Registration No. 333-
As filed with
the Securities and Exchange Commission on November 13, 2020
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ALTERITY THERAPEUTICS LIMITED
(Exact name of registrant as specified
in its charter)
Australia
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Not Applicable
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(State or other jurisdiction of
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(I.R.S. Employer
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incorporation or organization)
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Identification No.)
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ABN 37 080 699 065
Level 3, 460 Bourke
Street, Melbourne, Victoria 3000 Australia
Tel. +61-3-9349-4906
(Address and telephone number of registrant’s
principal executive offices)
Puglisi & Associates
850 Library Avenue, Suite 204
P.O. Box 885
Newark, Delaware 19715
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.
Guy Ben-Ami, Esq.
Carter Ledyard & Milburn
LLP
2 Wall Street
New York, NY 10005
Tel: 212-238-8605
Fax: 212-732-3232
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David
Rodda, Esq.
Quinert Rodda & Associates
Pty Ltd.
PO Box 16109, Collins Street
West,
Vic 8007, Australia
Tel: (61 3) 8692 9000
Fax: (61 3) 8692 9040
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Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this Registration Statement.
If the only securities being registered
on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered
on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, please
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.
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Emerging growth company ☐
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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.
CALCULATION OF REGISTRATION FEE1
Title
of each class of securities to be registered
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Amount
to
be
Registered
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Proposed
maximum
offering price
per
share (3)
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Proposed
maximum
aggregate
offering
price (3)
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Amount
of
registration
fee
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Ordinary
shares, no par value per share (1)
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10,124,848
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(2)
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$
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0.0193
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$
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195,746.52
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$
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21.36
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(1)
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The ordinary shares registered hereby
may be evidenced by American Depositary Shares (“ADSs”). ADSs evidenced by
American Depositary Receipts (each ADS representing sixty ordinary shares), have been
registered on a separate registration statement on Form F-6 filed on August 28, 2006,
as amended on December 21, 2007 and November 6, 2014 and as supplemented on April 8,
2019 (File No. 333-199907).
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(2)
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In addition to the ordinary shares set
forth in this table, the amount to be registered includes any additional ordinary shares
that become issuable by reason of any stock dividend, stock split or other similar transaction
in accordance with Rule 416(a) under the Securities Act of 1933, as amended.
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(3)
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Estimated solely for the purpose of calculating
the amount of the registration fee pursuant to Rule 457(c) under the Securities Act of
1933, as amended, and based on the high and low prices of the registrant’s ADSs
on the NASDAQ Capital Market on November 12, 2020 (to give effect to the 60:1 ratio of
ordinary shares to ADSs).
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The registrant hereby
amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such
date as the Commission, acting pursuant to said Section 8(a), may determine.
The information
contained in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it
is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED NOVEMBER 13, 2020
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ALTERITY
THERAPEUTICS LIMITED
10,124,848 Ordinary Shares represented
by
168,747 American Depositary
Shares
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This prospectus relates to the resale,
from time to time, by the selling shareholders named in this prospectus, or the Selling Shareholders, of up to 10,124,848 ordinary
shares represented by 168,747 American Depositary Shares, or ADSs, of Alterity Therapeutics Ltd., or Alterity. The Selling Shareholders
acquired these securities from us in a private placement to institutional accredited investors on October 22, 2020.
Our ADSs trade on the Nasdaq Capital Market
under the symbol “ATHE”. On November 12, 2020, the last reported sale price of our ADSs on the Nasdaq Capital Market
was $1.16 per ADS. The Selling Shareholders may offer and sell any of the ADSs from time to time at fixed prices, at market prices
or at negotiated prices, and may engage a broker, dealer or underwriter to sell the shares. For additional information on the
possible methods of sale that may be used by the Selling Shareholders, you should refer to the section entitled “Plan of
Distribution” elsewhere in this prospectus. We will not receive any proceeds from the sale of any ADSs by the Selling Shareholders.
We do not know when or in what amount the Selling Shareholders may offer the ADSs for sale. The Selling Shareholders may sell
any, all or none of the ordinary shares or ADSs offered by this prospectus.
INVESTING
IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK. SEE “RISK FACTORS” BEGINNING ON PAGE 4 AND UNDER SIMILAR HEADINGS
IN THE OTHER DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD
BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE SECURITIES OFFERED HEREBY.
NEITHER THE U.S. SECURITIES AND EXCHANGE
COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this
prospectus is
TABLE OF CONTENTS
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.
In this prospectus, the
terms “we,” “us,” “Alterity” and “our” mean Alterity Therapeutics Limited and
its subsidiaries, unless otherwise indicated.
All references to “U.S.
dollars” or “US$” in this prospectus are to U.S. dollars, and all references to “Australian dollars”
or “A$” are to the currency of Australia.
SPECIAL NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus, including the information
incorporated by reference into this prospectus, contains, and any prospectus supplement may contain, forward-looking statements
within the meaning of the federal securities laws. The use of the words “projects,” “expects,” “may,”
“plans” or “intends,” or words of similar import, identifies a statement as “forward-looking.”
The forward-looking statements included herein are based on current expectations that involve a number of risks and uncertainties,
including our ability to among other things: (i) predict the success, cost and timing of our product development activities and
clinical trials, including statements regarding the timing of initiation and completion of preclinical studies, and related preparatory
work, and the timing of the availability of the results of these studies; (ii) obtain funding for our operations, including funding
necessary to complete further development of our drug candidates for the treatment of neurodegenerative diseases, and if successful,
commercialization of these candidates as drug or non-drug products; (iii) obtain regulatory approvals for our product candidates;
(iv) obtain and maintain intellectual property protection for our product candidates; or (v) predict effects of various events
on our future operating results is inherently uncertain. Therefore, we caution you to consider carefully the matters described
under the caption “Risk Factors” and certain other matters discussed in this prospectus supplement, the accompanying
prospectus, the documents incorporated by reference in the accompanying prospectus, and other publicly available sources.
Such factors and many other factors beyond the control of our management could cause our actual results, performance or achievements
to be materially different from any future results, performance or achievements that may be expressed or implied by the forward-looking
statements.
In light of the significant
uncertainties inherent in the forward-looking information included herein, the inclusion of such information should not be regarded
as a representation by us or any other person that our objectives or plans will be achieved. Factors that could cause actual results
to differ from our expectations or projections include the risks and uncertainties relating to our business described or incorporated
by reference in this prospectus. We caution you to carefully consider these risks and not to place undue reliance on our forward-looking
statements. Except as required by applicable law, including the securities laws of the United States, we do not intend to update
or revise any forward-looking statements, whether as a result of new information, future events or otherwise, and we assume no
responsibility for updating any forward-looking statements.
PROSPECTUS SUMMARY
You should read the
following summary together with the more detailed information about us, the ADSs that may be sold from time to time, and our financial
statements and the notes to them, all of which appear elsewhere in this prospectus or in the documents incorporated by reference
in this prospectus.
We were incorporated under the laws of
the Commonwealth of Australia on November 11, 1997 under the name Prana Biotechnology Limited and began limited operations shortly
thereafter. We changed our name to Alterity Therapeutics Limited on April 8, 2019. Our mission
is to develop therapeutic drugs designed to treat the underlying causes of degeneration of the brain as the aging process progresses.
While we historically focused on drugs targeting Alzheimer’s disease and Huntington disease, we are currently concentrating
our efforts on drugs targeting Parkinsonian and other movement disorders. Other potential applications for our proprietary compounds
include the treatment or amelioration of neurodegenerative disorders such as tauopathies, Motor Neuron disease, Creutzfeldt-Jakob
disease (the human variant of Mad Cow disease), certain cancers, age-related macular degeneration, or antibiotic resistance.
ATH434 (formerly PBT434), Alterity’s
leading drug candidate, has received orphan drug designation for Multiple System Atrophy, or MSA, in the U.S. and EU, conferring
7 and 10 years of market exclusivity respectively in addition to other benefits. MSA is a rare and rapidly progressive neurological
disorder affecting adults. It has not known cause. In addition to presenting with motor symptoms like those in Parkinson’s
disease, individuals with MSA may also experience loss of ability to co-ordinate voluntary movements and impaired ability to maintain
normal blood pressure, bowel function and bladder control. Most of these symptoms are not addressed by available drugs for patients
with Parkinson’s disease. As the condition progresses, daily activities become increasingly difficult and complications
such as increased difficulty swallowing, vocal cord paralysis, progressive immobility, and poor balance become more prominent.
Symptoms tend to appear after age 50 and rapidly advance, leading to profound disability. Preclinical studies showed that ATH434
reduced the pathological markers of MSA and a related disorder, Parkinson’s disease. They also demonstrated improved function
and a neuroprotective benefit, with potential to modify the progression of these diseases. Phase 1 trials indicated that ATH434
had a favourable safety and pharmacokinetic profile, achieving drug concentrations at the site of action that met or exceeded
those associated with efficacy in animal models of Parkinson’s disease and MSA. No assurance can be given that ATH434 will
succeed.
Recent Private Placement and this Offering
On October 15, 2020, we received binding
commitments for a capital raising of A$35 million via a two tranche private placement to Australian and International institutions
and other unrelated sophisticated, professional or exempt investors. The placement was fully subscribed and was conducted at $0.037
per share, representing a discount of 25.7% to the 30-day VWAP and 24.8% discount to the 15 day VWAP prior to the initiation
of the private placement. For every share allocated in tranche two of the placement, one option will be issued. The options will
have an exercise price of A$0.07 and will expire three years after issuance.
Tranche One of the Placement raised A$10
million in accordance with the Company’s available placement capacity pursuant to ASX Listing Rules 7.1 (162,750,604 shares)
and 7.1A (108,500,403 shares), being a total of 271,251,007 shares. Tranche Two is to raise A$25 million (674,694,939 shares and
one (1) for one (1) free attaching options) conditional on shareholder approval to be sought at our Annual General Meeting to
take place on November 18, 2020. This prospectus relates solely to the ordinary shares sold in a private placement to institutional
accredited investors conducted in the U.S pursuant to an exemption from registration under the Securities Act of 1933, as amended.
The proceeds from these two private placements
will enable us to progress our clinical development program for ATH434 including, a Natural History study and a Phase 2
trial, both in MSA patients, ongoing research and discovery, and working capital. ATH434 is in development for MSA, its first
disease target.
Corporate Information
Our registered office is located at Level
3, 62 Lygon Street, Carlton, Victoria, 3053, Australia and our telephone number is 011-61-3-9824-5254. Our principal executive
office is located at Level 3, 460 Bourke Street, Melbourne, VIC 3000, Australia and our telephone number is 011-61-3-9349-4906.
Our address on the internet is www.alteritytherapeutics.com. The information in our website is not incorporated by reference into
this prospectus and should not be considered as part of this prospectus.
Ordinary shares offered by the selling shareholder(s)
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Shares
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NASDAQ Capital Market symbol
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“ATHE”
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Use of proceeds
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We will not receive any proceeds from the sale of the ordinary shares offered hereby.
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Ordinary shares outstanding as of October 30, 2020
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1,356,225,039 shares
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Risk factors
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Prospective investors should carefully consider the Risk Factors beginning on Page 4 and under similar headings
in the other documents that are incorporated by reference into this prospectus for a discussion of certain factors that should
be considered before buying the ordinary shares offered hereby.
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RISK FACTORS
An investment in our securities is speculative and involves
a high degree of risk. You should consider carefully the risks described below, described under the heading “Risk
Factors” in our Annual Report on Form 20-F for the fiscal year ended June 30, 2020 and described under
similar headings in the other documents we incorporate by reference herein, together with all other information in this prospectus,
any prospectus supplement and any free writing prospectus that we have authorized for use and the other information and documents
incorporated by reference herein and therein before you make a decision to invest in the ADSs. If any of the identified events
actually occur, our business, operating results, prospects or financial condition could be materially and adversely affected.
This could cause the trading price of the ADSs to decline and you may lose all or part of your investment. The risks described
below or incorporated by reference are not the only ones that we face. Additional risks not presently known to us or that we currently
deem immaterial may also affect our business operations. This prospectus and statements that we may make from time to time may
contain forward-looking information. There can be no assurance that actual results will not differ materially from our expectations,
statements or projections.
Risks Relating to the Offering
Sales of ADSs issuable upon exercise of the ordinary
shares and options that may be issued in the second tranche of our October private placement may cause the market price of our
ordinary shares and ADSs to decline.
On November 18, 2020, a vote will be taken
at our Annual General Meeting to permit the issuance of 674,694,939 ordinary shares, representing approximately 11,244,916 ADSs,
at a purchase price per ordinary share of A$0.037 and on a one (1) for one (1) basis free attaching options having an exercise
price of A$0.07 per share. The sale of such ordinary shares and ordinary shares issuable upon exercise of the options that may
be issued in the second tranche, may cause the market price of our ADSs to decline or become more volatile. In addition, the fact
that the Selling Shareholders, can sell substantial amounts of ADSs in the public market, whether or not sales have occurred or
are occurring, could make it more difficult for us to raise additional financing through the sale of equity or equity-related
securities in the future at a time and price that we deem reasonable or appropriate.
We will need substantial additional funding to complete
our clinical trials and to operate our business; such funding may not be available or, if it is available, such financing is likely
to substantially dilute our existing shareholders.
We will need to secure additional financing
in order to continue to meet our longer-term business objectives, including advancement of our research and development programs
and we may also require additional funds to pursue regulatory clearances, defend our intellectual property rights, establish commercial
scale manufacturing facilities, develop marketing and sales capabilities and fund operating expenses. We intend to seek such additional
funding through public or private financings and/or through licensing of our assets or strategic alliances or other arrangements
with corporate partners.
Our actual cash requirements may vary materially
from those now planned and will depend upon numerous factors, including:
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the continued progress of our research and development programs;
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the timing, scope, results and costs of nonclinical studies and clinical trials;
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the cost, timing and outcome of regulatory submissions and approvals;
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determinations as to the commercial potential of our product candidates;
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our ability to successfully expand our contract manufacturing services;
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our ability to establish and maintain collaborative arrangements; and
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the status and timing of competitive developments.
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If we fail to generate revenue and eventually
become and remain profitable, or if we are unable to fund our continuing losses, our shareholders could lose all or part of their
investments.
Until we can generate a sufficient amount
of product revenue to finance our cash requirements, which we may never achieve, we expect to finance our cash needs primarily
through public or private equity offerings, debt financings or through strategic alliances.
We cannot be certain that additional funding
will be available on acceptable terms or at all. If we are not able to secure additional funding when needed, we may have to delay,
reduce the scope of, or eliminate one or more of our clinical trials, collaborative research or development programs or future
commercialization initiatives. In addition, any additional funding that we do obtain will dilute the ownership held by our existing
security holders. The amount of this dilution may be substantially increased if the trading price of our shares are lower at the
time of any financing. Regardless, the economic dilution to shareholders will be significant if our stock price does not increase
significantly, or if the effective price of any sale is below the price paid by a particular shareholder. Any debt financing could
involve substantial restrictions on activities and creditors could seek a pledge of some or all of our assets. We have not identified
potential sources for the additional financing that we will require, and we do not have commitments from any third parties to
provide any future financing. If we fail to obtain additional funding as needed, we may be forced to cease or scale back operations,
and our results, financial condition and stock price would be adversely affected.
We expect that the COVID-19 pandemic will have general
economic consequences that will impact our company.
In December 2019, a novel strain of coronavirus
(COVID-19) emerged in Wuhan, Hubei Province, China. While initially the outbreak was largely concentrated in China and caused
significant disruptions to its economy, it has now spread globally.
The jurisdictions in which we conduct our
business have imposed mandates and regulations or suggested measures to counter the spread of the COVID-19 virus and control the
level of the pandemic within its population and the economic activities of their respective economies. These collectively have
changed over the course of the pandemic and are expected to continue to evolve in response to the changing nature of the pandemic
and the population and economic response to the virus and the many different measures prompted by the pandemic. We have been affected
in a number of ways, such as the way in which we operate our headquarters operations, our interaction with our scientists and
their activities, and planning for and carrying out clinical trials, all of which have experienced some short-term disruption
and may suffer long-term changes in the way we will do business. Actions such as government lock downs have slowed or, in some
cases, temporarily stopped research and development activities and clinical trials. Various safety protocols for personal interactions
may hamper research and development activities.
In addition to the government mandates
for controlling the many different health and economic effects of the COVID-19 virus and pandemic, individual institutions with
which we work, such as hospitals, laboratories and educational institutions have taken actions that will disrupt the progress
of our business plans for the Company and our individual subsidiaries. Most educational institutions and many laboratories curtailed
or limited access to their facilities in the first half of the 2020 year and are still working out how they will operate going
forward; we are expecting that going forward there will be strict limitations on access to these institutions and facilities for
our researchers and research partners. Overall, changes in the way our development activities can be conducted will result in
delays in our conducting research activities, carrying out clinical trials and making regulatory submissions. The financial effect
will be that our development expenses will increase and we will have to obtain additional capital funding. Any required additional
equity funding will be dilutive to the equity of our investors and debt financing will have restrictive covenants that could adversely
affect our business plans and operational objectives. Any further funding that we may need may not be available or even if available
it may not be on terms that are acceptable to us.
USE OF PROCEEDS
We will not receive the proceeds from the
resale of the ADSs by the Selling Shareholders.
CAPITALIZATION
The following table sets forth our capitalization
and indebtedness as of June 30, 2020 as derived from our audited financial statements, which are prepared in accordance with International
Financial Reporting Standards, as issued by the International Accounting Standards Board. The information in this table should
be read in conjunction with the financial statements and notes thereto and other financial information incorporated by reference
into this prospectus and any prospectus supplement.
The table below presents our
capitalization on an actual basis, and on an as-adjusted basis to give effect to our sale of 47,646,000 shares at
A$0.033 (A$1.97 per ADS) pursuant to the at-the-market (ATM) facility on 1 July 2020 and 271,251,007 shares at A$0.037
(A$2.22 per ADS) in a private placement that closed on October 22, 2020. The table below, however, does not give effect to
(i) the possible issuance pursuant to binding commitments of 674,694,939 shares and one (1) for one (1) free attaching
options and the ordinary shares issuable upon exercise of such options in the event of our obtaining shareholder approval of
such issuance and (ii) the issuance of 70,550,000 ordinary shares upon the exercise of outstanding options having exercise
prices ranging from A$0.07 to A$0.11 per share.
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As of June 30, 2020
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Actual
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As Adjusted
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Ordinary Shares, no par value, 1,037,358,032 shares issued and outstanding
and 1,356,255,039 shares issued and outstanding, as adjusted
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Issued capital
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160,703,754
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171,603,501
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Reserves
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866,121
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866,121 (1)
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Accumulated losses
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(154,418,671
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)
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(154,418,671
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)
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Total shareholders’ equity
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7,150,814
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18,050,951
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(1)
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Does
not include the issuance of 49,000,000 of the 70,550,000 outstanding options as of September
29, 2020.
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PRINCIPAL TRADING MARKETS
Our
ordinary shares have traded on the Australian Securities Exchange, or ASX, since our initial public offering in March 2000 and
now trade under the symbol “ATH.” Our ADSs have traded on the Nasdaq Capital Market since September 2002 and now trade
under the symbol “ATHE.” Prior to April 12, 2019, our ordinary shares traded
under the symbol “PBT” and prior to April 9, 2019, our ADSs traded under the symbol “PRAN.” Each ADS represents
60 ordinary shares.
Historical information
on the trading prices for our ordinary shares can be found on the website of the ASX (www.asx.com.au)
and for our ADSs on the website of Nasdaq (www.nasdaq.com).
SELLING SHAREHOLDERS
The table below lists the Selling Shareholders
and other information regarding the beneficial ownership of our ordinary shares (including ordinary shares represented by ADSs)
by each of the Selling Shareholders as of October 30, 2020.
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Ordinary
Shares Beneficially
Owned prior to the
Offering(2)
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Maximum Number of
Ordinary Shares to
Be Sold pursuant to
this Prospectus
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Ordinary
Shares Beneficially
Owned after the
Offering(2)(4)
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Name of Selling
Shareholder and Address(1)
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Number
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Percentage(3)
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Number
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Percentage
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Number
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Percentage(4)
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Alto
Opportunity Master Fund, SPC Segregated Master Portfolio “B” (5)
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4,622,327
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*
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%
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4,622,327
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*
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%
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-
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-
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Iroquois Master Fund Ltd.(6)
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5,502,521
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*
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%
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5,502,521
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*
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%
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-
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-
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(1)
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Unless
otherwise indicated, this table is based on information supplied to us by the Selling
Shareholders and our records. Each ADS represents 60 ordinary shares.
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(2)
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Beneficial
ownership is determined in accordance with Section 13(d) of the Exchange Act and
generally includes voting and investment power with respect to securities and including
any securities that grant the selling shareholder the right to acquire our ordinary shares
within 60 days of the date of this prospectus.
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(3)
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Applicable
percentage of ownership is based on 1,356,225,039 ordinary shares (including ordinary
shares represented by ADSs) outstanding as of October 30, 2020.
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(4)
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Assumes
that each Selling Shareholder disposes of all of the ordinary shares covered by this
prospectus (and does not acquire beneficial ownership of any additional ordinary shares
(including ordinary shares represented by ADSs). The registration of these ordinary shares
represented by ADSs does not necessarily mean, however, that the Selling Shareholder
will sell all or any portion of the securities covered by this prospectus.
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(5)
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Ayrton
Capital LLC, the investment manager to Alto Opportunity Master Fund, SPC - Segregated
Master Portfolio B, has discretionary authority to vote and dispose of the shares held
by Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B and may be deemed
to be the beneficial owner of these shares. Waqas Khatri, in his capacity as Managing
Member of Ayrton Capital LLC, may also be deemed to have investment discretion and voting
power over the shares held by Alto Opportunity Master Fund, SPC - Segregated Master Portfolio
B. Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B and Mr. Khatri each
disclaim any beneficial ownership of these shares. The address of Ayrton Capital LLC
is 55 Post Road West, 2nd Floor, Westport, CT. 06880.
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(6)
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Address is
c/o Iroquois Capital Management, LLC, 125 Park Avenue, 25th Floor, New York,
New York, 10017.
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PRIVATE PLACEMENT OF ORDINARY SHARES
On October 15, 2020, we received binding
commitments for a capital raising of A$35 million via a two tranche private placement to Australian and International institutions
and other unrelated sophisticated, professional or exempt investors. The placement was fully subscribed and was conducted at $0.037
per share, representing a discount of 25.7% to the 30-day VWAP and 24.8% discount to the 15 day VWAP prior to the initiation
of the private placement. For every share allocated in tranche two of the placement, one option will be issued. The options will
have an exercise price of A$0.07 and will expire three years after issuance.
Tranche One of the Placement raised A$10
million in accordance with the Company’s available placement capacity pursuant to ASX Listing Rules 7.1 (162,750,604 shares)
and 7.1A (108,500,403 shares), being a total of 271,251,007 shares. Tranche Two is to raise A$25 million (674,694,939 shares and
one (1) for one (1) free attaching options) conditional on shareholder approval to be sought at our Annual General Meeting to
take place on November 18, 2020. This prospectus relates solely to the ordinary shares sold in a private placement to institutional
accredited investors conducted in the U.S pursuant to an exemption from registration under the Securities Act. Except as described
herein or in the documents incorporated by reference herein, we did not have any material relationship with the Selling Shareholders
prior to the private placement.
PLAN OF DISTRIBUTION
Each Selling Shareholder and any of their
pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their ordinary shares represented by
ADSs covered by this prospectus on the Nasdaq Capital Market or any other stock exchange, market or trading facility on which
the securities are traded or in private transactions. These sales may be at fixed or negotiated prices.
A Selling Shareholders may use any one
or more of the following methods when selling securities:
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ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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block
trades in which the broker-dealer will attempt to sell the securities as agent but may
position and resell a portion of the block as principal to facilitate the transaction;
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its account;
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an
exchange distribution in accordance with the rules of the applicable exchange;
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privately
negotiated transactions;
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settlement
of short sales;
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in
transactions through broker-dealers that agree with the selling shareholders to sell
a specified number of such securities at a stipulated price per security;
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through
the writing or settlement of options or other hedging transactions, whether through an
options exchange or otherwise;
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a
combination of any such methods of sale; or
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any
other method permitted pursuant to applicable law.
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The Selling Shareholders may also sell
securities under Rule 144 or any other exemption from registration under the Securities Act, if available, rather than under this
prospectus.
Broker-dealers engaged by the Selling Shareholders
may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the Selling
Shareholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated,
but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a customary
brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction a markup or markdown in compliance
with FINRA IM-2440.
In connection with the sale of the securities
or interests therein, the Selling Shareholders may enter into hedging transactions with broker-dealers or other financial institutions,
which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The Selling Shareholders
may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities
to broker-dealers that in turn may sell these securities. The Selling Shareholders may also enter into option or other transactions
with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to
such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer
or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Shareholders and any broker-dealers
or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any
profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities
Act. Each Selling Shareholders has informed the Company that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the securities.
We required to pay certain fees and expenses
incurred by us incident to the registration of the securities. We have agreed to indemnify the Selling Shareholders against certain
losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus effective
until the earlier of (i) the date on which the securities may be resold by the Selling Shareholders without registration and without
regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance
with the current public information under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of
the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect.
The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities
laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and
is complied with.
Under applicable rules and regulations
under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market
making activities with respect to the ADSs for the applicable restricted period, as defined in Regulation M, prior to the commencement
of the distribution. In addition, the Selling Shareholders will be subject to applicable provisions of the Exchange Act and the
rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the ADSs by the
Selling Shareholders or any other person. We will make copies of this prospectus available to the Selling Shareholders and have
informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
DESCRIPTION OF OUR SHARE CAPITAL
The concept of authorized share capital
no longer exists in Australia and as a result, our authorized share capital is unlimited. All our outstanding ordinary shares
are validly issued, fully paid and non-assessable. The rights attached to our ordinary shares are as follows:
Dividend rights. If our board of
directors recommends a dividend, registered holders of our ordinary shares may declare a dividend by ordinary resolution in a
general meeting. The dividend, however, cannot exceed the amount recommended by our board of directors. Our board of directors
may declare an interim dividend. No dividend may be paid except out of our profits.
Voting rights. Holders of ordinary
shares have one vote for each ordinary share held on all matters submitted to a vote of shareholders. Such voting rights may be
affected by the grant of any special voting rights to the holders of a class of shares with preferential rights that may be authorized
in the future.
The quorum required for an ordinary meeting
of shareholders consists of at least two shareholders represented in person or by proxy who hold or represent, in the aggregate,
at least one third of the voting rights of the issued share capital. A meeting adjourned for lack of a quorum generally is adjourned
to the same day in the following week at the same time and place or any time and place as the directors designate in a notice
to the shareholders. At the reconvened meeting, the required quorum consists of any two members present in person or by proxy.
An ordinary resolution, such as a resolution
for the declaration of dividends, requires approval by the holders of a majority of the voting rights represented at the meeting,
in person, by proxy or by written ballot and voting thereon. Under our Constitution, a special resolution, such as amending our
Constitution, approving any change in capitalization, winding-up, authorization of a class of shares with special rights, or other
changes as specified in our Constitution, requires approval of a special majority, representing the holders of no less than 75%
of the voting rights represented at the meeting in person, by proxy or by written ballot, and voting thereon.
Pursuant to our Constitution, our directors
are elected at our annual general meeting of shareholders by a vote of the holders of a majority of the voting power represented
and voting at such meeting.
Rights in our profits. Our shareholders
have the right to share in our profits distributed as a dividend and any other permitted distribution.
Rights in the event of liquidation.
In the event of our liquidation, after satisfaction of liabilities to creditors, our assets will be distributed to the holders
of ordinary shares in proportion to the nominal value of their holdings. This right may be affected by the grant of preferential
dividend or distribution rights to the holders of a class of shares with preferential rights that may be authorized in the future.
Changing Rights Attached to Shares
According to our Constitution, in order
to change the rights attached to any class of shares, unless otherwise provided by the terms of the class, such change must be
adopted by a general meeting of the shareholders and by a separate general meeting of the holders of the affected class with a
majority of 75% of the voting power participating in such meeting.
Annual and Extraordinary Meetings
Our Board of Directors must convene an
annual meeting of shareholders at least once every calendar year, within five months of our last fiscal year-end balance sheet
data. Notice of at least twenty-eight (28) days prior to the date of the meeting is required. An extraordinary meeting may be
convened by the board of directors, it decides or upon a demand of any directors, or of one or more shareholders holding in the
aggregate at least five percent (5%) of our issued capital. An extraordinary meeting must be called not more than twenty-one (21)
days after the request is made. The meeting must be held not later than two months after the request is given.
Limitations on the Rights to Own Securities in Our Company
Neither our Constitution nor the laws of
the Commonwealth of Australia restrict in any way the ownership or voting of our shares.
Changes in Our Capital
Pursuant to the Listing Rules of the Australian
Securities Exchange, our directors may in their discretion issue securities equal to not more than 25% of our issued capital within
a 12-month period. Issuances of securities in excess of such amount require the approval of our shareholders by an ordinary resolution,
unless made under an exception contained in the Listing Rules of the Australian Securities Exchange which includes, among other
things, a pro rata offer to shareholders, offers or issues made under previously approved employee incentive schemes and share
purchase plans under Australian law involving an offer of up to A$30,000 of shares at the applicable price.
DESCRIPTION OF OUR AMERICAN DEPOSITARY
SHARES
American Depositary Shares
The Bank of New York Mellon, as depositary,
will register and deliver ADSs. Each ADS represents sixty ordinary shares (or a right to receive sixty ordinary shares) deposited
with HSBC Custody Nominees (Australia), as custodian for the depositary. Each ADS also represents any other securities, cash or
other property which may be held by the depositary. The depositary’s corporate trust office at which the ADSs are administered
is located at 101 Barclay Street, New York, New York 10286. The Bank of New York Mellon’s principal executive office
is located at 240 Greenwich Street, New York, New York 10286.
You may hold ADSs either (A) directly
(i) by having an American depositary receipt, which is a certificate evidencing a specific number of ADSs, registered in
your name, or (ii) by holding ADSs in the Direct Registration System, or (B) indirectly through your broker or other
financial institution. If you hold ADSs directly, you are an ADS holder. This description assumes you hold your ADSs directly.
If you hold the ADSs indirectly, you must rely on the procedures of your broker or other financial institution to assert the rights
of ADR holders described in this section. You should consult with your broker or financial institution to find out what those
procedures are.
The Direct Registration System is a system
administered by DTC pursuant to which the depositary may register the ownership of uncertificated ADSs, which ownership shall
be confirmed by periodic statements issued by the depositary to the ADS holders entitled thereto.
As
an ADS holder, we will not treat you as one of our shareholders and you will not have shareholder rights. Australian law governs
shareholder rights. The depositary will be the holder of the shares underlying your ADSs. As a holder of ADSs, you will have ADS
holder rights. A deposit agreement among us, the depositary and you, as an ADS holder, and the beneficial owners of ADSs set out
ADS holder rights as well as the rights and obligations of the depositary. New York law governs the deposit agreement and the
ADSs.
The following is a summary of the material
provisions of the deposit agreement. For more complete information, you should read the entire deposit agreement and the form
of American depositary receipt. Directions on how to obtain copies of those documents are provided under “Where You Can
Find Additional Information.”
Dividends and Other Distributions
If We Pay
a Dividend or Other Distribution, How Will You Receive Dividends and Other Distributions on the Shares?
In the event that we pay a cash dividend
or make another distribution, the depositary has agreed to pay to you the cash dividends or other distributions it or the custodian
receives on shares or other deposited securities, after deducting its fees and expenses. You will receive these distributions
in proportion to the number of shares your ADSs represent.
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Cash. The
depositary will convert any cash dividend or other cash distribution we pay on the shares
into U.S. dollars, if it can do so on a reasonable basis and can transfer the U.S. dollars
to the United States. If that is not possible or if any government approval is needed
and cannot be obtained, the deposit agreement allows the depositary to distribute the
foreign currency only to those ADR holders to whom it is possible to do so. It will hold
the foreign currency it cannot convert for the account of the ADS holders who have not
been paid. It will not invest the foreign currency and it will not be liable for any
interest.
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Before making a distribution, any withholding taxes,
or other governmental charges that must be paid will be deducted. The depositary will distribute only whole U.S. dollars
and cents and will round fractional cents to the nearest whole cent. If exchange rates fluctuate during a time when the depositary
cannot convert the foreign currency, you may lose some or all of the value of the distribution.
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Shares. The
depositary may distribute additional ADSs representing any shares we distribute as a
dividend or free distribution. The depositary will only distribute whole ADSs. It will
sell shares which would require it to deliver a fractional ADS and distribute the net
proceeds in the same way as it does with cash. If the depositary does not distribute
additional ADSs, the outstanding ADSs will also represent the new shares.
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Rights
to Purchase Additional Shares. If we offer holders of our securities any rights
to subscribe for additional shares or any other rights, the depositary may make these
rights available to you. If the depositary decides it is not legal and practical to make
the rights available but that it is practical to sell the rights, the depositary will
use reasonable efforts to sell the rights and distribute the proceeds in the same way
as it does with cash. The depositary will allow rights that are not distributed or sold
to lapse. In that case, you will receive no value for them.
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If the
depositary makes rights available to you, it will exercise the rights and purchase the shares on your behalf. The depositary will
then deposit the shares and deliver ADSs to you. It will only exercise rights if you pay it the exercise price and any other charges
the rights require you to pay.
U.S. securities laws may restrict transfers
and cancellation of the ADSs represented by shares purchased upon exercise of rights. For example, you may not be able to trade
these ADSs freely in the United States. In this case, the depositary may deliver restricted depositary shares that have the same
terms as the ADSs described in this section except for changes needed to put the necessary restrictions in place.
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Other
Distributions. The depositary will send to you anything else we distribute
on deposited securities by any means it thinks is legal, fair and practical. If it cannot
make the distribution in that way, the depositary has a choice. It may decide to sell
what we distributed and distribute the net proceeds, in the same way as it does with
cash. Or, it may decide to hold what we distributed, in which case ADSs will also represent
the newly distributed property. However, the depositary is not required to distribute
any securities (other than ADSs) to you unless it receives satisfactory evidence from
us that it is legal to make that distribution.
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The depositary is not responsible if it
decides that it is unlawful or impractical to make a distribution available to any ADS holders. We have no obligation to register
ADSs, shares, rights or other securities under the Securities Act. We also have no obligation to take any other action to permit
the distribution of ADSs, shares, rights or anything else to ADS holders. This means that you may not receive the distributions
we make on our shares or any value for them if it is illegal or impractical for us to make them available to you.
Deposit, Withdrawal and Cancellation
How Are ADSs Issued?
The depositary will deliver ADSs if you
or your broker deposits shares or evidence of rights to receive shares with the custodian. Upon payment of its fees and expenses
and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees, the depositary will register the appropriate
number of ADSs in the names you request and will deliver the ADSs to or upon the order of the person or persons entitled thereto.
How Do ADS Holders Cancel an
ADS?
You may turn in your ADSs at the depositary’s
corporate trust office. Upon payment of its fees and expenses and of any taxes or charges, such as stamp taxes or stock transfer
taxes or fees, the depositary will deliver the shares and any other deposited securities underlying the ADSs to you or a person
you designate at the office of the custodian. Or, at your request, risk and expense, the depositary will deliver the deposited
securities at its corporate trust office, if feasible.
How Do ADS Holders Interchange
Between Certificated ADSs and Uncertificated ADSs?
You may surrender
your ADR to the depositary for the purpose of exchanging your ADR for uncertificated ADSs. The depositary will cancel that ADR
and will send you a statement confirming that you are the owner of uncertificated ADSs. Alternatively, upon receipt by the depositary
of a proper instruction from a holder of uncertificated ADSs requesting the exchange of uncertificated ADSs for certificated ADSs,
the depositary will execute and deliver to you an ADR evidencing those ADSs.
Voting Rights
How Do You Vote?
You may instruct the depositary to vote
the deposited securities, but only if we ask the depositary to ask for your instructions. Otherwise, you won’t be able
to exercise your right to vote unless you withdraw the shares. However, you may not know about the meeting enough in advance to
withdraw the shares.
If we ask for your instructions, the depositary
will notify you of the upcoming vote and arrange to deliver our voting materials to you. The materials will (1) describe
the matters to be voted on and (2) explain how you may instruct the depositary to vote the shares or other deposited securities
underlying your ADSs as you direct. For instructions to be valid, the depositary must receive them on or before the date specified.
The depositary will try, as far as practical, subject to the laws of Australia and our Constitution, to vote or to have its agents
vote the shares or other deposited securities as you instruct. The depositary will only vote or attempt to vote as you instruct.
We cannot assure you that you will receive
the voting materials in time to ensure that you can instruct the depositary to vote your shares. In addition, the depositary and
its agents are not responsible for failing to carry out voting instructions or for the manner of carrying out voting instructions.
This means that you may not be able to exercise your right to vote and there may be nothing you can do if your shares are not
voted as you requested.
In order to give you a reasonable opportunity
to instruct the depositary as to the exercise of voting rights relating to deposited securities, if we request the depositary
to act, we will try to give the depositary notice of any such meeting and details concerning the matters to be voted upon sufficiently
in advance of the meeting date.
Fees and Expenses
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Persons Depositing or Withdrawing Shares Must Pay:
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For:
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● US$3.00
(or less) per 100 ADSs (or portion of 100 ADSs)
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● Issuance
of ADSs, including issuances resulting from a distribution of shares or rights or other property
● Cancellation
of ADSs for the purpose of withdrawal, including if the deposit agreement terminates
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● US$0.003
(or less) per ADS
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● Any
cash distribution to you
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● A
fee equivalent to the fee that would be payable if securities distributed to you had been shares and the shares had been deposited
for issuance of ADSs
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● Distribution
of securities distributed to holders of deposited securities which are distributed by the depositary to ADS holders
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● US$1.50
(or less) per ADR
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● Transfers,
combination and split-up of ADRs
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● Expenses
of the depositary
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● Cable,
telex and facsimile transmissions (when expressly provided in the deposit agreement)
● Converting
foreign currency to U.S. dollars
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● Taxes
and other governmental charges the depositary or the custodian have to pay on any ADS or share underlying an ADS, for example,
stock transfer taxes, stamp duty or withholding taxes
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● As
necessary
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● Any
charges incurred by the depositary or its agents for servicing the deposited securities
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● As
necessary
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The depositary collects its fees for delivery
and surrender of ADSs directly from investors depositing shares or surrendering ADSs for the purpose of withdrawal or from intermediaries
acting for them. The depositary collects fees for making distributions to investors by deducting those fees from the amounts distributed
or by selling a portion of distributable property to pay the fees. The depositary may collect its annual fee for depositary services
by deduction from cash distributions or by directly billing investors or by charging the book-entry system accounts of participants
acting for them. The depositary may collect any of its fees by deduction from any cash distribution payable to ADS holders that
are obligated to pay those fees. The depositary may generally refuse to provide fee-attracting services until its fees for those
services are paid.
From time to time, the depositary may
make payments to us to reimburse us for costs and expenses generally arising out of establishment and maintenance of the ADS program,
waive fees and expenses for services provided to us by the depositary or share revenue from the fees collected from ADS holders.
In performing its duties under the deposit agreement, the depositary may use brokers, dealers, foreign currency dealers or other
service providers that are owned by or affiliated with the depositary and that may earn or share fees, spreads or commissions.
The depositary may convert currency itself
or through any of its affiliates and, in those cases, acts as principal for its own account and not as agent, advisor, broker
or fiduciary on behalf of any other person and earns revenue, including, without limitation, transaction spreads, that it will
retain for its own account. The revenue is based on, among other things, the difference between the exchange rate assigned to
the currency conversion made under the deposit agreement and the rate that the depositary or its affiliate receives when buying
or selling foreign currency for its own account. The depositary makes no representation that the exchange rate used or obtained
in any currency conversion under the deposit agreement will be the most favorable rate that could be obtained at the time or that
the method by which that rate will be determined will be the most favorable to ADS holders, subject to the depositary’s
obligations under the deposit agreement. The methodology used to determine exchange rates used in currency conversions is available
upon request.
Payment of Taxes
You will be responsible for any taxes or
other governmental charges payable on your ADSs or on the deposited securities represented by any of your ADSs. The depositary
may refuse to register any transfer of your ADSs or allow you to withdraw the deposited securities represented by your ADSs until
such taxes or other charges are paid. It may apply payments owed to you or sell deposited securities represented by your ADSs
to pay any taxes owed and you will remain liable for any deficiency. If the depositary sells deposited securities, it will, if
appropriate, reduce the number of ADSs to reflect the sale and pay to you any proceeds, or send to you any property, remaining
after it has paid the taxes.
Reclassifications, Recapitalizations
and Mergers
If we:
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Then:
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● Change
the nominal or par value of our shares
● Reclassify,
split up or consolidate any of the deposited securities
● Recapitalize,
reorganize, merge, liquidate, sell all or substantially all of our assets, or take any similar action
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● The
securities received by the depositary will become deposited securities. Each ADS will automatically represent its equal
share of the new deposited securities
● The
depositary may, and will if we ask it to, deliver new ADRs or ask you to surrender your outstanding ADRs in exchange for
new ADRs identifying the new deposited securities.
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Amendment and Termination
How May the Deposit Agreement
Be Amended?
We may agree with the depositary to amend
the deposit agreement and the ADSs without your consent for any reason. If an amendment adds or increases fees or charges, except
for taxes and other governmental charges or expenses of the depositary for registration fees, facsimile costs, delivery charges
or similar items, or prejudices a substantial right of ADS holders, it will not become effective for outstanding ADSs until 30 days
after the depositary notifies ADS holders of the amendment. At the time an amendment becomes effective, you are considered,
by continuing to hold your ADS, to agree to the amendment and to be bound by the ADRs and the deposit agreement as amended.
How May the Deposit Agreement
Be Terminated?
The depositary will terminate the deposit
agreement at our direction by mailing a notice of termination to the ADS holders then outstanding at least 90 days prior
to the date fixed in such notice for such termination. The depositary may also terminate the deposit agreement by mailing a notice
of termination to us and the ADS holders then outstanding if at any time 90 days shall have expired after the depositary
shall have delivered to our company a written notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment.
After termination, the depositary and its
agents will do the following under the deposit agreement but nothing else: collect dividends and other distributions on the deposited
securities, sell rights and other property, and deliver shares and other deposited securities upon cancellation of ADSs. One year
after termination, the depositary may sell any remaining deposited securities by public or private sale. After that, the depositary
will hold the money it received on the sale, as well as any other cash it is holding under the deposit agreement for the pro
rata benefit of the ADS holders that have not surrendered their ADSs. It will not invest the money and has no liability for
interest. The depositary’s only obligations will be to account for the money and other cash. After termination our only
obligations will be to indemnify the depositary and to pay fees and expenses of the depositary that we agreed to pay.
Limitations on Obligations and
Liability
Limits on Our Obligations and
the Obligations of the Depositary; Limits on Liability to Holders of ADSs
The deposit agreement expressly limits
our obligations and the obligations of the depositary. It also limits our liability and the liability of the depositary. We and
the depositary:
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are only obligated
to take the actions specifically set forth in the deposit agreement without negligence
or bad faith;
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are not liable
if either of us is prevented or delayed by law or circumstances beyond our control from
performing our obligations under the deposit agreement;
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are not liable
if either of us exercises discretion permitted under the deposit agreement;
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have no obligation
to become involved in a lawsuit or other proceeding related to the ADSs or the deposit
agreement on your behalf or on behalf of any other party if it involves expenses or liability
unless you furnish satisfactory indemnity;
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may rely upon
the advice of or information from legal counsel, accountants, any person presenting shares
for deposit and any other holder of ADSs or any other person if we believe in good faith
such person is competent to give such advice or information.
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In the deposit agreement, we and the depositary
agree to indemnify each other under certain circumstances.
Requirements for Depositary Actions
Before the depositary will deliver or register
a transfer of an ADS, make a distribution on an ADS, or permit withdrawal of shares, the depositary may require:
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payment of stock
transfer or other taxes or other governmental charges and transfer or registration fees
charged by third parties for the transfer of any shares or other deposited securities;
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satisfactory
proof of the identity and genuineness of any signature or other information it deems
necessary; and
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compliance with
regulations it may establish, from time to time, consistent with the deposit agreement,
including presentation of transfer documents.
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The depositary may refuse to deliver ADSs
or register transfers of ADSs generally when the transfer books of the depositary or our transfer books are closed or at any time
if the depositary or we think it advisable to do so.
Your Right to Receive the Shares
Underlying Your ADRs
You have the right to cancel your ADSs
and withdraw the underlying shares at any time except:
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When temporary
delays arise because: (i) the depositary has closed its transfer books or we have
closed our transfer books; (ii) the transfer of shares is blocked to permit voting
at a shareholders’ meeting; or (iii) we are paying a dividend on our shares.
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When you or
other ADS holders seeking to withdraw shares owe money to pay fees, taxes and similar
charges.
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When it is necessary
to prohibit withdrawals in order to comply with any laws or governmental regulations
that apply to ADSs or to the withdrawal of shares or other deposited securities.
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This right of withdrawal may not be limited
by any other provision of the deposit agreement.
Pre-Release of ADSs
The deposit agreement permits the depositary
to deliver ADSs before deposit of the underlying shares. This is called a pre-release of the ADSs. The depositary may also deliver
shares upon cancellation of pre-released ADSs (even if the ADSs are cancelled before the pre-release transaction has been closed
out). A pre-release is closed out as soon as the underlying shares are delivered to the depositary. The depositary may receive
ADSs instead of shares to close out a pre-release. The depositary may pre-release ADSs only under the following conditions: (1) before
or at the time of the pre-release, the person to whom the pre-release is being made represents to the depositary in writing that
it or its customer owns the shares or ADSs to be deposited and assigns all beneficial rights, title and interest in such shares
or ADSs to the depositary; (2) the pre-release is fully collateralized with cash or other collateral that the depositary
considers appropriate; and (3) the depositary must be able to close out the pre-release on not more than five business days’
notice. In addition, the depositary will limit the number of ADSs that may be outstanding at any time as a result of pre-release
to 30% of the deposited shares, although the depositary may disregard the limit from time to time, if it thinks it is appropriate
to do so.
MATERIAL CONTRACTS
Our material contracts are described in
the documents incorporated by reference into this prospectus. See “Incorporation by Reference” below.
MATERIAL CHANGES
Except as described above or otherwise
described in our Annual Report on Form 20-F for the year ended June 30, 2020 and in our Reports on Form 6-K incorporated by reference
into this prospectus, no reportable material changed have occurred since June 30, 2020.
AUTHORIZED REPRESENTATIVE
Our authorized representative in the United
States for this offering as required pursuant to Section 6(a) of the Securities Act of 1933, is Puglisi & Associates;
850 Library Avenue, Suite 204; P.O. Box 885; Newark, Delaware 19715. We have agreed to indemnify the authorized representative
against liabilities under the Securities Act of 1933.
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 SEC 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.
SEC registration fee
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|
$
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22
|
|
EDGAR and printing fees
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|
|
2,000
|
|
Legal fees and expenses
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|
|
15,000
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|
Accounting fees and expenses
|
|
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20,000
|
|
Depositary fees and expenses
|
|
|
5,000
|
|
Miscellaneous
|
|
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2,000
|
|
Total
|
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$
|
44,022
|
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LEGAL MATTERS
The validity of the securities offered
hereunder will be passed upon for us by Quinert Rodda & Associates Pty Ltd., Melbourne, Australia, our Australian counsel.
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.
EXPERTS
The financial statements incorporated
in this Prospectus by reference to the Annual Report on Form 20-F for the year ended June 30, 2020 have been so incorporated
in reliance on the report (which contains an explanatory paragraph relating to the Company’s ability to continue as a
going concern as described in Note 1 to the financial statements) of PricewaterhouseCoopers, an independent registered public
accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We filed a registration statement on Form
F-3 to register with the SEC the securities described in this prospectus. This prospectus is part of that registration statement.
We refer you to this registration statement, for further information about us and the securities offered hereby.
We file annual and special reports and
other information with the SEC (Commission File Number 000-49843). These filings contain important information that does not appear
in this prospectus. Our SEC filings are available on the SEC Internet site at http://www.sec.gov, which contains periodic
reports and other information regarding issuers that file electronically. In addition, we make available, without charge, through
our website, www.alteritytherapeutics.com electronic copies of various filings with the SEC, including copies of our Annual Report
on Form 20-F. The information on our website is not and should not be considered part of this prospectus and is not incorporated
into this prospectus by reference.
INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE
The SEC 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 SEC. 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 SEC 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.
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●
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Our Annual Report on Form 20-F for the fiscal year ended June 30, 2020, as filed with the Commission on September 15, 2020;
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●
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The description
of our ADRs contained in our Form 20-F for the fiscal year ended June 30, 2020.
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In addition, we may incorporate by reference
into this prospectus our reports on Form 6-K filed after the date of this prospectus (and before the time that all of the securities
offered by this prospectus have been sold or de-registered) if we identify in the report that it is being incorporated by reference
in this prospectus.
Certain statements in and portions of this
prospectus update and replace information in the above listed documents incorporated by reference. Likewise, statements in or
portions of a future document incorporated by reference in this prospectus may update and replace statements in and portions of
this prospectus or the above listed documents.
We will provide you without charge, upon
your written or oral request, a copy of any of the documents incorporated by reference in this prospectus, other than exhibits
to such documents which are not specifically incorporated by reference into such documents. Please direct your written or telephone
requests to Alterity Therapeutics Limited, Level 3, 460 Bourke Street, Melbourne, Victoria 3000 Australia Attn: Philip Hains,
Secretary, telephone number +61-3-9824-5254. You may also obtain information about us by visiting our website at http://www.alteritytherapeutics.com.
Information contained in our website is not part of this prospectus.
We are an Australian company and are a
“foreign private issuer” as defined in Rule 3b-4 under the Exchange Act. As a result, (1) our proxy solicitations
are not subject to the disclosure and procedural requirements of Regulation 14A under the Exchange Act, (2) transactions in our
equity securities by our officers and directors are exempt from Section 16 of the Exchange Act, and (3) 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. We make all required filings with the SEC electronically, and these filings are available
over the Internet at the SEC’s website at http://www.sec.gov.
ENFORCEABILITY OF CIVIL LIABILITIES
Service of process upon us and upon our
directors and officers and the Australian experts named in this prospectus, most of whom reside outside the United States, may
be difficult to obtain within the United States. Furthermore, because substantially all of our assets and substantially all of
our directors and officers are located outside the United States, any judgment obtained in the United States against us or any
of such directors and officers may not be collectible within the United States.
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.
Alterity
Therapeutics Limited
10,124,848 Ordinary Shares represented
by
168,747 American Depositary
Shares
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.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers.
Our Constitution provides that, subject
to the Australian Corporations Act, every director, secretary, manager or officer of our company or any person employed by our
company as auditor shall be indemnified out of our funds against all liability incurred by such person as a director or officer
in defending proceedings, whether civil or criminal, in which judgment is given in the persons favor or in which the person is
acquitted in connection with any application under the Australian Corporations Act in which relief is granted to the person by
a Court.
Under our Constitution no director, auditor
or other officer shall be liable for (i) any acts, receipts, neglect or defaults of any other director or officer for joining
in any receipt or other act for conformity; (ii) any loss or expense that may happen to us through the inefficiency or deficiency
of title to any property acquired by order of the directors or on our behalf; (iii) the inefficiency or deficiency of any security
in or upon which any of our monies shall be invested; (iv) any loss or damage arising from bankruptcy, insolvency or tortuous
act of any person with whom any monies, securities or effects shall be deposited; (v) any loss occasioned by any error of judgment,
omission, default or oversight on the persons part; or (vi) any other loss damage or misfortune whatsoever which shall happen
in relation to those things unless the same shall happen through the persons own negligence, default, breach or duty, breach of
trust or dishonesty.
In addition, our Constitution provides
that to the extent permitted by law, we may pay, or agree to pay, a premium in respect of a contract insuring a person who is
liable or has been an officer of our company or one of our subsidiaries against a liability:
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●
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incurred by
the person in his or her capacity as an officer of our company or a subsidiary of our
company provided that the liability does not arise out of a conduct involving a willful
breach of duty in relation to our company or a subsidiary of our company; or
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●
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for costs and
expenses incurred by that person defending proceedings, whatever their outcome.
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We maintain a directors’ and officers’
liability insurance policy. We have established a policy for the indemnification of our directors and officers against certain
liabilities incurred as a director or officer, including costs and expenses associated in successfully defending legal proceedings.
Item 9. Exhibits.
The index to exhibits appears below on
the page immediately following the signature pages of this Registration Statement.
Item 10. Undertakings.
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(1)
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The undersigned registrant hereby undertakes:
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(1)
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to file, during any period in which
offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i)
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to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933, or the Securities Act;
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(ii)
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to reflect in the prospectus any facts
or events arising after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in this Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Securities and Exchange Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement; and
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(iii)
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to include any material information
with respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in this Registration Statement;
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provided, however, that
paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, or the Exchange Act, that
are incorporated by reference in this Registration Statement or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the Registration Statement.
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(2)
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That, for the purpose of determining
any liability under the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
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(3)
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To remove from registration by means
of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
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(4)
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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 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 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 or Rule 3-19 of Regulation
S-K if such financial statements and information are contained in periodic reports filed
with or furnished to the Securities and Exchange Commission by the registrant pursuant
to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the
Form F-3.
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(5)
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That, for the purpose of determining
any liability under the Securities Act to any purchaser:
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(i)
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each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be a part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
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(ii)
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each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii) or (x) for the purpose of providing the information required by Section 10(a)
of the Securities Act shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the offering described in
the prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in the registration
statement to which the prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof; provided, however,
that no statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such document immediately
prior to such effective date.
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(6)
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That, for the purpose of determining
liability of a registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications,
the undersigned registrant will be a seller to the purchaser and will be considered to
offer or sell such securities to such purchaser:
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(i)
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any preliminary prospectus or prospectus of the undersigned registrant
to the offering required to be filed pursuant to Rule 424;
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(ii)
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any free writing prospectus relating
to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by an undersigned registrant;
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(iii)
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the portion of any other free writing
prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant;
and
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(iv)
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any other communication that is an
offer in the offering made by the undersigned registrant to the purchaser.
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(7)
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The undersigned registrant hereby
undertakes that, for purposes of determining any liability under the Securities Act,
each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
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(8)
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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 15, or otherwise,
the registrant has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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(1)
|
Incorporated by
reference to Exhibit 1.1 to the Registrant’s Annual Report on Form 20-F for the
year ended June 30, 2009.
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(2)
|
Incorporated by reference to Exhibit 4.2 to the Registrant’s
Form F-3 Registration Statement filed with the Securities and Exchange Commission on May 13, 2019 (File No. 333-231417).
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(3)
|
Incorporated by
reference to the Form F-6 Registration Statement filed with the Securities and Exchange
Commission on November 6, 2014 and as supplemented on April 8, 2019 (File No. 333-199907).
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SIGNATURES
Pursuant to the requirements of the Securities
Act, the Registrant certifies that it has reasonable grounds to believe that it complies with all of the requirements for filing
on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in Melbourne, Australia, on November 13, 2020.
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By:
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/s/ Geoffrey
Kempler
|
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Geoffrey Kempler
|
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Chairman of the Board of Directors and
Chief Executive Officer
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KNOW ALL PERSONS BY THESE PRESENTS, each
director and officer whose signature appears below constitutes and appoints, Geoffrey Kempler and Kathryn Andrews or either of
them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, to sign in any
and all capacities any and all amendments or post-effective amendments to this registration statement on Form F-3, and to sign
any and all additional registration statements relating to the same offering of securities of the Registration Statement that
are filed pursuant to Rule 462(b) of the Securities Act, and to file the same with all exhibits thereto and other documents in
connection therewith with the Securities and Exchange Commission, granting such attorney-in-fact and agent full power and authority
to do all such other acts and execute all such other documents as he or she may deem necessary or desirable in connection with
the foregoing, as fully as the undersigned may or could do in person, hereby ratifying and confirming all that such attorney-in-fact
and agent may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act, this registration statement has been signed below by the following persons in the capacities indicated on November 13, 2020.
Signature
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Title
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/s/ Geoffrey
Kempler
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Chairman of the Board of Directors and Chief
Executive Officer
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Geoffrey P. Kempler
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/s/ Kathryn
J.E. Andrews
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Chief Financial Officer
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Kathryn J. E. Andrews
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/s/ Lawrence
Gozlan
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Director
|
Lawrence Gozlan
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/s/
Peter Marks
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Director
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Peter Marks
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/s/ Brian
D. Meltzer
|
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Director
|
Brian D. Meltzer
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|
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/s/
David Sinclair
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Director
|
David Sinclair
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/s/ Tristan
Edwards
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Director
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Tristan Edwards
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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 Alterity
Therapeutics Limited, has signed this registration statement on November 13, 2020.
Puglisi & Associates
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|
|
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By:
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/s/ Donald
J. Puglisi
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Name: Donald J. Puglisi
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Title: Managing Director
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II-6
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