Trinity Biotech PLC F-3, filed Jun 21, 2024
Trinity Biotech PLC (TRIB)
F-3
2024-06-21
View Original
Added on
October 18, 2026
Registration No. 333-
As filed with the Securities and Exchange Commission on June 21, 2024
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TRINITY BIOTECH PLC
(Exact name of registrant as specified in its charter)
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Republic of Ireland
(State or other jurisdiction of incorporation or organization) |
Not Applicable
(I.R.S. Employer Identification No.) |
IDA Business Park
Bray, 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:
Steven J. Glusband, Esq.
Mary Brown, Esq.
Carter Ledyard & Milburn LLP
28 Liberty Street
New York, New York 10005
(212) 732-3200
David Fitzgibbon, Esq.
David Jones, Esq.
Matheson LLP
70 Sir John Rogerson's Quay
Dublin 2 Ireland
+353 1 232 2000
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check
the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the
Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the
extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date
as the Commission, acting pursuant to said Section 8(a), may determine.
The
information contained in this preliminary 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 June 21, 2024
P R O S P E C T U S
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TRINITY BIOTECH PLC
 $50,000,000
A Ordinary Shares
Warrants
Debt Securities
Subscription Rights
Units
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We may offer to the public from time to time in one or more series or issuances:
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A Ordinary Shares;
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warrants to purchase A Ordinary Shares or debt securities;
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debt securities (including convertible debt securities);
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subscription rights;
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or any combination of the above, separately or as units.
We refer to the A Ordinary Shares, warrants, debt securities, subscription rights and units collectively as “securities” in this prospectus. American Depositary Shares (each representing 20 A
Ordinary Shares, par value $0.0109 per share) (our “ADSs”) are listed on the NASDAQ Global Select Market (“Nasdaq”) under the symbol “TRIB.” On June 20, 2024, the last reported sale price of an ADS on Nasdaq was $2.47.
We have not yet determined whether any of the other securities that may be offered by this prospectus will be listed on any exchange, inter-dealer quotation system or over-the-counter market. If we
decide to seek listing of any such securities, a prospectus supplement relating to those securities will disclose the exchange, quotation system or market on which the securities will be listed and the date when we expect trading to begin.
This prospectus provides a general description of the securities we may offer. Each time we sell securities, we will provide specific terms of the securities offered in a
supplement to this prospectus. The prospectus supplement may also add, update, or change information contained in this prospectus. This prospectus may not be used to consummate a sale of securities unless accompanied by the applicable prospectus
supplement. You should read both this prospectus and any prospectus supplement together with additional information described under the heading “Where You Can Find More Information” and the documents incorporated or deemed to be incorporated by
reference carefully before you make your investment decision.
We will sell these securities directly to our shareholders or to purchasers or through agents on our behalf or through underwriters or dealers as designated from time to time. If
any agents or underwriters are involved in the sale of any of these securities, the applicable prospectus supplement will provide the names of the agents or underwriters and any applicable fees, commissions, or discounts. The prospectus supplement
for each offering of securities will describe in detail the plan of distribution for that offering. For general information about the distribution of securities offered, please see “Plan of Distribution” in
this prospectus on page 10.
The aggregate market value of our outstanding ADSs held by non-affiliates on June 13, 2024 as calculated in accordance with General Instruction I.B.5 of Form F-3, was approximately
$16,590,000. Pursuant to General Instruction I.B.5, in no event will we sell securities pursuant to this prospectus with a value of more than one-third of the aggregate market value of our ADSs held by non-affiliates in any 12-month period, so long
as the aggregate market value of our ADSs held by non-affiliates is less than $75,000,000.
Investing in these securities involves certain risks. Please carefully consider the “Risk Factors” in Item 3(D) of our most recent Annual Report on Form 20-F
incorporated by reference in this prospectus, the “Risk Factors” beginning on page 4 of this prospectus, and in any applicable prospectus supplement, for a discussion of the factors you should consider carefully before deciding to purchase these
securities.
Neither the Securities and Exchange Commission (the “Commission”) nor any state securities commission has approved or disapproved of the securities being offered by this
prospectus, or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2024.
You should rely only on the information contained or incorporated by reference in this prospectus. We have not authorized any other person to provide you with
different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume
that the information appearing in this prospectus is accurate only as of the date on the front cover of this prospectus. Our business, financial condition, results of operation and prospects may have changed since that date.
TABLE OF CONTENTS
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- ii -
This prospectus, including the information incorporated by reference into this prospectus, contains, and any prospectus supplement may include forward-looking statements within the meaning of Private
Securities Litigation Reform Act of 1995. These statements are only predictions and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any
future results, performance or achievements expressed or implied by the forward-looking statements. In some cases, you can identify forward-looking statements by terms including “anticipate,” “estimate,” “plan,” “project,” “potential,” “predict”
“continuing,” “ongoing,” “expect,” “believe,” “intend,” “may,” “should,” “will,” “would,” “could” and similar expressions intended to identify forward-looking statements. Forward-looking statements reflect our current views with respect to future
events and are based on assumptions and subject to risks and uncertainties. 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 ability to meet the continued listing requirements of Nasdaq and the impact of a potential de-listing of the ADSs on our ability to raise additional funds and other
potential development opportunities;
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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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We caution you to carefully consider these risks and not to place undue reliance on our forward-looking statements. Forward-looking statements should not be read as a guarantee of future performance
or results, and will not necessarily be accurate indications of the times at, or by which, that performance or those results will be achieved. Forward-looking statements are based on information available at the time they are made and/or management’s
good faith belief as of that time with respect to future events, and are subject to risks and uncertainties that could cause actual performance or results to differ materially from what is expressed in or suggested by the forward-looking statements.
Forward-looking statements speak only as of the date they are made. Unless we are required to do so under U.S. federal securities laws or other applicable laws, we do not assume an obligation to or
intend to update or revise any forward-looking statements. If we do update one or more forward-looking statements, no inference should be drawn that we will make additional updates with respect to those or other forward-looking statements. We caution
you not to give undue weight to such projections, assumptions and estimates.
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This prospectus is part of a registration statement we filed with the Securities Exchange Commission, or the Commission. This prospectus and the documents
incorporated by reference herein include important information about us, the securities being offered by us and other information you should know before investing. Any prospectus supplement may also add, update, or change information in this
prospectus. If there is any inconsistency between the information contained in this prospectus and any prospectus supplement, you should rely on the information contained in that particular prospectus supplement. This prospectus does not contain all
the information provided in the registration statement we filed with the Commission. You should read this prospectus together with the additional information about us described in the sections below entitled “Incorporation of Certain Information by
Reference” and “Where You Can Find More Information.” You should rely only on information contained in, or incorporated by reference into, this prospectus. We have not authorized anyone to provide you with information different from that contained
in, or incorporated by reference into, this prospectus. The information contained in this prospectus is accurate only as of the date on the front cover of the prospectus and information we have incorporated by reference in this prospectus is accurate
only as of the date of the document incorporated by reference. You should not assume that the information contained in, or incorporated by reference into, this prospectus is accurate as of any other date.
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.
ABOUT TRINITY BIOTECH PLC
The Group is a commercial stage biotechnology company focused on diabetes management solutions and human diagnostics, including wearable biosensors. We develop, acquire,
manufacture and market diagnostic systems, including both reagents and instrumentation, for the point-of-care and clinical laboratory segments of the diagnostic market. We have recently entered the wearable biosensor industry, with the 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. Our products are used to detect infectious
diseases and to quantify the level of Haemoglobin A1c and other chemistry parameters in serum, plasma and whole blood.
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.
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. We
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, United States. Our website is www.trinitybiotech.com. The information in our website is not incorporated by reference herein.
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CGM Business and Credit Agreement Amendment
On January 30, 2024, we entered into a definitive agreement to acquire the biosensor assets, including the CGM assets, of privately held Waveform for $12.5 million in cash and
the 1.8 million ADSs (as adjusted to give effect to the ADS Ratio Change, as defined below) issued to Perceptive Credit Holdings II, L.P (“Perceptive II”), in its capacity as a lender to Waveform, plus contingent consideration.
In connection with the acquisition of the Waveform assets (the “Waveform Acquisition”), we amended our Amended and Restated Credit Agreement and Guaranty (the “Credit Agreement”)
with Perceptive Credit Holdings III, L.P (“Perceptive III” and, together with Perceptive II, “Perceptive”) to, among other things, fund the Waveform Acquisition, provide for $9.5 million of additional funding for general corporate purposes, reduce
the interest rates and early repayment penalty and provide for additional liquidity of $6.5 million, which the Company drew down in full on April 22, 2024 (the “Delayed Draw Term Loan Borrowing”). Perceptive received new warrants to purchase 0.5
million ADSs (as adjusted to give effect to the ADS Ratio Change), which, along with warrants to previously issued to Perceptive to purchase 0.5 million ADSs (as adjusted to give effect to the ADS Ratio Change), have an exercise price of $2.20 (as
adjusted to give effect to the ADS Ratio Change).
On January 31, 2024, we also announced that we had entered into a non-binding Letter of Intent with Bayer for a joint partnership to launch a CGM biosensor device into China and
India
ADS Ratio Change
On February 23, 2024, we effected a ratio change of the ADSs from one ADS representing four Class A Ordinary Shares to one ADS representing 20
Class A Ordinary Shares (the “ADS Ratio Change”). For existing ADS holders, the ADS Ratio Change had the same effect as a one-for-five reverse ADS split.
Receipt of De-Listing Notice
On May 22, 2024, we received a determination letter from Nasdaq notifying us that Nasdaq had determined to delist our ADSs from the Nasdaq Global Select Market based upon our non-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. We have submitted a request for a hearing before the Hearings Panel (the
“Panel”) and that request has automatically stayed any suspension or delisting action pending the hearing and the expiration of any additional extension period granted by the Panel following the hearing. There can be no assurance that the Panel
will grant us an additional extension period following a hearing or that we will ultimately satisfy the minimum MVPHS requirement and other applicable requirements for continued listing on Nasdaq. If the ADSs are delisted from Nasdaq and we are
unable to successfully transfer the listing of the ADSs to the Nasdaq Capital Market, the ADSs would likely then trade only in the over-the-counter market, which would adversely affect the liquidity and marketability of our ADSs.
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An investment in our securities involves a high degree of risk. Our business, financial condition or results of operations could be adversely affected by any of these risks. You should carefully
consider the risks described below, in our Annual Report on Form 20-F filed with the U.S. Securities and Exchange Commission (the “Commission”) on April 30, 2024, and in the other information contained or incorporated by reference in this prospectus.
The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations. Past financial performance may not be a
reliable indicator of future performance, and historical trends should not be used to anticipate results or trends in future periods. If any of these risks actually occurs, our business, business prospects, financial condition or results of
operations could be seriously harmed. This could cause the trading price of the ADSs to decline, resulting in a loss of all or part of your investment.
Risks Related to Ownership of the ADSs
Our failure to meet the continued listing requirements of Nasdaq could result in a de-listing of the ADSs and penny stock trading.
There can be no assurance that we will be able to meet all of the criteria necessary for Nasdaq to allow us to remain listed.
On November 21, 2023, we received a deficiency letter from the Listing Qualifications Department of Nasdaq (the “Staff”) notifying us that we were 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 on the Nasdaq Global Select Market, registrants are required to maintain a minimum MVPHS
of US$15 million. A failure to meet the minimum MVPHS requirement exists if the deficiency continues for a period of 30 consecutive business days. In accordance with the Nasdaq Listing Rules, we had 180 calendar days from the date of the deficiency
notice, or until May 20, 2024, to regain compliance with the minimum MVPHS requirement.
On May 22, 2024, we received a determination letter (the “Determination Letter”) from the Staff notifying us that we had not regained compliance with the MVPHS Requirement by May 20, 2024 and that, unless we timely
requested a hearing before a Hearings Panel (the “Panel”), trading of the ADSs would be suspended and the ADSs would be delisted. We have submitted a request for a hearing before the Panel and that request has automatically stayed any suspension
or delisting action pending the hearing and the expiration of any additional extension period granted by the Panel following the hearing. Pursuant to the Nasdaq Listing Rules, the Panel has the authority to grant an extension to a date no later
than November 18, 2024 in order to regain compliance. There can be no assurance that the Panel will grant us an additional extension period following a hearing or that we will ultimately satisfy the minimum MVPHS requirement and other applicable
requirements for continued listing on the Nasdaq Stock Market.
We had also received a deficiency letter from the Staff, in April of 2023, 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
Requirement”) per ADS, as required by Nasdaq Listing Rule 5450(a)(1). To satisfy the Minimum Bid Price Requirement, we effected the ADS Ratio Change on February 23, 2024, pursuant to which the ADS to A Ordinary Share ratio changed from one ADS
representing four A Ordinary Shares to one ADS representing 20 A Ordinary Shares. For existing ADS holders, the ADS Ratio Change had the same effect as a one-for-five reverse ADS split. On March 8, 2024, the Staff notified us that they determined
that we regained compliance with Listing Rule 5450(a)(1). However, there can be no assurance that the ADSs will continue to meet the Minimum Bid Price Requirement.
If the ADSs are ultimately delisted from Nasdaq and we are unable to successfully transfer the listing of the ADSs to the Nasdaq Capital Market, the ADSs would likely then trade only in the
over-the-counter market and the market liquidity of the ADSs could be adversely affected and their market price could decrease. If the ADSs were to trade on the over-the-counter market, selling the 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 the 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.
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Pursuant to General Instruction I.B.5, in no event will we sell securities pursuant to this prospectus with a value of more than one-third of the aggregate market value of our ADSs
held by non-affiliates in any 12-month period, so long as the aggregate market value of our ADSs held by non-affiliates is less than $75,000,000. The actual price of the securities that we will offer pursuant hereto will depend on a number of
factors that may be relevant as of the time of offer (see “Plan of Distribution” below).
CAPITALIZATION AND INDEBTEDNESS
Our capitalization and indebtedness will be set forth in a prospectus supplement to this prospectus or in a report on Form 6-K subsequently furnished to the Commission and
specifically incorporated herein by reference.
USE OF PROCEEDS
Except as otherwise provided in the applicable prospectus supplement, we intend to use the net proceeds from the sale of the securities covered by this prospectus for potential
future acquisitions and for general corporate purposes, which may include the repayment of debt, continued product development and commercialization. Additional information on the use of net proceeds from the sale of securities covered by this
prospectus may be set forth in the prospectus supplement relating to the specific offering.
DESCRIPTION OF SECURITIES WE MAY OFFER
This prospectus incorporates by reference or contains summary descriptions of the A Ordinary Shares, warrants, debt securities, subscription rights and units that we may offer and sell from time to
time. We may issue the debt securities as exchangeable and/or convertible debt securities exchangeable for or convertible into A Ordinary Shares. When one or more of these securities are offered in the future, a prospectus supplement will explain
the particular terms of the securities and the extent to which these general provisions may apply. These summary descriptions and any summary descriptions in the applicable prospectus supplement do not purport to be complete descriptions of the
terms and conditions of each security and are qualified in their entirety by reference to our constitution and by applicable Irish law and any other documents referenced in such summary descriptions and from which such summary descriptions are
derived. If any particular terms of a security described in the applicable prospectus supplement differ from any of the terms described herein, then the terms described herein will be deemed superseded by the terms set forth in that prospectus
supplement.
We may issue securities in book-entry form through one or more depositaries, such as The Depository Trust Company, Euroclear or Clearstream, named in the applicable prospectus
supplement. Each sale of a security in book-entry form will settle in immediately available funds through the applicable depositary, unless otherwise stated. We will issue the securities only in registered form, without coupons, although we may issue
the securities in bearer form if so specified in the applicable prospectus supplement. If any securities are to be listed or quoted on a securities exchange or quotation system, the applicable prospectus supplement will say so.
A description of our A Ordinary Shares can be found in our Annual Report on Form 20-F for the fiscal year ended December 31, 2023, which is incorporated herein by reference.
DESCRIPTION OF ADSs REPRESENTING OUR ORDINARY SHARES
The primary trading market for our ADSs is the NASDAQ Global Select Market, where our ADSs are listed and traded under the symbol “TRIB”. Following the ADS Ratio Change, the ratio of ADSs to
underlying A Ordinary Shares is now 1 ADS : 20 A Ordinary Shares. For a description of the ADSs, please refer to the Description of Securities Other than Equity Securities – American Depositary Shares, in our Annual Report on Form 20-F for the year
ended December 31, 2023, which is incorporated herein by reference. Because that description is a summary, it may not contain all of the information important to you. Accordingly, that description is qualified entirely by reference to the Deposit
Agreement and the form of American Depositary Receipt, which are filed as exhibits to the registration statement of which this prospectus forms a part. See “Where You Can Find More Information.”
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We may issue warrants to purchase A Ordinary Shares and/or debt securities in one or more series together with other securities or separately, as described in the applicable prospectus supplement.
Below is a description of certain general terms and provisions of the warrants that we may offer. Particular terms of the warrants will be described in the warrant agreements and the prospectus supplement for the warrants.
The applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
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the specific designation and aggregate number of, and the price at which we will issue, the warrants;
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the currency or currency units in which the offering price, if any, and the exercise price are payable;
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the designation, amount, and terms of the securities purchasable upon exercise of the warrants;
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if applicable, the exercise price for A Ordinary Shares and the number of A Ordinary Shares to be received upon exercise of the warrants;
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if applicable, the exercise price for our debt securities, the amount of debt securities to be received upon exercise, and a description of that series of debt securities;
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the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise
the warrants;
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whether the warrants will be issued in fully registered form or bearer form, in definitive or global form, or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of
the unit and of any security included in that unit;
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any applicable material U.S. federal income tax consequences;
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the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars, or other agents;
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the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;
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if applicable, the date from and after which the warrants and the A Ordinary Shares and/or debt securities will be separately transferable;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any other time;
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information with respect to book-entry procedures, if any;
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the anti-dilution provisions of the warrants, if any;
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any redemption or call provisions;
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whether the warrants are to be sold separately or with other securities as parts of units; and
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any additional terms of the warrants, including terms, procedures, and limitations relating to the exchange and exercise of the warrants.
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6
We may issue debt securities together with other securities or separately, as described in the applicable prospectus supplement, under an indenture to be entered into between us
and the trustee identified in the applicable prospectus supplement. The terms of the debt securities will include those stated in the indenture and those made part of the indenture by reference to the Trust Indenture Act of 1939, as in effect on the
date of the indenture. The indenture will be subject to and governed by the terms of the Trust Indenture Act of 1939.
We may issue the debt securities in one or more series with the same or various maturities, at par, at a premium, or at a discount. We will describe the particular terms of each
series of debt securities in a prospectus supplement relating to that series, which we will file with the Commission.
The prospectus supplement will set forth, to the extent required, the following terms of the debt securities in respect of which the prospectus supplement is delivered:
| • |
the title of the series;
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| • |
the aggregate principal amount;
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the issue price or prices, expressed as a percentage of the aggregate principal amount of the debt securities;
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any limit on the aggregate principal amount;
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the date or dates on which principal is payable;
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the interest rate or rates (which may be fixed or variable) or, if applicable, the method used to determine such rate or rates;
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the date or dates from which interest, if any, will be payable and any regular record date for the interest payable;
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the place or places where principal and, if applicable, premium and interest, is payable;
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the terms and conditions upon which we may, or the holders may require us to, redeem or repurchase the debt securities;
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the denominations in which such debt securities may be issuable, if other than denomination of $1,000, or any integral multiple of that number;
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| • |
whether the debt securities are to be issuable in the form of certificated debt securities or global debt securities;
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the portion of principal amount that will be payable upon declaration of acceleration of the maturity date if other than the principal amount of the debt securities;
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| • |
the currency of denomination;
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the designation of the currency, currencies or currency units in which payment of principal and, if applicable, premium and interest, will be made;
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| • |
if payments of principal and, if applicable, premium or interest, on the debt securities are to be made in one or more currencies or currency units other than the currency of denominations, the manner in which exchange rate with respect to
such payments will be determined;
|
| • |
if amounts of principal and, if applicable, premium and interest may be determined by reference to an index based on a currency or currencies, or by reference to a commodity, commodity index, stock exchange index, or financial index, then
the manner in which such amounts will be determined;
|
| • |
the provisions, if any, relating to any collateral provided for such debt securities;
|
| • |
any events of default;
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| • |
the terms and conditions, if any, for conversion into or exchange for A Ordinary Shares or ADSs;
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any depositaries, interest rate calculation agents, exchange rate calculation agents, or other agents; and
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the terms and conditions, if any, upon which the debt securities shall be subordinated in right of payment to other indebtedness of our company.
|
One or more debt securities may be sold at a substantial discount below their stated principal amount. We may also issue debt securities in bearer form, with or without coupons.
If we issue discount debt securities or debt securities in bearer form, we will describe material U.S. federal income tax considerations and other material special considerations which apply to these debt securities in the applicable prospectus
supplement.
We may issue debt securities denominated in or payable in a foreign currency or currencies or a foreign currency unit or units. If we do, we will describe the restrictions,
elections, and general tax considerations relating to the debt securities and the foreign currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
The debt securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depositary identified
in the prospectus supplement. Global securities will be issued in registered form and in either temporary or definitive form. Unless and until it is exchanged in whole or in part for individual debt securities, a global security may not be
transferred except as a whole by the depositary for such global security to a nominee of such depositary or by a nominee of such depositary to such depositary or another nominee of such depositary or by such depositary or any such nominee to a
successor of such depositary or a nominee of such successor. The specific terms of the depositary arrangement with respect to any debt securities of a series and the rights of and limitations upon owners of beneficial interests in a global security
will be described in the applicable prospectus supplement.
7
We may issue subscription rights to purchase our A Ordinary Shares. These subscription rights may be issued independently or together with any other security offered hereby and may or may not be
transferable by the shareholder receiving the subscription rights in such offering. In connection with any offering of subscription rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which
the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
The prospectus supplement relating to any subscription rights we offer, if any, will, to the extent applicable, include specific terms relating to the offering, including some or
all of the following:
| • |
the price, if any, for the subscription rights;
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| • |
the exercise price payable for each A Ordinary Share upon the exercise of the subscription rights;
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| • |
the number of subscription rights to be issued to each shareholder;
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the number and terms of the A Ordinary Shares which may be purchased per each subscription right;
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the extent to which the subscription rights are transferable;
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any other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise of the subscription rights;
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the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire;
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the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities; and
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if applicable, the material terms of any standby underwriting or purchase arrangement which may be entered into by us in connection with the offering of subscription rights.
|
The description in the applicable prospectus supplement of any subscription rights we offer will not necessarily be complete and will be qualified in its entirety by reference to
the applicable subscription right agreement, which will be filed with the Commission if we offer subscription rights. For more information on how you can obtain copies of the applicable subscription right agreement if we offer subscription rights,
see the sections entitled “Where You Can Find More Information” and “Incorporation of Information by Reference”. We urge you to read the applicable subscription right agreement and any applicable prospectus supplement in their entirety.
8
We may, from time to time, issue units comprised of one or more of the other securities that may be offered under this prospectus, in any combination.
Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of
a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately at any time, or at any time before a specified date.
Any applicable prospectus supplement will describe:
| • |
the material terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
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| • |
any material provisions relating to the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and
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| • |
any material provisions of the governing unit agreement that differ from those described above.
|
The description in the applicable prospectus supplement of any units we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable
unit agreement, which will be filed with the Commission if we offer units. For more information on how you can obtain copies of the applicable unit agreement if we offer units, see the sections entitled “Where You Can Find More Information” and
“Incorporation of Information by Reference”. We urge you to read the applicable unit agreement and any applicable prospectus supplement in their entirety.
The material Irish and U.S. federal income tax consequences relating to the purchase, ownership and disposition of any securities offered by the prospectus
will be set forth in a supplement to this prospectus.
9
We may sell the securities being offered hereby in any one or more of the following methods from time to time:
| • |
to or through one or more underwriters on a firm commitment or best efforts basis;
|
| • |
to or through dealers, who may act as agents or principals, including a block trade (which may involve crosses) in which a broker or dealer so engaged will attempt to sell as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
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| • |
through agents;
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through privately negotiated transactions;
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directly to purchasers, including our affiliates;
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| • |
purchases by a broker or dealer as principal and resale by such broker or dealer for its own account pursuant to this prospectus;
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exchange distributions and/or secondary distributions;
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ordinary brokerage transactions and transactions in which the broker solicits purchasers;
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to one or more underwriters for resale to the public or to investors;
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in “at the market offerings,” to or through a market maker or into an existing trading market, on an exchange or otherwise;
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transactions not involving market makers or established trading markets, including direct sales or privately negotiated transactions;
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transactions in options, swaps or other derivatives that may or may not be listed on an exchange; or
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in any combination of these methods of sale.
|
The prospectus supplement with respect to any offering of our securities will set forth the terms of the offering, including:
| • |
the name or names and addresses of any underwriters, dealers or agents;
|
| • |
the purchase price of the securities and the proceeds to us from the sale;
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any underwriting discounts and commissions or agency fees and other items constituting underwriters' or agents' compensation;
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| • |
the public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers;
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any securities exchanges or markets on which such securities may be listed; and
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| • |
any delayed delivery arrangements.
|
The distribution of the securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, at market prices prevailing at
the time of sale, at prices related to the prevailing market prices or at negotiated prices, or in a combination of any of the above noted pricing methods.
10
If securities are sold by means of an underwritten offering, we will execute an underwriting agreement with an underwriter or underwriters, and the names of the specific managing
underwriter or underwriters, as well as any other underwriters, and the terms of the transaction, including commissions, discounts and any other compensation of the underwriters and dealers, if any, will be set forth in the prospectus supplement
which will be used by the underwriters to sell the securities. If underwriters are utilized in the sale of the securities, the securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more
transactions, including negotiated transactions, at fixed public offering prices or at varying prices determined by the underwriters at the time of sale. Maximum compensation to any underwriters, dealers or agents will not exceed any applicable
Financial Industry Regulatory Authority, or FINRA, limitations. In particular, in compliance with the guidelines of FINRA, the aggregate maximum fees or other items of value to be received by any FINRA member or independent broker-dealer will not
exceed 8% of the gross proceeds of any offering pursuant to this registration statement.
Our securities may be offered to the public either through underwriting syndicates represented by managing underwriters or directly by the managing underwriters. If any underwriter
or underwriters are utilized in the sale of the securities, unless otherwise indicated in the prospectus supplement, the underwriting agreement will provide that the obligations of the underwriters are subject to conditions precedent and that the
underwriters with respect to a sale of securities will be obligated to purchase all of those securities if they purchase any of those securities.
We may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the public offering price with additional underwriting discounts or
commissions. If we grant any over-allotment option, the terms of any over-allotment option will be set forth in the prospectus supplement relating to those securities.
If a dealer is utilized in the sales of securities in respect of which this prospectus is delivered, we will sell those securities to the dealer as principal. The dealer may then
resell those securities to the public at varying prices to be determined by the dealer at the time of resale. Any reselling dealer may be deemed to be an underwriter, as the term is defined in the Securities Act of 1933, as amended (the “Securities
Act”) of the securities so offered and sold. The name of the dealer and the terms of the transaction will be set forth in the related prospectus supplement.
Offers to purchase securities may be solicited by agents designated by us from time to time. Any agent involved in the offer or sale of the securities in respect of which this
prospectus is delivered will be named, and any commissions payable by us to the agent will be set forth, in the applicable prospectus supplement. Unless otherwise indicated in the prospectus supplement, any agent will be acting on a reasonable best
efforts basis for the period of its appointment. Any agent may be deemed to be an underwriter, as that term is defined in the Securities Act of the securities so offered and sold.
Offers to purchase securities may be solicited directly by us and the sale of those securities may be made by us directly to institutional investors or others, who may be deemed to
be underwriters within the meaning of the Securities Act with respect to any resale of those securities. The terms of any sales of this type will be described in the related prospectus supplement.
We also may sell directly to investors through subscription rights distributed to our shareholders on a pro rata basis. In connection with any distribution of subscription rights
to shareholders, if all of the underlying securities are not subscribed for, we may sell the unsubscribed securities directly to third parties or may engage the services of one or more underwriters, dealers or agents, including standby underwriters,
to sell the unsubscribed securities to third parties.
Underwriters, dealers, agents and remarketing firms may be entitled under relevant agreements entered into with us to indemnification by us against certain civil liabilities,
including liabilities under the Securities Act, that may arise from any untrue statement or alleged untrue statement of a material fact or any omission or alleged omission to state a material fact in this prospectus, any supplement or amendment
hereto, or in the registration statement of which this prospectus forms a part, or to contribution with respect to payments which the agents, underwriters or dealers may be required to make. We may use underwriters, dealers, agents and remarketing
firms with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, dealers, agents and/or remarketing firm and the nature of any such relationship.
If so indicated in the prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit offers by institutions to purchase securities from us
pursuant to contracts providing for payments and delivery on a future date. Institutions with which contracts of this type may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases those institutions must be approved by us. The obligations of any purchaser under any contract of this type will be subject to the condition that the purchase of the securities shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the purchaser is subject. The underwriters and other persons acting as our agents will not have any responsibility in respect of the validity or performance of those
contracts.
11
One or more firms, referred to as “remarketing firms,” may also offer or sell the securities, if the prospectus supplement so indicates, in connection with a remarketing
arrangement upon their purchase. Remarketing firms will act as principals for their own accounts or as agents for the Company or any of its subsidiaries. These remarketing firms will offer or sell the securities in accordance with a redemption or
repayment pursuant to the terms of the securities.
The prospectus supplement will identify any remarketing firm and the terms of its agreement, if any, with the Company or any of its subsidiaries and will describe the remarketing
firm's compensation. Remarketing firms may be deemed to be underwriters in connection with the securities they remarket. Remarketing firms may be entitled under agreements that may be entered into with the Company or any of its subsidiaries to
indemnification by the Company or any of its subsidiaries against certain civil liabilities, including liabilities under the Securities Act, and may engage in transactions with or perform services for the Company or any of its subsidiaries in the
ordinary course of business.
Disclosure in the prospectus supplement of our use of delayed delivery contracts will include the commission that underwriters and agents soliciting purchases of the securities
under delayed contracts will be entitled to receive in addition to the date when we will demand payment and delivery of the securities under the delayed delivery contracts. These delayed delivery contracts will be subject only to the conditions that
we describe in the prospectus supplement.
In connection with the offering of securities, persons participating in the offering, such as any underwriters, may purchase and sell securities in the open market. These
transactions may include over-allotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering. Stabilizing transactions consist of bids or purchases for the purpose of preventing or
retarding a decline in the market price of the securities, and syndicate short positions involve the sale by underwriters of a greater number of securities than they are required to purchase from any issuer in the offering. Underwriters also may
impose a penalty bid, whereby selling concessions allowed to syndicate members or other broker-dealers in respect of the securities sold in the offering for their account may be reclaimed by the syndicate if the securities are repurchased by the
syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise affect the market price of the securities, which may be higher than the price that might prevail in the open market, and these activities, if
commenced, may be discontinued at any time.
An underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Securities Exchange Act
of 1934 (the “Exchange Act”). Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a
specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriter to reclaim a selling concession from a dealer when
the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. These activities may cause the price of our securities to be higher than it would otherwise be on the open market. The underwriter may
discontinue any of these activities at any time.
All securities we offer will be new issues of securities, with no established trading market (other than A Ordinary Shares, which are traded via our ADSs). Underwriters may make a market in these
securities, but will not be obligated to do so and may discontinue market making at any time without notice. We cannot guarantee the liquidity of the trading markets for any securities.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale shares may not simultaneously engage in market making activities with respect to
the A Ordinary Shares for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution.
12
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.
OFFERING EXPENSES
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.
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Securities and Exchange Commission registration fee
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$
|
7,380
|
||
|
FINRA filing fee
|
$
|
*
|
||
|
Legal fees and expenses
|
$
|
*
|
||
|
Accountants’ fees and expenses
|
$
|
*
|
||
|
Printing fees
|
$
|
*
|
||
|
Miscellaneous
|
-
|
|||
|
Total
|
$
|
*
|
|
*
|
These fees and expenses will be based upon the number of securities offerings and the amount of securities offered and accordingly cannot be estimated at this time.
|
13
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.
LEGAL MATTERS
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 and any accompanying prospectus
supplement. The validity of the securities offered hereunder will be passed upon for us by Matheson LLP, Dublin, Ireland.
EXPERTS
The consolidated financial statements of Trinity Biotech plc and the Statement of Assets Acquired and Liabilities Assumed of Waveform Technologies, Inc. incorporated by reference in this prospectus and
elsewhere in the registration statement have been so incorporated by reference in reliance upon the reports of Grant Thornton, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.
14
We have filed with the Commission a registration statement on Form F-3 under the Securities Act with respect to the securities offered by this prospectus. This prospectus, which is
part of the registration statement, omits certain information, exhibits, schedules and undertakings set forth in the registration statement. For further information pertaining to us and the securities offered hereby, reference is made to the
registration statement and the exhibits and schedules to the registration statement. Statements contained in this prospectus as to the contents or provisions of any documents referred to in this prospectus are not necessarily complete, and in each
instance where a copy of the document has been filed as an exhibit to the registration statement, reference is made to the exhibit for a more complete description of the matters involved.
You may read and copy all or any portion of the registration statement without charge at the public reference room of the Securities and Exchange Commission at 100 F Street, N.E.,
Washington, D.C. 20549. Copies of the registration statement may be obtained from the Commission at prescribed rates from the public reference room of the Commission at such address. You may obtain information regarding the operation of the public
reference room by calling 1-800-SEC-0330. In addition, registration statements and certain other filings made with the Commission electronically are publicly available through the Commission’s website at www.sec.gov. The registration statement,
including all exhibits and amendments to the registration statement, has been filed electronically with the Commission. You may also read all or any portion of the registration statement and certain other filings made with the Commission on our
website at www.trinitybiotech.com. The information contained in, and that can be accessed through, our website is not incorporated into and is not part of this prospectus.
We are subject to the reporting requirements of the Exchange Act that are applicable to a foreign private issuer. In accordance with the Exchange Act, we file reports, including
Annual Reports on Form 20-F by April 30 of each year. We also furnish to the Commission under cover of Form 6-K material information required to be made public in Ireland, filed with and made public by any stock exchange or distributed by us to our
shareholders.
As a foreign private issuer, we are exempt from the rules under the Exchange Act prescribing the furnishing and content of proxy statements to shareholders and our officers,
directors and principal shareholders are exempt from the “short-swing profits” reporting and liability provisions contained in Section 16 of the Exchange Act and related Exchange Act rules.
15
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, filed with the Commission on April 30, 2024 (the
“Annual Report”);
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| • |
our reports of foreign private issuer on Form 6-K (including exhibits thereto) furnished to the Commission on April 30, 2024,
and May 28, 2024;
|
| • |
a description of the ADSs and the A Ordinary Shares is contained in the Annual Report;
|
| • |
any future reports on Form 6-K to the extent that we indicate they are incorporated by reference into this registration statement.
|
We are also incorporating by reference (i) all subsequent annual reports on Form 20-F that we file with the Commission and certain reports on Form 6-K that we furnish to the
Commission after the date of the initial filing of and prior to the effectiveness of the registration statement of which this prospectus forms a part, and (ii) all such annual reports and certain reports on Form 6-K that we file after the
effectiveness of the registration statement of which this prospectus forms a part, until we file a post-effective amendment indicating that the offering of the securities made by this prospectus has been terminated (in each case, if such Form 6-K
states that it is incorporated by reference into this prospectus).
Certain statements in and portions of this prospectus update and replace information in the above listed documents incorporated by reference. Likewise, statements in or portions
of a future document incorporated by reference in this prospectus may update and replace statements in and portions of this prospectus or the above listed documents.
We will provide you without charge, upon your written or oral request, a copy of any of the documents incorporated by reference in this prospectus, other than exhibits to such
documents which are not specifically incorporated by reference into such documents. Please direct your written or telephone requests to Trinity Biotech plc, IDA Business Park, Bray, 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 or any supplement. 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 or any supplement is distributed. You should not assume that the information in this prospectus or any supplement 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 Securities Exchange Act of 1934, or 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.
16
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 a significant portion of our assets and substantially all of our directors and officers are located outside the United States, any judgment obtained in the United States against us or any of our
directors and officers may not be collectible within the United States.
We have been advised by counsel that the United States currently does not have a treaty with Ireland providing for the reciprocal recognition and enforcement of judgments in
civil and commercial matters. Therefore, a final judgment for the payment of money rendered by any U.S. federal or state court based on civil liability, whether or not based solely on U.S. federal or state securities laws, would not automatically
be recognized or enforceable in Ireland.
A judgment of the U.S. courts will be enforced by the Irish courts, by way of separate action in Ireland, if the following general requirements are met: (i) the debt is for a
liquidated or defined sum; (ii) the procedural rules of the U.S. court must have been observed and the U.S. court must have had jurisdiction in relation to the particular defendant according to Irish conflict of law rules (the submission to
jurisdiction by the defendant would satisfy this rule); and (iii) the judgment must be final and conclusive and the decree must be final and unalterable in the court which pronounces it. A judgment can be final and conclusive even if it is subject
to appeal or even if an appeal is pending. If the effect of lodging an appeal under the applicable law is to stay execution of the judgment, it is possible that, in the meantime, the judgment should not be actionable in Ireland. It remains to be
determined whether final judgment given in default of appearance is final and conclusive. However, the Irish courts may refuse to enforce a judgment of the U.S. courts which meets the above requirements for one of the following reasons: (a) if the
judgment is not for a debt or a definite sum of money; (b) if the judgment was obtained or alleged to have been obtained by fraud; (c) if the process and decision of the U.S. Courts were contrary to natural or constitutional justice under the laws
of Ireland and if the enforcement of the judgment in Ireland would be contrary to natural or constitutional justice; (d) if the judgment is contrary to Irish public policy or involves certain United States laws which will not be enforced in Ireland
or constitute the enforcement of a judgment of a penal or taxation nature; (e) if jurisdiction cannot be obtained by the Irish courts over the judgment debtors in the enforcement proceedings by personal service in Ireland or outside Ireland under
Order 11 of the Irish Superior Courts Rules; (f) there is no practical benefit to the party in whose favor the foreign judgment is made in seeking to have that judgment enforced in Ireland, or (g) if the judgment is not consistent with a judgment
of an Irish court in respect of the same matter.
We have irrevocably appointed Puglisi & Associates as our agent to receive service of process in any action against us in the state and federal courts sitting in the City of
New York, Borough of Manhattan arising out of this offering or any purchase or sale of securities in connection therewith. We have not given consent for this agent to accept service of process in connection with any other claim.
17
TRINITY BIOTECH PLC
$50,000,000
$50,000,000
A Ordinary Shares
Warrants
Debt Securities
Subscription Rights
Units
____________________________
PROSPECTUS
____________________________
PROSPECTUS
____________________________
You should rely only on the information incorporated by reference or provided in this prospectus and in any accompanying prospectus supplement. We have not
authorized anyone to provide you with different information. We are not making any offer to sell or buy any of the securities in any state where the offer is not permitted. You should not assume that the information in this prospectus is accurate
as of any date other than the date that appears below.
, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers.
The registrant’s constitution provides that every director and other officer of the registrant (other than an auditor) shall be indemnified out of the assets of the registrant
against any liability incurred by him in defending any proceedings, whether civil or criminal, in relation to his acts while acting in such office in which judgment is given in his favor or in which he is acquitted or in connection with any
application in which relief is granted to him by the court under the Irish Companies Act 2014. We have entered into indemnification agreements with directors and senior management. Each such indemnification agreement provides the director or office
holder with indemnification permitted under applicable law and to the extent that these liabilities are not covered by directors’ and officers’ insurance.
Item 9. Exhibits.
The index to exhibits appears below on the page immediately following the signature pages of this Registration Statement.
Item 10. Undertakings.
(a) The undersigned registrant hereby undertakes:
| (1) |
to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
|
| (i) |
to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the “Securities Act”);
|
| (ii) |
to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth in the ‘‘Calculation of Registration Fee’’ table in the effective registration statement; and
|
| (iii) |
to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in this Registration Statement;
|
provided, however, that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) that are incorporated by reference in this
Registration Statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the Registration Statement.
| (2) |
that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
|
| (3) |
to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
|
| (4) |
to file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Securities Act of 1933 need not be furnished, provided, that the registrant includes in the prospectus, by means of a post-effective amendment,
financial statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the
foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933 or Rule 3-19 of Regulation S-X if such financial statements and information are
contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Form F-3.
|
| (5) |
that, for the purpose of determining any liability under the Securities Act to any purchaser:
|
| (i) |
each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be a part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
|
| (ii) |
each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the
date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a
new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
|
| (6) |
that, for the purpose of determining liability of a registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
|
| (i) |
any preliminary prospectus or prospectus of the undersigned registrant to the offering required to be filed pursuant to Rule 424;
|
| (ii) |
any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by an undersigned registrant;
|
| (iii) |
the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
|
| (iv) |
any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
|
II - 2
| (b) |
The registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
| (c) |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions referred to in Item 8, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
|
| (d) |
The registrant hereby undertakes that, for purposes of determining any liability under the Securities Act,
|
| (1) |
the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective.
|
| (2) |
each post-effective amendment that contains a form of prospectus 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.
|
| (e) |
The registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and
regulations prescribed by the Commission under section 305(b)2 of the Act.
|
II - 3
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 Wicklow, Ireland, on June 21, 2024.
|
TRINITY BIOTECH PLC
|
|
|
By:
|
/s/ John Gillard |
|
John Gillard
|
|
|
Chief Executive Officer
|
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints 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 June 21, 2024 by or on behalf of the following persons in the capacities
and on the dates indicated.
|
Signature
|
Title
|
|
|
/s/ John Gillard
|
Chief Executive Officer (Principal Executive Officer), Company Secretary and Director
|
|
|
John Gillard
|
||
|
/s/ Desmond Fitzgerald
|
Interim Chief Financial Officer
|
|
|
Desmond Fitzgerald
|
||
|
/s/ Simon Dunne
|
Chief Accounting Officer
|
|
|
Simon Dunne
|
||
|
/s/ Ronan O’Caoimh
|
Director
|
|
|
Ronan O’Caoimh
|
||
|
|
Director
|
|
|
James Walsh
|
||
|
|
Director
|
|
|
Thomas Lindsay
|
||
|
/s/ Andrew Omidvar
|
Director
|
|
|
Andrew Omidvar
|
II - 4
SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of the Registrant, has signed
this registration statement on June 21, 2024.
|
Puglisi & Associates
|
|
|
|
|
|
|
|
By:
|
/s/ Donald J. Puglisi
|
|
|
|
Name: Donald J. Puglisi
|
|
|
|
Title: Managing Director
|
|
II - 5
|
Exhibit No.
|
Description of Exhibit
|
|
4.4*
|
Form of Indenture
|
|
4.5*
|
Form of Warrant Agreement and Warrant Certificate
|
|
4.6*
|
Form of Unit Agreement
|
|
25.1*
|
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee under the Indenture
|
________________
* Incorporated by reference, if necessary, to a corresponding exhibit to a Report on Form 6-K in connection with an offering of securities.
II - 6
Exhibit 5.1
|
Trinity Biotech plc
IDA Business Park
Bray
Co. Wicklow
Ireland
Private and Confidential
|
|
Our Ref
|
21 June 2024
|
|
|
DJ/TB/LC 4031/2
|
Dear Trinity Biotech plc
Registration Statement on Form F-3
We have acted as Irish counsel to Trinity Biotech plc, a public limited company incorporated under the laws of Ireland (company number 183476) (the “Company”)
on the date hereof, of a registration statement on Form F-3 (the “Registration Statement”) under the U.S. Securities Act of 1933, as amended (the “Securities Act”) with
the U.S. Securities and Exchange Commission (the “Commission”). Pursuant to the Registration Statement, the Company will register, under the Securities Act, up to $50,000,000 aggregate amount of the
following securities of the Company: (i) A’ Ordinary shares, par value $0.0109 per share (the “Ordinary Shares”), (ii) debt securities (the “Debt Securities”),
(iii) warrants to purchase Ordinary Shares and/or Debt Securities (the “Warrants”), (iv) subscription rights distributed to holders of the Company's securities to acquire Ordinary Shares (the “Subscription Rights”), and (v) units comprised of one or more of the Ordinary Shares, Debt Securities, Warrants and Subscription Rights in any combination (the “Units"
together with the Ordinary Shares, Debt Securities, Warrants and Subscription Rights, the “Securities”).
In connection with this Opinion, we have reviewed and relied upon the corporate resolutions, records and other documents and searches listed in Schedule 1 to this Opinion (the “Documents”) and such corporate resolutions, records and other documents as referred to in any of the Documents.
Based on the foregoing, and subject to the assumptions, qualification and limitations set out in Schedule 2, Schedule 3 and elsewhere in this Opinion, we are of the opinion that:
| 1. |
the Company is a public limited company, duly incorporated and validly existing under the laws of Ireland;
|
| 2. |
the Ordinary Shares, when issued in accordance with all necessary corporate action of the Company (including a valid resolution of the board of directors of the Company or a duly appointed committee thereof) and the provisions of the
Company’s constitution, and subject to receipt by the Company of the full consideration payable therefor, will be validly issued, fully-paid and non-assessable (“non-assessable” is a phrase which has no
defined meaning under Irish law, but, for the purposes of this Opinion, shall mean that the registered holders of shares are not subject to calls for additional payments on such shares);
|
| 3. |
the Debt Securities, when issued in accordance with all necessary corporate action of the Company (including a valid resolution of the board of directors of the Company or a duly appointed committee thereof), the provisions of the
Company’s constitution, and subject to compliance with the terms of any duly authorised, executed and lawful agreement or instrument constituting such Debt Securities, will constitute valid and binding obligations of the Company;
|
| 4. |
the Warrants, when issued in accordance with all necessary corporate action of the Company (including a valid resolution of the board of directors of the Company or a duly appointed committee thereof), the provisions of the Company’s
constitution, and subject to compliance with the terms of any duly authorised, executed and lawful agreement or instrument constituting such Warrants, will constitute valid and binding obligations of the Company;
|
| 5. |
the Subscription Rights, when issued in accordance with all necessary corporate action of the Company (including a valid resolution of the board of directors of the Company or a duly appointed committee thereof), the provisions of the
Company’s constitution, and subject to compliance with the terms of any duly authorised, executed and lawful agreement or instrument constituting such Subscription Rights, will constitute valid and binding obligations of the Company; and
|
| 6. |
the Units, when issued in accordance with all necessary corporate action of the Company (including a valid resolution of the board of directors of the Company or a duly appointed committee thereof), the provisions of the Company’s
constitution, and subject to compliance with the terms of any duly authorised, executed and lawful agreement or instrument constituting such Units, will constitute valid and binding obligations of the Company.
|
This Opinion 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 is expressed as of the date hereof and we assume no obligation to update this Opinion.
This Opinion is furnished to you and the persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act strictly for use in connection with the Registration Statement
and may not be relied upon by any other person without our prior written consent. This Opinion is confined strictly to the matters expressly stated herein and is not to be read as extending, by implication or otherwise, to any other matter.
We hereby consent to the filing of this Opinion as Exhibit 5.1 to the Registration Statement and to the reference to Matheson LLP in the prospectus constituting a part of the Registration Statement.
In giving such consent, we do not admit that we are included in the category of persons whose consent is required under section 7 of the Securities Act, or the rules and regulations of the Commission promulgated thereunder.
This Opinion and the opinions given in it are governed by, and construed in accordance with, the laws of Ireland.
Yours faithfully
/s/ Matheson LLP
MATHESON LLP
2
Schedule 1
Documents
| 1. |
A certificate executed by Mr. John Gillard, the secretary of the Company, dated the same date as this Opinion Letter as to certain matters to be relied on by us (the "Corporate Certificate").
|
| 2. |
A copy of the constitution of the Company, which is currently in force as appended at appendix A to the Corporate Certificate.
|
| 3. |
The Registration Statement, as filed with the U.S. Securities and Exchange Commission on the date hereof.
|
| 4. |
Searches carried out by independent law researchers on our behalf against Trinity Biotech plc on 21 June 2024 in (i) the Index of Petitions and Winding-up Notices maintained at the Central Office of the High Court of Ireland, (ii) the
Judgments’ Office of the Central Office of the High Court of Ireland and (iii) the Companies Registration Office.
|
| 5. |
A copy of written resolutions of the board of directors of the Company dated 20 June 2024.
|
3
Schedule 2
Assumptions
For the purposes of this Opinion, we have assumed:
| 1. |
The truth and accuracy of the contents of the Documents as to factual matters, but have made no independent investigation regarding such factual matters.
|
| 2. |
All signatures (including, for the avoidance of doubt, electronic signatures), initials, seals and stamps contained in, or on, the Documents submitted to us are genuine.
|
| 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, and each other party to any
Document which has been executed using an electronic signature has consented to the execution by the Company of that Document by way of electronic signature.
|
| 4. |
All Documents submitted to us as originals are authentic and complete and all Documents submitted to us as copies (including without limitation any document submitted to us as a .pdf, or any other format, attachment to an email) are
complete and conform to the originals of such Documents, and the originals of such Documents are authentic and complete.
|
| 5. |
Any 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.
|
| 6. |
The copy produced to us of the written resolutions of the board of directors of the Company dated 20 June 2024 is a true copy of the written resolutions duly passed and approved, by the directors acting bona fide in the interests of the
Company and in accordance with the provisions contained in the Companies Act 2014 (the “Companies Act”) and / or the Company's constitution.
|
| 7. |
The filing of the Registration Statement with the Commission has been authorised by all necessary actions under all applicable laws other than Irish law.
|
| 8. |
There are no contractual or similar restrictions or other arrangements binding on the Company which could affect the conclusions in this Opinion.
|
| 9. |
Any power of attorney granted by the Company in respect of the allotment and issue of the Ordinary Shares or the issuance of the Securities shall have been duly granted, approved and executed in accordance with the Company's Constitution,
the Companies Act, the Powers of Attorney Act,1996 and all other applicable laws, rules and regulations.
|
| 10. |
The Corporate Certificate is accurate in all respects (other than in relation to any matter of Irish law on which we expressly opine).
|
| 11. |
Each party to the Documents (other than the Company) had (when it entered into), and continues to have, the due and requisite capacity, power and authority to enter into, execute and perform its obligations under the Documents, and the
Documents are, and will not become, subject to avoidance by any person under all applicable laws in any applicable jurisdictions (other than, in the case of the Company, the laws of Ireland and the jurisdiction of Ireland).
|
4
| 12. |
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.
|
| 13. |
The resolutions of the shareholders of the Company and 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 a properly constituted, convened
and quorate meeting 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.
|
| 14. |
When filed with the Commission, 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.
|
| 15. |
A complete prospectus supplement will have been prepared and filed with the Commission describing the Ordinary Shares and Securities offered thereby.
|
| 16. |
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.
|
| 17. |
A definitive purchase, underwriting or similar agreement with respect to the Ordinary Shares or Securities offered will have been duly authorised and validly executed and delivered by the Company and the other parties thereto.
|
| 18. |
The Company will derive a commercial benefit from entering into any document referred to in, or contemplated by, the Registration Statement (including the prospectus contained therein and any prospectus supplement) in connection with the
issue of any Security (a "Relevant Document") and will derive a commercial benefit from issuing Securities.
|
| 19. |
In approving the entry into any Relevant Document, the directors of the Company have acted in a manner they consider, in good faith, to be in the interests of the Company for its legitimate business purposes and which would be likely to
promote the success of the Company for its members as a whole.
|
| 20. |
At the time of the allotment of any Ordinary Shares (including upon the grant or issuance of any rights, or securities conferring rights, to be allotted or which are convertible into Ordinary Shares (“Convertible Rights”), the Company will have a sufficient number of authorised but unissued Ordinary 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 Ordinary Shares.
|
| 21. |
At the time of the allotment of any Ordinary 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 Ordinary 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 Ordinary Shares or to grant or issue such Convertible Rights as if section 1022(1) of the Companies Act did not apply to such allotment.
|
5
| 22. |
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.
|
| 23. |
No Ordinary Share will be allotted and issued for less than its nominal value, and no Ordinary 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.
|
| 24. |
No Ordinary Share will be allotted and issued: (a) for consideration of an undertaking from any person that he, she or another will do work or perform services for the Company or for any other person, (b) for consideration otherwise than
in cash that includes an undertaking which is to be or may be performed more than five years after the date of allotment or (c) for other consideration which, from time to time, is not considered good or adequate consideration.
|
| 25. |
An Ordinary 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 Ordinary Share has been issued fully paid-up.
|
| 26. |
The Company shall not, by virtue of or in connection with any Securities 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.
|
| 27. |
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.
|
| 28. |
From the date of this Opinion, no corporate, shareholder or other action will be taken to amend, alter or repeal the Company's Constitution.
|
| 29. |
From the date of this Opinion, no corporate, shareholder or other action will be taken to redesignate or reclassify the Ordinary Shares or create any other classes of share in the capital of the Company.
|
| 30. |
The Company will continue to renew its authority to issue the Ordinary 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 Ordinary Shares after such authority has expired.
|
| 31. |
The issue of the Ordinary Shares upon the conversion, exchange and exercise of any of the Securities issued under the Registration Statement will be conducted in accordance with the terms and the procedures described in the Constitution,
the Companies Act and the terms of issue of such securities.
|
6
| 32. |
In approving the allotment, issue, and / or sale of any Securities, there shall be no intent by the directors and / or any duly authorised officer of the Company acting under delegated authority to give a creditor a preference which could
be deemed to be an unfair preference in accordance with section 604 of the Companies Act.
|
| 33. |
The obligations expressed to be assumed by each party to any Relevant Document are legal, valid, binding and enforceable obligations under all applicable laws and in all applicable jurisdictions, other than, in the case of the Company, the
laws of Ireland and the jurisdiction of Ireland and any obligations expressed to be assumed by each party to any Relevant Document(s) will be legal, valid, binding and enforceable obligations under all applicable laws and in all applicable
jurisdictions, including the laws of Ireland and the jurisdiction of Ireland.
|
| 34. |
If any obligation of any of the parties under any Relevant Document or any supplemental Relevant Document(s) is to be performed in any jurisdiction other than Ireland, its performance will not be illegal or ineffective by virtue of the
laws of that jurisdiction and there are no provisions of the laws or public policy of any jurisdiction outside Ireland which would be contravened by the execution or performance of any Relevant Document or any supplemental Relevant
Document(s) or which would render their performance ineffective by virtue of the laws of that jurisdiction.
|
| 35. |
Any Relevant Document(s) and the transactions contemplated thereby and the payments to be made thereunder are not and will not be affected by any financial restrictions or sanctions arising from orders made by the Irish Minister for
Finance under the Financial Transfers Act 1992 of Ireland and / or section 42 of the Criminal Justice (Terrorist Offences) Act 2005 of Ireland or the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 of Ireland.
|
| 36. |
All authorisations, approvals, licences, exemptions or consents of governmental or regulatory authorities with respect to the agreements or arrangements referred to in the Registration Statement (including the prospectus contained therein
and any prospectus supplement) or with respect to the issue, offer or sale of any Securities (other than, in the case of the Company, the governmental or regulatory authorities of Ireland) have been, or will be, obtained and are, or will be,
in full force and effect, all Securities will conform with the descriptions contained in the Registration Statement (including the prospectus contained therein and any prospectus supplement) and, subject to such changes as may be required in
order to comply with any requirement of Irish law, the selling restrictions contained in the Registration Statement (including the prospectus and any supplemental prospectus) have been and will, at all times, be observed and the Company will
otherwise comply with the terms of any other lawful agreements relating to the issue, sale and / or offer of any Securities.
|
| 37. |
The creation, issuance, offer or sale, including the marketing, of any Securities will be made, effected and conducted in accordance with and will not otherwise violate any applicable laws and regulations of any jurisdiction, including
Ireland, or supra-national authority, including, without limitation: (a) the securities laws and regulations of any jurisdiction or supra-national authority which impose any restrictions, or mandatory requirements, in relation to the offering
or sale of the Securities to the public in any jurisdiction, including the obligation to prepare a prospectus or registration document relating to any Securities and (b) any requirement or restriction imposed by any court, governmental body
or supra-national authority having jurisdiction over the Company or the members of its group.
|
| 38. |
That: (a) the Company will be fully solvent at the time of and immediately following the issue of any Securities, (b) no resolution or petition for the appointment of a liquidator or examiner will be passed or presented prior to the issue
of any Securities, (c) no receiver will have been appointed in relation to any of the assets or undertaking of the Company prior to the issue of any Securities and (d) no composition in satisfaction of debts, scheme of arrangement, or
compromise or arrangement with creditors or members (or any class of creditors or members) will be proposed, sanctioned or approved in relation to the Company prior to the issue of any Securities.
|
| 39. |
The information disclosed by the Searches was accurate and complete as of the date the Searches were made and has not been altered, and the Searches did not fail to disclose any information which had been delivered for registration but
which did not appear from the information available at the time the Searches were made or which ought to have been delivered for registration at that time but had not been so delivered. No additional matters would have been disclosed by
searches being carried out since that time.
|
| 40. |
No proceedings have been or will be instituted or injunction granted against the Company to restrain it from issuing any Securities 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.
|
| 41. |
The absence of fraud and the presence of good faith on the part of all parties to the Documents and any other relevant documents and their respective officers, employees, agents and advisors.
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| 42. |
No Securities will be listed or traded on a stock exchange or other market in the European Economic Area.
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| 43. |
Any issue of the Ordinary Shares will be in compliance with the Companies Act, the Takeover Panel Act, 1997, Takeover Rules, 2022, and all other applicable Irish company, takeover, securities, market abuse, insider dealing laws and other
rules and regulations.
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| 44. |
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 Ordinary Shares or Securities 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 Ordinary Shares and Securities 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.
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7
Schedule 3
Qualifications
The opinions in this Opinion are subject to the following qualifications:
| 1. |
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.
|
| 2. |
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.
|
| 3. |
The position reflected in the Searches may not be fully up to date.
|
| 4. |
The expressions “validly” and “valid and binding” when used in this Opinion mean that the obligations expressed to be assumed are of a type which the courts of Ireland will treat as valid and binding. It does not mean that these
obligations will necessarily be enforced in all circumstances in accordance with their terms. In particular, enforcement of obligations may be:
|
| (a) |
limited by general principles of equity, in particular, equitable remedies (such as an order for specific performance or an injunction) which are discretionary and are not available where damages are considered to be an adequate remedy;
|
| (b) |
subject to any limitations arising from examinership, administration, bankruptcy, insolvency, moratoria, receivership, liquidation, reorganisation, court scheme of arrangement, arrangement and similar laws affecting the rights of
creditors;
|
| (c) |
limited by the provisions of the laws of Ireland applicable to contracts held to have been frustrated by events happening after their execution;
|
| (d) |
invalidated if and to the extent that performance or observance arising in a jurisdiction outside Ireland would be unlawful, unenforceable, or contrary to public policy or to the exchange control regulations under the laws of such
jurisdiction;
|
| (e) |
invalidated by reason of fraud; and
|
| (f) |
barred under the Statutes of Limitations of 1957 of Ireland (as amended).
|
| 5. |
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.
|
8
| 6. |
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.
|
| 7. |
A contractual provision conferring or imposing a remedy or an obligation consequent upon default may not be enforceable if it were construed by an Irish court as being a penalty, particularly if it involved enforcing an additional
pecuniary remedy (such as a default or overdue interest) referable to such default and which does not constitute a genuine and reasonable pre-estimate of the damage likely to be suffered as a result of the default in payment of the amount in
question or the termination in question; further, recovery may be limited by laws requiring mitigation of loss suffered.
|
| 8. |
An Irish court may not give effect to an indemnity given by any party to the extent it is in respect of legal costs incurred by an unsuccessful litigator or to the extent that it is in respect of litigation costs which are not awarded by
the court.
|
| 9. |
In the event of any proceedings being brought in an Irish court in respect of a monetary obligation expressed to be payable in a currency other than euro, an Irish court would have the power to give a judgment to pay a currency other than
euro but may decline to do so in its discretion and an Irish court might not enforce the benefit of currency conversion or indemnity clauses and, with respect to a bankruptcy, liquidation, insolvency, reorganisation or similar proceeding, the
laws of Ireland may require that all claims or debts be converted into euro at an exchange rate determined by the court as at a date related thereto, such as the date of commencement of a winding-up.
|
| 10. |
This Opinion does not deal with the tax (including stamp duty) treatment of the issuance, transfer and/or assignment of any Securities or any payments in respect of any Securities or any other tax matter.
|
| 11. |
Where a party is vested with a discretion or may determine a matter in his or its opinion, the laws of Ireland may require that such discretion is exercised reasonably or that such opinion is based upon reasonable grounds.
|
| 12. |
An Irish court may not give effect to any provision of a contract which (a) provides for a matter to be determined by future agreement or negotiation or (b) it considers to be devoid of any meaning, vague or uncertain.
|
| 13. |
A right of set-off provided for in a contract or another document may not be enforceable in all circumstances.
|
9
Exhibit 5.2
[CLM Letterhead]
June 21, 2024
Trinity Biotech plc
IDA Business Park,
Bray, Co.
Wicklow, Ireland
Re: Registration Statement on Form F-3 of Trinity Biotech plc
Ladies and Gentlemen:
We have acted as United States counsel to Trinity Biotech plc, a public limited company incorporated under the
laws of Ireland, (the “Company”) in connection with the Registration Statement on Form F-3 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) under
the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to the registration of up to $50,000,000 aggregate
amount of the following securities of the Company: (i) A Ordinary shares, par value $0.0109 per share (the “Ordinary Shares”); (ii) debt securities (the “Debt Securities”); (iii) warrants to purchase Ordinary Shares and/or Debt Securities (the “Warrants”); (iv) subscription rights distributed to holders of the Company's securities to acquire Ordinary Shares ( the “Subscription Rights”);
and (v) units comprised of one or more of the Ordinary Shares, Debt Securities, Warrants and Subscription Rights in any combination (the “Units,” and
together with the Ordinary Shares, Debt Securities, Subscription Rights and Warrants, the “Securities”). The Registration Statement includes a form of
prospectus (the “Prospectus”). The Prospectus provides that it will be supplemented in the future by one or more supplements to the Prospectus (each, a “Prospectus Supplement”).
The Debt Securities will be issued under an indenture, substantially in the form of the exhibit to the Registration Statement (the “Indenture”) between the Company and a
trustee to be named in the applicable Prospectus Supplement (each, a “Trustee”). The Subscription Rights will be issued pursuant to a subscription rights agreement (the “Subscription Rights Agreement”) between the Company and a
subscription agent (the “Subscription Agent”). The Warrants will be issued under a warrant agreement (the “Warrant Agreement”) between the Company and a warrant agent (the “Warrant Agent”).
In connection herewith, we have examined and relied without investigation as to matters of fact upon the Registration Statement and the exhibits thereto, and such certificates,
statements and results of inquiries of public officials and officers and representatives of the Company and originals or copies, certified or otherwise identified to our satisfaction, of such other documents, corporate records, certificates and
instruments as we have deemed necessary or appropriate to enable us to render the opinions expressed herein. Various issues pertaining to Irish law are addressed in the opinion of Matheson LLP, filed as an exhibit to the Registration Statement. We
express no opinion with respect to those matters herein, and to the extent elements of those opinions are necessary to the conclusions expressed herein, we have, with your consent, assumed such elements. We have assumed the genuineness of all
signatures on all documents examined by us, the legal competence and capacity of natural persons, the authenticity of documents submitted to us as originals, and the conformity with authentic original documents of all documents submitted to us as
copies.
We also have assumed that: (1) at the time of execution, authentication, issuance and delivery of the Debt Securities, the related Indenture will be the valid and legally binding
obligation of the applicable Trustee, enforceable against such party in accordance with its terms; (2) at the time of execution, issuance and delivery of the Subscription Rights, the Subscription Rights Agreement will be the valid and legally
binding obligation of the Subscription Rights Agent, enforceable against such party in accordance with its terms; and (3) at the time of execution, issuance and delivery of any Warrants, the related Warrant Agreement will be the valid and legally
binding obligation of the Warrant Agent, enforceable against such party in accordance with its terms.
We have assumed further that: (1) at the time of execution, issuance and delivery of the Debt Securities, the related Indenture will have been duly authorized, executed and
delivered by the Company and the applicable Trustee; (2) at the time of execution, issuance and delivery of the Subscription Rights, the Subscription Rights Agreement will have been duly authorized, executed and delivered by the Company and the
Subscription Agent; (3) at the time of execution, issuance and delivery of any Warrants, the related Warrant Agreement will have been duly authorized, executed and delivered by the Company and the Warrant Agent; and (4) at the time of the issuance
and sale of any of the Securities, the terms of the Securities, and their issuance and sale, will have been established so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company.
Based upon the foregoing, in reliance thereon and subject to the assumptions, comments, qualifications, limitations and exceptions stated herein and the effectiveness of the
Registration Statement under the Securities Act, we are of the opinion that:
1. With respect to the Debt Securities, assuming the (a) taking of all necessary corporate action to authorize and approve the issuance and terms of any Debt Securities, the
terms of the offering thereof and related matters and (b) due execution, authentication, issuance and delivery of such Debt Securities upon payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or
similar agreement approved by the board of directors and otherwise in accordance with the provisions of the applicable Indenture, such Debt Securities will constitute valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms.
2. With respect to the Subscription Rights, assuming the (a) taking of all necessary corporate action to authorize and approve the issuance and terms of any Subscription Rights,
the terms of the offering thereof and related matters and (b) due execution, authentication, issuance and delivery of such Subscription Rights upon payment of the consideration therefor provided for in the applicable definitive purchase,
underwriting or similar agreement approved by the board of directors and otherwise in accordance with the provisions of the applicable Subscription Rights Agreement, such Subscription Rights will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their terms.
3. With respect to the Warrants, assuming the (a) taking of all necessary corporate action to authorize and approve the issuance and terms of any Warrants, the terms of the
offering thereof and related matters and (b) due execution, authentication, issuance and delivery of such Warrants upon payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or similar agreement
approved by the board of directors and otherwise in accordance with the provisions of the applicable Warrant Agreement, such Warrants will constitute valid and legally binding obligations of the Company, enforceable against the Company in
accordance with their terms.
4. With respect to the Units, assuming the (a) taking of all necessary corporate action to authorize and approve the issuance and the terms of the Units, the related Unit
Agreement and any Securities which are components of the Units, the terms of the offering thereof and related matters and (b) due execution, countersignature (where applicable), authentication, issuance and delivery of the Units and the Securities
that are components of such Units in each case upon the payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or similar agreement approved by the board of directors, and otherwise in accordance with
the provisions of the applicable (i) memorandum and articles of association of the Company, in the case of Ordinary Shares, (ii) Indenture, in the case of Debt Securities, (iii) Subscription Rights Agreement, in the case of Subscription Rights and
(iv) Warrant Agreement, in the case of Warrants, such Units will be validly issued and will entitle the holders thereof to the rights specified in the Unit Agreements.
Our opinions herein reflect only the application of applicable laws of the State of New York and the federal laws of the United States of America and no opinion is expressed with
respect to the laws of any other jurisdiction or any effect which such laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly
stated herein.
The opinions set forth above are subject, as to the enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and
remedies of creditors generally and to the effect of general principles of equity.
In rendering the foregoing opinion, we are not passing upon, and assume no responsibility for, any disclosure in the Registration Statement or any related prospectus or other
offering material regarding the Company or the Securities or their offering and sale.
This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in
law that occur which could affect the opinions contained herein. This letter is being rendered solely for the benefit of the Company in connection with the matters addressed herein. This opinion may not be furnished to or relied upon by any
person or entity for any purpose without our prior written consent.
We consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the caption “Legal Matters” in the Prospectus. In giving
such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations of the Commission thereunder.
|
|
Very truly yours,
/s/ Carter Ledyard & Milburn LLP
|
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 (the “Company”) included in the Company’s 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 included in the Company’s 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 report in the Registration Statement, and to the use of our name as it appears under the caption “Experts.”
/s/ Grant Thornton
Dublin, Ireland
June 21, 2024