extending, by implication or otherwise, to any other matter.
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| 7.3 |
We hereby consent to the inclusion of this Opinion Letter 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.
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| 7.4 |
This Opinion Letter and the opinions given in it are governed by, and construed in accordance with, the laws of Ireland.
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| 7.5 |
Save where otherwise specified, a reference in this Opinion Letter to a clause, is to a clause of this Opinion Letter.
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Yours faithfully
/s/ Matheson LLP
MATHESON LLP
10
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
March 21, 2025