As filed with the Securities and Exchange
Commission on March 20, 2019
Registration No. 333-228121
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 1
To
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AURIS MEDICAL HOLDING LTD.
(Exact Name of Registrant as Specified in
Its Charter)
Bermuda
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Not Applicable
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification Number)
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Clarendon House
2 Church Street
Hamilton HM 11
Bermuda
Tel: (441) 295-5950
(Address, Including Zip Code, and Telephone
Number, Including Area Code, of Registrant’s Principal Executive Offices)
Cogency Global, Inc.
10 East 40
th
Street
New York, NY 10016
(212) 947-7200
(Name, Address, Including Zip Code, and
Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Michael J. Lerner, Esq.
Steven M. Skolnick, Esq.
Lowenstein Sandler LLP
1251 Avenue of the Americas
New York, NY 10020
Tel: (212) 262-6700
Approximate date of commencement of
proposed sale to the public
: From time to time after this Registration Statement becomes effective.
If the only securities being registered
on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the
following box. ☒
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement
pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.☐
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered
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Amount to be Registered(1)
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Proposed Maximum Offering Price Per Unit(2)
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Proposed Maximum Aggregate Offering Price
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Amount of
Registration Fee(3)
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Primary Offering:
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Common Shares, par value CHF 0.02 per share
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(1)
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Debt securities
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(1)
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Warrants
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(1)
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Purchase Contracts
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(1)
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Units
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(1)
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Primary Offering Total
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$
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100,000,000
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$
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12,120
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Total
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$
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100,000,000
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$
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12,120
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*
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(1)
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There
are being registered hereunder such indeterminate number of the securities of each identified class being registered as may be
sold by the registrant from time to time at indeterminate prices, with the maximum aggregate public offering price not to exceed
$100,000,000.
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(2)
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The
proposed maximum aggregate price per unit of each class of securities will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of
securities pursuant to the General Instruction II.C. of Form F-3 under the Securities Act of 1933.
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(3)
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Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933. In no event
will the aggregate offering price of all securities sold by the registrant from time to time pursuant to this registration statement
exceed $100,000,000.
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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.
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (this
“Amendment”) to Registration Statement on Form F-3 (File No. 333-228121) (as amended, the “Registration Statement”)
is being filed pursuant to Rule 414(d) under the Securities Act of 1933 (the “Securities Act”) by Auris Medical Holding
Ltd., a Bermuda company, or “Auris Medical (Bermuda)”, as the successor issuer to Auris Medical Holding AG, a stock
corporation organized under the laws of Switzerland, or “Auris Medical (Switzerland)” under Rule 12g-3(a) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”). Effective March 18, 2019, Auris Medical (Switzerland) continued
its corporate existence from Switzerland to Bermuda (the “Redomestication”).
Auris Medical (Bermuda) expressly adopts
the Registration Statement, as modified by this Amendment, as its own registration statement for all purposes of the Securities
Act and the Exchange Act. For the purposes of this Amendment and the Registration Statement, references to the “Company,”
“Auris,” “we,” “our,” “us” and similar terms mean, as of any time prior to the
Redomestication, Auris Medical (Switzerland) and, as of any time after the Redomestication, Auris Medical (Bermuda). The information
contained in this Amendment sets forth additional information to reflect the Redomestication. All documents filed by the Company
under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act before the effective date of the Redomestication will not reflect
the change in our jurisdiction.
The information
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 we are
not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO
COMPLETION, DATED MARCH 20, 2019
PROSPECTUS
$100,000,000
Common Shares, Debt Securities, Warrants, Purchase Contracts and Units offered by the Company
AURIS MEDICAL HOLDING LTD.
(incorporated in Bermuda)
We may offer, from time to time, in one
or more offerings, common shares, senior debt securities, subordinated debt securities, warrants, purchase contracts or units,
which we collectively refer to as the “securities.” The aggregate initial offering price of the securities that we
may offer and sell under this prospectus will not exceed $100,000,000. We may offer and sell any combination of the securities
described in this prospectus in different series, at times, in amounts, at prices and on terms to be determined at or prior to
the time of each offering. This prospectus describes the general terms of these securities and the general manner in which these
securities will be offered. We will provide the specific terms of these securities in supplements to this prospectus. The prospectus
supplements will also describe the specific manner in which these securities will be offered and may also supplement, update or
amend information contained in this prospectus. You should read this prospectus and any applicable prospectus supplement before
you invest.
The securities covered by this prospectus
may be offered through one or more underwriters, dealers and agents, or directly to purchasers. The names of any underwriters,
dealers or agents, if any, will be included in a supplement to this prospectus. For general information about the distribution
of securities offered, please see “Plan of Distribution” beginning on page 34.
Our
common shares are listed on the Nasdaq Capital Market under the symbol “EARS.” On March 15, 2019, the last sale price
of our common shares as reported by the Nasdaq Capital Market was $0.38 per common share. As of March 18, 2019, the aggregate
market value of our outstanding common shares held by non-affiliates was approximately $11.9 million based on 37,495,859 outstanding
common shares, of which approximately 31,284,920 common shares were held by non-affiliates. We have offered approximately
$4.8
million of our common shares pursuant to General Instruction I.B.5 of Form F-3 during the prior 12 calendar month period
that ends on, and includes, the date of this prospectu
s.
Investing in our securities involves
risks. See “Risk Factors” beginning on page 3 of this prospectus.
Neither the U.S. Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal offense.
Consent under the Exchange Control Act
1972 (and its related regulations) from the Bermuda Monetary Authority for the issue and transfer of our common shares to and between
residents and non-residents of Bermuda for exchange control purposes has been obtained for so long as our common shares remain
listed on an “appointed stock exchange,” which includes the Nasdaq Capital Market. In granting such consent, neither
the Bermuda Monetary Authority nor the Registrar of Companies in Bermuda accepts any responsibility for our financial soundness
or the correctness of any of the statements made or opinions expressed herein.
The date of this prospectus is , 2019.
We have not authorized anyone to provide
any information other than that contained or incorporated by reference in this prospectus or any related prospectus supplement
or in any free writing prospectus prepared by or on behalf of us or to which we have referred you. We have not authorized anyone
to provide you with different or additional information. We take no responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you. We are not making an offer of securities in any state where the
offer is not permitted. You should not assume that the information contained in or incorporated by reference in this prospectus
is accurate as of any date other than the date on the front of this prospectus.
table
of contents
Unless otherwise indicated or the context
otherwise requires, all references in this prospectus to “Auris Medical Holding Ltd.” or “Auris,” the “Company,”
“we,” “our,” “ours,” “us” or similar terms refer to (i) Auris Medical Holding AG
(formerly Auris Medical AG), or Auris Medical (Switzerland), together with its subsidiaries, prior to our corporate reorganization
by way of the Merger (as defined below) on March 13, 2018 (i.e. to the transferring entity), (ii) to Auris Medical Holding AG (formerly
Auris Medical NewCo Holding AG), together with its subsidiaries after the Merger (i.e. to the surviving entity) and prior to the
Redomestication (as defined below) and (iii) to Auris Medical Holding Ltd., a Bermuda company, or Auris Medical (Bermuda), the
successor issuer to Auris Medical (Switzerland) under Rule 12g-3(a) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), after the effective time at which Auris Medical (Switzerland) continued its corporate existence from Switzerland to
Bermuda (the “Redomestication”), which occurred March 18, 2019. The trademarks, trade names and service marks appearing
in this prospectus are property of their respective owners.
On March 13, 2018, Auris NewCo Holding
AG merged (the “Merger”) with Auris Medical Holding AG (“Auris OldCo”), a corporation (Aktiengesellschaft)
organized in accordance with Swiss law and domiciled in Switzerland. The Merger took place following Auris OldCo shareholder approval
at an extraordinary general meeting of shareholders held on March 12, 2018. Auris NewCo Holding AG changed its name to Auris Medical
Holding AG following consummation of the Merger.
Unless indicated or the context otherwise
requires, (i) all references in this prospectus to our common shares as of any date prior to March 13, 2018 refer to the common
shares of Auris Medical (Switzerland) (having a nominal value of CHF 0.40 per share) prior to the 10:1 “reverse share split”
effected through the Merger, (ii) all references to our common shares as of, and after, March 13, 2018 and prior to the Redomestication
refer to the common shares of Auris Medical (Switzerland) (having a nominal value of CHF 0.02 per share) after the 10:1 “reverse
share split” effected through the Merger and (iii) all references to our common shares as of, and after, the Redomestication
on March 18, 2019 refer to the common shares of Auris Medical (Bermuda) (having a par value of CHF 0.02 per share).
About
This Prospectus
This prospectus is part of a registration
statement that we filed with the Securities and Exchange Commission, or the SEC, utilizing a “shelf” registration process.
Under this shelf process, we may sell any combination of the securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide
a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may
also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement
together with additional information described under the headings “Where You Can Find More Information” and “Incorporation
of Certain Information by Reference.”
We have filed or incorporated by reference
exhibits to the registration statement of which this prospectus forms a part. You should read the exhibits carefully for provisions
that may be important to you.
Neither the delivery of this prospectus
nor any sale made under it implies that there has been no change in our affairs or that the information in this prospectus is correct
as of any date after the date of this prospectus. You should not assume that the information in this prospectus, including any
information incorporated in this prospectus by reference, the accompanying prospectus supplement or any free writing prospectus
prepared by us, is accurate as of any date other than the date on the front of those documents. Our business, financial condition,
results of operations and prospects may have changed since that date.
You should not assume that the information
contained in this prospectus is accurate as of any other date.
Where
You Can Find More Information
We file annual reports on Form 20-F, reports
on Form 6-K, and other information with the SEC under the Securities Exchange Act of 1934, as amended, or the Exchange Act. You
may read and copy this information at the following location of the SEC: Public Reference Room, 100 F Street, N.E., Washington,
D.C. 20549.
You may obtain information on the operation
of the SEC’s Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet site that contains
reports and other information about issuers like us who file electronically with the SEC. The address of the site is http://www.sec.gov.
As a foreign private issuer, we are exempt
under the Exchange Act from, among other things, the rules prescribing the furnishing and content of proxy statements, and our
directors, executive officers and principal shareholders are exempt from the reporting and short-swing profit recovery provisions
contained in Section 16 of the Exchange Act.
Special
Note Regarding Forward-Looking Statements
This prospectus and the financial statements
and other documents incorporated by reference in this prospectus contain forward-looking statements, including statements concerning
our industry, our operations, our anticipated financial performance and financial condition, and our business plans and growth
strategy and product development efforts. These statements constitute forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Exchange Act. The words “may,”
“might,” “will,” “should,” “estimate,” “project,” “plan,”
“anticipate,” “expect,” “intend,” “outlook,” “believe” and other similar
expressions are intended to identify forward-looking statements. Readers are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of their dates. These forward-looking statements are based on estimates and assumptions by our
management that, although we believe to be reasonable, are inherently uncertain and subject to a number of risks and uncertainties.
Forward-looking statements appear in
a number of places in this prospectus and include, but are not limited to, statements regarding our intent, belief or current
expectations. Forward-looking statements are based on our management’s beliefs and assumptions and on information
currently available to our management. Such statements are subject to risks and uncertainties, and actual results may differ
materially from those expressed or implied in the forward-looking statements due to various factors, including, but not
limited to:
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our
operation as a development-stage company with limited operating history and a history of operating losses;
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our
need for substantial additional funding to continue the development of our product candidates before we can expect to become profitable
from sales of our products and the possibility that we may be unable to raise additional capital when needed;
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the
outcome of our review of strategic options and of any action that we may pursue as a result of such review;
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our
dependence on the success of AM-125, AM-201, Keyzilen® (AM-101) and Sonsuvi® (AM-111), which are still in clinical development,
may eventually prove to be unsuccessful;
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the
chance that we may become exposed to costly and damaging liability claims resulting from the testing of our product candidates
in the clinic or in the commercial stage;
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the
chance our clinical trials may not be completed on schedule, or at all, as a result of factors such as delayed enrollment or the
identification of adverse effects;
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uncertainty
surrounding whether any of our product candidates will receive regulatory approval, which is necessary before they can be commercialized;
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if
our product candidates obtain regulatory approval, our product candidates being subject to expensive, ongoing obligations and
continued regulatory overview;
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enacted
and future legislation may increase the difficulty and cost for us to obtain marketing approval and commercialization;
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the
chance that we do not obtain orphan drug exclusivity for Sonsuvi®, which would allow our competitors to sell products that
treat the same conditions;
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dependence
on governmental authorities and health insurers establishing adequate reimbursement levels and pricing policies;
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our
products may not gain market acceptance, in which case we may not be able to generate product revenues;
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our
reliance on our current strategic relationships with INSERM or Xigen and the potential success or failure of strategic relationships,
joint ventures or mergers and acquisitions transactions;
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our
reliance on third parties to conduct our nonclinical and clinical trials and on third-party, single-source suppliers to supply
or produce our product candidates;
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our
ability to obtain, maintain and protect our intellectual property rights and operate our business without infringing or otherwise
violating the intellectual property rights of others;
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our
ability to meet the continuing listing requirements of Nasdaq and remain listed on The Nasdaq Capital Market;
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the
chance that certain intangible assets related to our product candidates will be impaired; and
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other
risk factors set forth in our most recent Annual Report on Form 20-F.
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Our actual results or performance could
differ materially from those expressed in, or implied by, any forward-looking statements relating to those matters. Accordingly,
no assurances can be given that any of the events anticipated by the forward-looking statements will transpire or occur, or if
any of them do so, what impact they will have on our results of operations, cash flows or financial condition. Except as required
by law, we are under no obligation, and expressly disclaim any obligation, to update, alter or otherwise revise any forward-looking
statement, whether written or oral, that may be made from time to time, whether as a result of new information, future events or
otherwise.
Auris
Medical Holding LTD.
We are a clinical-stage biopharmaceutical
company focused on the development of novel products that address important unmet medical needs in neurotology and central nervous
system disorders. We are focusing on the development of intranasal betahistine for the treatment of vertigo (AM-125) and for the
prevention of antipsychotic-induced weight gain and somnolence (AM-201). These programs have gone through two Phase 1 trials and
will move into proof-of-concept studies in 2019. In addition, we have two Phase 3 programs under development: (i) Keyzilen®
(AM-101), which is being developed for the treatment of acute inner ear tinnitus and (ii) Sonsuvi® (AM-111), which is being
developed for the treatment of acute inner ear hearing loss. Sonsuvi® has been granted orphan drug status by the FDA and the
EMA and has been granted fast track designation by the FDA.
We are an exempted company limited by shares
incorporated in Bermuda. We began our current operations in 2003. On April 22, 2014, we changed our name from Auris Medical AG
to Auris Medical Holding AG and transferred our operational business to our newly incorporated subsidiary Auris Medical AG, which
is now our main operating subsidiary. On March 13, 2018, we effected a corporate reorganization through the Merger into a newly
formed holding company for the purpose of effecting the equivalent of a 10-1 “reverse share split.” On March 18, 2019,
we continued our corporate existence from Switzerland to Bermuda. Our registered office in Bermuda is located at Clarendon House,
2 Church Street, Hamilton HM 11.
We maintain a website at www.aurismedical.com
where general information about us is available. Investors can obtain copies of our filings with the Securities and Exchange Commission,
or SEC, from this site free of charge, as well as from the SEC website at www.sec.gov. We are not incorporating the contents of
our website into this prospectus.
Risk
Factors
Before making a decision to invest in our
securities, you should carefully consider the risks described under “Risk Factors” in the applicable prospectus supplement
and in our then most recent Annual Report on Form 20-F, and in any updates to those risk factors in our reports on Form 6-K incorporated
herein, together with all of the other information appearing or incorporated by reference in this prospectus and any applicable
prospectus supplement, in light of your particular investment objectives and financial circumstances.
Use
of Proceeds
Unless otherwise indicated in a prospectus
supplement, the net proceeds from our sale of the securities will be used for general corporate purposes and other business opportunities.
Description
of Share Capital and BYE-LAWS
General
We are an exempted company incorporated
under the laws of Bermuda. We began our current operations in 2003 as a corporation organized in accordance with Swiss law and
domiciled in Switzerland under the name Auris Medical AG, and our name was changed to Auris Medical Holding AG on April 22, 2014.
Following the Merger on March 13, 2018, the surviving entity was named Auris Medical Holding AG. Upon the issuance of a certificate
of continuance by the Registrar of Companies in Bermuda on March 18, 2019, the Redomestication was effected and we continued in
Bermuda pursuant to Section 132C of the Companies Act as a Bermuda company with the name “Auris Medical Holding Ltd.”
Our registered office is located at Clarendon House 2 Church Street, Hamilton HM 11, Bermuda.
Our Memorandum of Continuance provides
that the objects of our business are unrestricted, and we have the capacity, rights, powers and privileges of a natural person.
There have been no material changes to
our share capital, mergers, amalgamations or consolidations of us or any of our subsidiaries, no material changes in the mode of
conducting our business, no material changes in the types of products produced or services rendered and no name changes. There
have been no bankruptcy, receivership or similar proceedings with respect to us or our subsidiaries.
There have been no public takeover offers
by third parties for our shares nor any public takeover offers by us for the shares of another company which have occurred during
the last or current financial years.
Share Capital
As of March 18, 2019, our authorized share
capital consisted of 200,000,000 common shares, par value CHF 0.02 per share, and 20,000,000 preference shares, par value CHF 0.02
per share, and there were 37,495,859 common shares issued and outstanding, excluding 992,777 common shares issuable upon exercise
of options and 6,544,791 common shares issuable upon exercise of warrants, and no preference shares issued and outstanding. All
of our issued and outstanding shares are fully paid.
Pursuant to our Bye-laws, subject to any
resolution of the shareholders to the contrary, our board of directors is authorized to issue any of our authorized but unissued
shares. There are no limitations on the right of non-Bermudians or non-residents of Bermuda to hold or vote our shares.
Common Shares
Holders of common shares have no pre-emptive,
redemption, conversion or sinking fund rights. Holders of common shares are entitled to one vote per share on all matters submitted
to a vote of holders of common shares. Unless a different majority is required by law or by the Bye-laws, resolutions to be approved
by holders of common shares require approval by a simple majority of votes cast at a meeting at which a quorum is present.
In the event of our liquidation, dissolution
or winding up, the holders of common shares are entitled to share equally and ratably in our assets, if any, remaining after the
payment of all of our debts and liabilities, subject to any liquidation preference on any issued and outstanding preference shares.
Preferred Shares
Pursuant to Bermuda law and our Bye-laws,
our board of directors by resolution may establish one or more series of preference shares having such number of shares, designations,
dividend rates, relative voting rights, conversion or exchange rights, redemption rights, liquidation rights and other relative
participation, optional or other special rights, qualifications, limitations or restrictions as may be fixed by the board without
any further shareholder approval. Such rights, preferences, powers and limitations as may be established could have the effect
of discouraging an attempt to obtain control of us.
Dividend Rights
Under Bermuda law, the board of directors
may declare a dividend without shareholder approval, but a company may not declare or pay dividends if there are reasonable grounds
for believing that: (i) the company is, or would after the payment be, unable to pay its liabilities as they become due; or (ii)
the realizable value of its assets would thereby be less than its liabilities. Under our Bye-laws, each common share is entitled
to dividends if, as and when dividends are declared by our board of directors, subject to any preferred dividend right of the holders
of any preference shares.
Variation of Rights
If at any time we have more than one class
of shares, the rights attaching to any class, unless otherwise provided for by the terms of issue of the relevant class, may be
varied either: (i) with the consent in writing of the holders of 75% of the issued shares of that class; or (ii) with the sanction
of a resolution passed by a majority of the votes cast at a general meeting of the relevant class of shareholders at which a quorum
consisting of at least two or more persons holding or representing issued and outstanding shares of the relevant class is present.
Our Bye-laws specify that the creation or issue of shares ranking equally with existing shares will not, unless expressly provided
by the terms of issue of existing shares, vary the rights attached to existing shares. In addition, the creation or issue of preference
shares ranking prior to common shares will not be deemed to vary the rights attached to common shares or, subject to the terms
of any other series of preference shares, to vary the rights attached to any other series of preference shares.
Transfer of Shares
Our board of directors may in its absolute
discretion and without assigning any reason refuse to register the transfer of a share that it is not fully paid. Our board of
directors may also refuse to recognize an instrument of transfer of a share unless it is accompanied by the relevant share certificate
and such other evidence of the transferor’s right to make the transfer as our board of directors shall reasonably require.
Subject to these restrictions, a holder of our common shares may transfer title to all or any of his common shares by completing
a form of transfer in the form set out in the Bye-laws (or as near thereto as circumstances admit) or in such other common form
as the board may accept. The instrument of transfer must be signed by the transferor and transferee, although in the case of a
fully paid share our board of directors may accept the instrument signed only by the transferor.
Share Split and Reverse Share Split effected by consolidating
our common shares
Our board of directors may in its absolute
discretion and without further approval of shareholders divide, consolidate or sub-divide our share capital in any manner permitted
by the Companies Act, including approving a reverse share split by consolidating our common shares (together with a corresponding
increase in the par value thereof) in a ratio determined by the board of directors. Our Bye-laws also provide that upon an alteration
or reduction of share capital where fractions of shares or some other difficult would arise, our board of directors may deal with
or resolve the same in any manner as it thinks fit.
Meeting of Shareholders
Under Bermuda law, a company is required
to convene at least one general meeting of shareholders each calendar year (the “annual general meeting”). However,
the members may by resolution waive this requirement, either for a specific year or period of time, or indefinitely. When the requirement
has been so waived, any member may, on notice to the company, terminate the waiver, in which case an annual general meeting must
be called.
Bermuda law provides that a special general
meeting of shareholders may be called by the board of directors of a company and must be called upon the request of shareholders
holding not less than 10% of the paid-up capital of the company carrying the right to vote at general meetings. Bermuda law also
requires that shareholders be given at least five days’ advance notice of a general meeting, but the accidental omission
to give notice to any person does not invalidate the proceedings at a meeting. The Bye-laws provide that the board of directors
may convene an annual general meeting or a special general meeting. Under the Bye-laws, at least 14 days’ notice of an annual
general meeting or a special general meeting must be given to each shareholder entitled to vote at such meeting. This notice requirement
is subject to the ability to hold such meetings on shorter notice if such notice is agreed: (i) in the case of an annual general
meeting by all of the shareholders entitled to attend and vote at such meeting; or (ii) in the case of a special general meeting
by a majority in number of the shareholders entitled to attend and vote at the meeting holding not less than 95% in nominal value
of the shares entitled to vote at such meeting. The quorum required for a general meeting of our shareholders is two or more persons
present in person at the start of the meeting and representing in person or by proxy issued and outstanding common shares.
Access to Books and Records and Dissemination of Information
Members of the general public have a right
to inspect the public documents of a company available at the office of the Registrar of Companies in Bermuda. These documents
include the company’s memorandum of association (or memorandum of continuance), including its objects and powers, and certain
alterations to the memorandum of association (or memorandum of continuance). The shareholders have the additional right to inspect
the bye-laws of the company, minutes of general meetings and the company’s audited financial statements, which must be presented
to the annual general meeting. The register of members of a company is also open to inspection by shareholders and by members of
the general public without charge. The register of members is required to be open for inspection for not less than two hours in
any business day (subject to the ability of a company to close the register of members for not more than thirty days in a year).
A company is required to maintain its share register in Bermuda but may, subject to the provisions of the Companies Act, establish
a branch register outside of Bermuda. A company is required to keep at its registered office a register of directors and officers
that is open for inspection for not less than two hours in any business day by members of the public without charge. A company
is also required to file with the Registrar of Companies in Bermuda a list of its directors to be maintained on a register, which
register will be available for public inspection subject to such conditions as the Registrar may impose and on payment of such
fee as may be prescribed. Bermuda law does not, however, provide a general right for shareholders to inspect or obtain copies of
any other corporate records.
Election and Removal of Directors
Our Bye-laws provide that our board shall
consist of three directors or such greater number as the board may determine. Our board of directors will initially consist of
five directors. Each director shall hold office for such term as the shareholders may determine or, in their absence of such determination,
until the next annual general meeting or until their successors are elected or appointed or their office is otherwise vacated.
Any shareholder or shareholders holding
or representing not less than 5% of the total voting rights wishing to propose for election as a director someone who is not an
existing director or is not proposed by our board must give notice of the intention to propose the person for election. Where a
director is to be elected at an annual general meeting, that notice must be given not less than 90 days nor more than 120 days
before the anniversary of the last annual general meeting prior to the giving of the notice or, in the event the annual general
meeting is called for a date that is not 30 days before or after such anniversary the notice must be given not later than 10 days
following the earlier of the date on which notice of the annual general meeting was posted to members or the date on which public
disclosure of the date of the annual general meeting was made. Where a director is to be elected at a special general meeting,
that notice must be given not later than 10 days following the earlier of the date on which notice of the special general meeting
was posted to members or the date on which public disclosure of the date of the special general meeting was made.
A director may be removed, with cause,
by the shareholders, provided notice of the shareholders meeting convened to remove the director is given to the director. The
notice must contain a statement of the intention to remove the director and must be served on the director not less than fourteen
days before the meeting. The director is entitled to attend the meeting and be heard on the motion for his removal.
Proceedings of Board of Directors
Our Bye-laws provide that our business
is to be managed and conducted by our board of directors. Bermuda law permits individual and corporate directors and there is no
requirement in the Bye-laws or Bermuda law that directors hold any of our shares. There is also no requirement in the Bye-laws
or Bermuda law that our directors must retire at a certain age.
The remuneration of our directors is determined
by our board of directors, and there is no requirement that a specified number or percentage of “independent”
directors must approve any such determination. Our directors may also be paid all travel, hotel and other expenses properly incurred
by them in connection with our business or their duties as directors.
Provided a director discloses a direct
or indirect interest in any contract or arrangement with us as required by Bermuda law, such director is entitled to vote in respect
of any such contract or arrangement in which he or she is interested unless he or she is disqualified from voting by the chairman
of the relevant board meeting.
Indemnification of Directors and Officers
Section 98 of the Companies Act provides
generally that a Bermuda company may indemnify its directors, officers and auditors against any liability which by virtue of any
rule of law would otherwise be imposed on them in respect of any negligence, default, breach of duty or breach of trust, except
in cases where such liability arises from fraud or dishonesty of which such director, officer or auditor may be guilty in relation
to the company. Section 98 further provides that a Bermuda company may indemnify its directors, officers and auditors against any
liability incurred by them in defending any proceedings, whether civil or criminal, in which judgment is awarded in their favor
or in which they are acquitted or granted relief by the Supreme Court of Bermuda pursuant to section 281 of the Companies Act.
Our Bye-laws that provide that we shall
indemnify our officers and directors in respect of their actions and omissions, except in respect of their fraud or dishonesty.
Our Bye-laws provide that the shareholders waive all claims or rights of action that they might have, individually or in right
of the company, against any of the company’s directors or officers for any act or failure to act in the performance of such
director’s or officer’s duties, except in respect of any fraud or dishonesty of such director or officer. Section 98A
of the Companies Act permits us to purchase and maintain insurance for the benefit of any officer or director in respect of any
loss or liability attaching to him in respect of any negligence, default, breach of duty or breach of trust, whether or not we
may otherwise indemnify such officer or director. We have purchased and maintain a directors’ and officers’ liability
policy for such a purpose.
Amendment of Memorandum of Continuance and Bye-laws
Bermuda law provides that the memorandum
of association (or memorandum of continuance) of a company may be amended by a resolution passed at a general meeting of shareholders.
Our Bye-laws provide that no bye-law shall be rescinded, altered or amended, and no new bye-law shall be made, unless it shall
have been approved by a resolution of our board of directors and by a resolution of our shareholders. In the case of certain bye-laws,
such as the Bye-laws relating to election and removal of directors, approval of business combinations and amendment of bye-law
provisions, the required resolutions must include the affirmative vote of at least 66 2∕3% of our directors then in office
and of at least 66 2∕3% percent of the votes attaching to all shares in issue.
Under Bermuda law, the holders of an aggregate
of not less than 20% in par value of a company’s issued share capital or any class thereof have the right to apply to the
Supreme Court of Bermuda for an annulment of any amendment of the memorandum of association (or memorandum of continuance) adopted
by shareholders at any general meeting, other than an amendment which alters or reduces a company’s share capital as provided
in the Companies Act. Where such an application is made, the amendment becomes effective only to the extent that it is confirmed
by the Bermuda court. An application for an annulment of an amendment of the memorandum of association (or memorandum of continuance)
must be made within twenty-one days after the date on which the resolution altering the company’s memorandum of association
(or memorandum of continuance) is passed and may be made on behalf of persons entitled to make the application by one or more of
their number as they may appoint in writing for the purpose. No application may be made by shareholders voting in favor of the
amendment.
Amalgamations, Mergers and Business Combinations
The amalgamation or merger of a Bermuda
company with another company or corporation (other than certain affiliated companies) requires an amalgamation or merger agreement
that is approved by the company’s board of directors and by its shareholders. Unless the company’s bye-laws provide
otherwise, the approval of 75% of the shareholders voting at such meeting is required to approve the amalgamation or merger agreement,
and the quorum for such meeting must be two persons holding or representing more than one-third of the issued shares of the company.
The Bye-laws provide that an amalgamation or a merger (other than with a wholly owned subsidiary or as described below) that has
been approved by the board must only be approved by a majority of the votes cast at a general meeting of the shareholders at which
the quorum shall be two or more persons present in person and representing in person or by proxy issued and outstanding common
voting shares. Any amalgamation or merger or other business combination (as defined in the Bye-laws) not approved by our board
of directors must be approved by the holders of not less than 66 2∕3% of all votes attaching to all shares then in issue
entitling the holder to attend and vote on the resolution.
Under Bermuda law, in the event of an amalgamation
or merger of a Bermuda company with another company or corporation, a shareholder of the Bermuda company who did not vote in favor
of the amalgamation or merger and who is not satisfied that fair value has been offered for such shareholder’s shares may,
within one month of notice of the shareholders meeting, apply to the Supreme Court of Bermuda to appraise the fair value of those
shares.
Our Bye-laws contain provisions regarding
“business combinations” with “interested shareholders”. Pursuant to our Bye-laws, in addition to any other
approval that may be required by applicable law, any business combination with an interested shareholder within a period of three
years after the date of the transaction in which the person became an interested shareholder must be approved by our board and
authorized at an annual or special general meeting by the affirmative vote of at least 66 2∕3% of our issued and outstanding
voting shares that are not owned by the interested shareholder, unless: (i) prior to the time that the shareholder becoming an
interested shareholder, our board of directors approved either the business combination or the transaction that resulted in the
shareholder becoming an interested shareholder; or (ii) upon consummation of the transaction that resulted in the shareholder becoming
an interested shareholder, the interested shareholder owned at least 85% of our issued and outstanding voting shares at the time
the transaction commenced. For purposes of these provisions, “business combinations” include mergers, amalgamations,
consolidations and certain sales, leases, exchanges, mortgages, pledges, transfers and other dispositions of assets, issuances
and transfers of shares and other transactions resulting in a financial benefit to an interested shareholder. An “interested
shareholder” is a person that beneficially owns 15% or more of our issued and outstanding voting shares and any person affiliated
or associated with us that owned 15% or more of our issued and outstanding voting shares at any time three years prior to the relevant
time.
Compulsory Acquisition of Shares Held by Minority Holders
An acquiring party is generally able to
acquire compulsorily the common shares of minority holders in the following ways:
(1) By a procedure under the Companies
Act known as a “scheme of arrangement.” A scheme of arrangement could be effected by obtaining the agreement of the
company and of holders of its shares (or any class of shares), representing in the aggregate a majority in number and at least
75% in value of the shares or class of shares present and voting at a court ordered meeting held to consider the scheme or arrangement.
The scheme of arrangement must then be sanctioned by the Bermuda Supreme Court. If a scheme of arrangement receives all necessary
agreements and sanctions, upon the filing of the court order with the Registrar of Companies in Bermuda, all holders of common
shares could be compelled to sell their shares under the terms of the scheme or arrangement.
(2) If the acquiring party is a company
it may compulsorily acquire all the shares of the target company, by acquiring pursuant to a tender offer 90% of the shares or
class of shares not already owned by, or by a nominee for, the acquiring party (the offeror), or any of its subsidiaries. If an
offeror has, within four months after the making of an offer for all the shares or class of shares not owned by, or by a nominee
for, the offeror, or any of its subsidiaries, obtained the approval of the holders of 90% or more of all the shares to which the
offer relates, the offeror may, at any time within two months beginning with the date on which the approval was obtained, require
by notice any nontendering shareholder to transfer its shares on the same terms as the original offer. In those circumstances,
nontendering shareholders will be compelled to sell their shares unless the Supreme Court of Bermuda (on application made within
a one-month period from the date of the offeror’s notice of its intention to acquire such shares) orders otherwise.
(3) Where one or more parties holds not
less than 95% of the shares or a class of shares of a company, such holder(s) may, pursuant to a notice given to the remaining
shareholders or class of shareholders, acquire the shares of such remaining shareholders or class of shareholders. When this notice
is given, the acquiring party is entitled and bound to acquire the shares of the remaining shareholders on the terms set out in
the notice, unless a remaining shareholder, within one month of receiving such notice, applies to the Supreme Court of Bermuda
for an appraisal of the value of their shares. This provision only applies where the acquiring party offers the same terms to all
holders of shares whose shares are being acquired.
Anti-Takeover Provisions
Two-thirds supermajority shareholder
voting requirement
: Our Bye-laws provide that, except to the extent that a proposal has received the prior approval of the
board, the approval of an amalgamation, merger or consolidation with or into any other person shall require the affirmative vote
of not less than 66 2∕3% of all votes attaching to all shares then in issue entitling the holder to attend and vote on the
resolution.
Amendments to the Bye-laws
: Our
Bye-laws provide that no bye-law may be rescinded, altered or amended and no new bye-law may be made until the same has been approved
by a resolution of the board and by a resolution of the shareholders. In the case of certain bye-laws, such as the Bye-laws relating
to election and removal of directors, approval of business combinations and amendment of bye-law provisions, the required resolutions
must include the affirmative vote of at least 66 2∕3% of our directors then in office and of at least 66 2∕3% percent
of the votes attaching to all shares in issue.
Limitations on the election of directors
:
Our Bye-laws provide that a person may be proposed for election or appointment as a director at a general meeting either by the
board or by one or more shareholders holding our shares which in the aggregate carry not less than 5% of the voting rights in respect
of the election of directors. In addition, unless a person is proposed for election or appointment as a director by the board,
when a person is proposed for appointment or election as a director, written notice of the proposal must be given to us as follows.
Where a director is to be appointed or elected: (1) at an annual general meeting, such notice must be given not less than 90 days
nor more than 120 days before the anniversary of the last annual general meeting prior to the giving of the notice or, in the event
the annual general meeting is called for a date that is not 30 days before or after such anniversary the notice must be given not
later than 10 days following the earlier of the date on which notice of the annual general meeting was posted to shareholders or
the date on which public disclosure of the date of the annual general meeting was made; and (2) at a special general meeting, such
notice must be given not later than 10 days following the earlier of the date on which notice of the special general meeting was
posted to shareholders or the date on which public disclosure of the date of the special general meeting was made.
Shareholder Suits
Class actions and derivative actions are
generally not available to shareholders under Bermuda law. The Bermuda courts, however, would ordinarily be expected to permit
a shareholder to commence an action in the name of a company to remedy a wrong to the company where the act complained of is alleged
to be beyond the corporate power of the company or illegal, or would result in the violation of the company’s memorandum
of association (or memorandum of continuance) or bye-laws. Furthermore, consideration would be given by a Bermuda court to acts
that are alleged to constitute a fraud against the minority shareholders or, for instance, where an act requires the approval of
a greater percentage of the company’s shareholders than that which actually approved it.
When the affairs of a company are being
conducted in a manner which is oppressive or prejudicial to the interests of some part of the shareholders, one or more shareholders
may apply to the Supreme Court of Bermuda, which may make such order as it sees fit, including an order regulating the conduct
of the company’s affairs in the future or ordering the purchase of the shares of any shareholders by other shareholders or
by the company.
Our Bye-laws contain a provision by virtue
of which our shareholders waive any claim or right of action that they have, both individually and on our behalf, against any director
or officer in relation to any action or failure to take action by such director or officer, except in respect of any fraud or dishonesty
of such director or officer. The SEC has advised that the operation of this provision as a waiver of the right to sue for violations
of federal securities laws would likely be unenforceable in U.S. courts.
Capitalization of Profits and Reserves
Pursuant to our Bye-laws, our board of
directors may (i) capitalize any part of the amount of our share premium or other reserve accounts or any amount credited to our
profit and loss account or otherwise available for distribution by applying such sum in paying up unissued shares to be allotted
as fully paid bonus shares pro-rata (except in connection with the conversion of shares) to the shareholders; or (ii) capitalize
any sum standing to the credit of a reserve account or sums otherwise available for dividend or distribution by paying up in full,
partly paid or nil paid shares of those shareholders who would have been entitled to such sums if they were distributed by way
of dividend or distribution.
Exchange controls
We have received consent under the Exchange
Control Act 1972 from the Bermuda Monetary Authority for the issue and transfer of the common shares to and between non-residents
of Bermuda for exchange control purposes provided our shares remain listed on an appointed stock exchange, which includes the Nasdaq
Capital Market. In granting such consent the Bermuda Monetary Authority accepts no responsibility for our financial soundness or
the correctness of any of the statements made or opinions expressed in this prospectus.
Registrar or Transfer Agent
A register of holders of the common shares
will be maintained by Conyers Corporate Services (Bermuda) Limited in Bermuda, and a branch register will be maintained in the
United States by American Stock Transfer & Trust Company, LLC, who will serve as branch registrar and transfer agent.
Untraced Shareholders
Our Bye-laws provide that our board of
directors may forfeit any dividend or other monies payable in respect of any shares which remain unclaimed for six years from the
date when such monies became due for payment. In addition, we are entitled to cease sending dividend warrants and checks by post
or otherwise to a shareholder if such instruments have been returned undelivered to, or left uncashed by, such shareholder on at
least two consecutive occasions or, following one such occasion, reasonable enquires have failed to establish the shareholder’s
new address. This entitlement ceases if the shareholder claims a dividend or cashes a dividend check or a warrant.
Certain Provisions of Bermuda Law
We have been designated by the Bermuda
Monetary Authority as a non-resident for Bermuda exchange control purposes. This designation allows us to engage in transactions
in currencies other than the Bermuda dollar, and there are no restrictions on our ability to transfer funds (other than funds denominated
in Bermuda dollars) in and out of Bermuda or to pay dividends to United States residents who are holders of our common shares.
We have received consent from the Bermuda
Monetary Authority for the issue and free transferability of all of our common shares to and between non-residents of Bermuda for
exchange control purposes, provided our shares remain listed on an appointed stock exchange, which includes the Nasdaq. Approvals
or permissions given by the Bermuda Monetary Authority do not constitute a guarantee by the Bermuda Monetary Authority as to our
performance or creditworthiness. Accordingly, in giving such consent or permissions, the Bermuda Monetary Authority shall not be
liable for the financial soundness, performance or default of our business or for the correctness of any opinions or statements
expressed in this prospectus. Certain issues and transfers of common shares involving persons deemed resident in Bermuda for exchange
control purposes require the specific consent of the Bermuda Monetary Authority.
In accordance with Bermuda law, share certificates
are only issued in the names of companies, partnerships or individuals. In the case of a shareholder acting in a special capacity
(for example as a trustee), certificates may, at the request of the shareholder, record the capacity in which the shareholder is
acting. Notwithstanding such recording of any special capacity, we will not be bound to investigate or see to the execution of
any such trust. We will take no notice of any trust applicable to any of our shares, whether or not we have been notified of such
trust.
Stock Exchange Listing
Our common shares are listed on the Nasdaq
Capital Market under the symbol “EARS.”
The Depository Trust Company
Initial settlement of any common shares
to be issued pursuant to this prospectus will take place through The Depository Trust Company, or DTC, in accordance with its customary
settlement procedures for equity securities. Each person owning common shares held through DTC must rely on the procedures thereof
and on institutions that have accounts therewith to exercise any rights of a holder of the shares.
COMPARISON OF BERMUDA LAW AND DELAWARE
LAW
The Bermuda laws applicable to Bermuda
companies and their shareholders differ from laws applicable to U.S. corporations and their shareholders. The following table summarizes
significant differences in shareholder rights between the provisions of the Companies Act applicable to our company and the Delaware
General Corporation Law applicable to companies incorporated in Delaware and their shareholders. Please note that this is only
a general summary of certain provisions applicable to companies in Delaware. Certain Delaware companies may be permitted to exclude
certain of the provisions summarized below in their charter documents.
DELAWARE CORPORATE LAW
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BERMUDA CORPORATE LAW
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Under the Delaware General Corporation Law, with certain exceptions, a merger, consolidation, sale, lease or transfer of all or substantially all of the assets of a corporation must be approved by the board of directors and a majority of the outstanding shares entitled to vote thereon. A shareholder of a Delaware corporation participating in certain major corporate transactions may, under certain circumstances, be entitled to appraisal rights pursuant to which such shareholder may receive cash in the amount of the fair value of the shares held by such shareholder (as determined by a court) in lieu of the consideration such shareholder would otherwise receive in the transaction. The Delaware General Corporation Law also provides that a parent corporation, by resolution of its board of directors, may merge with any subsidiary, of which it owns at least 90.0% of each class of capital stock without a vote by the shareholders of such subsidiary. Upon any such merger, dissenting shareholders of the subsidiary would have appraisal rights.
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The amalgamation or merger of a Bermuda company with another company or corporation (other than certain affiliated companies) requires the amalgamation or merger agreement to be approved by the company’s board of directors and by its shareholders. Unless the company’s bye-laws provide otherwise, the approval of 75% of the shareholders voting at a general meeting is required to approve the amalgamation or merger agreement, and the quorum for such meeting must be two persons holding or representing more than one-third of the issued shares of the company. Our Bye-laws provide that a merger or an amalgamation (other than with a wholly owned subsidiary or as described below) that has been approved by the board must only be approved by a majority of the votes cast at a general meeting of the shareholders at which the quorum shall be two or more persons present in person and representing in person or by proxy issued and outstanding voting shares.
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Our Bye-laws contain provisions regarding “business combinations” with “interested shareholders”. Pursuant to our Bye-laws, in addition to any other approval that may be required by applicable law, any business combination with an interested shareholder within a period of three years after the date of the transaction in which the person became an interested shareholder must be approved by our board and authorized at an annual or special general meeting by the affirmative vote of at least 66 and 2∕3rds% of our issued and outstanding voting shares that are not owned by the interested shareholder, unless: (i) prior to the time that the shareholder becoming an interested shareholder, our board of directors approved either the business combination or the transaction that resulted in the shareholder becoming an interested shareholder; or (ii) upon consummation of the transaction that resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at least 85% of our issued and outstanding voting shares at the time the transaction commenced. For purposes of these provisions, “business combinations” include mergers, amalgamations, consolidations and certain sales, leases, exchanges, mortgages, pledges, transfers and other dispositions of assets, issuances and transfers of shares and other transactions resulting in a financial benefit to an interested shareholder. An “interested shareholder” is a person that beneficially owns 15% or more of our issued and outstanding voting shares and any person affiliated or associated with us that owned 15% or more of our issued and outstanding voting shares at any time three years prior to the relevant time.
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DELAWARE CORPORATE LAW
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BERMUDA CORPORATE LAW
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Under Bermuda law, in the event of an amalgamation or merger of a Bermuda company with another company or corporation, a shareholder of the Bermuda company who did not vote in favor of the amalgamation or merger and who is not satisfied that fair value has been offered for such shareholder’s shares may, within one month of notice of the shareholders meeting, apply to the Supreme Court of Bermuda to appraise the fair value of those shares. Note that each share of an amalgamating or merging companies carries the right to vote in respect of an amalgamation or merger whether or not is otherwise carries the right to vote.
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Class actions and derivative actions generally are available to shareholders of a Delaware corporation for, among other things, breach of fiduciary duty, corporate waste and actions not taken in accordance with applicable law. In such actions, the court has discretion to permit the winning party to recover attorneys’ fees incurred in connection with such action.
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Class actions and derivative actions are generally not available to shareholders under Bermuda law. The Bermuda courts, however, would ordinarily be expected to permit a shareholder to commence an action in the name of a company to remedy a wrong to the company where the act complained of is alleged to be beyond the corporate power of the company or illegal, or would result in the violation of the company’s memorandum of association or bye-laws. Furthermore, consideration would be given by a Bermuda court to acts that are alleged to constitute a fraud against the minority shareholders or, for instance, where an act requires the approval of a greater percentage of the company’s shareholders than that which actually approved it.
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When the affairs of a company are being conducted in a manner
which is oppressive or prejudicial to the interests of some part of the shareholders, one or more shareholders may apply to the
Supreme Court of Bermuda, which may make such order as it sees fit, including an order regulating the conduct of the company’s
affairs in the future or ordering the purchase of the shares of any shareholders by other shareholders or by the company.
Our Bye-laws contain a provision by virtue of which our shareholders
waive any claim or right of action that they have, both individually and on our behalf, against any director or officer in relation
to any action or failure to take action by such director or officer, except in respect of any fraud or dishonesty of such director
or officer.
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Under the Delaware General Corporation Law, the board of directors has the authority to fix the compensation of directors, unless otherwise restricted by the certificate of incorporation or bylaws.
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Our Bye-laws contain a provision that the board of directors has the power to determine the remuneration, if any, of the directors.
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Unless directors are elected by written consent in lieu of an annual meeting, directors are elected in an annual meeting of stockholders on a date and at a time designated by or in the manner provided in the bylaws. Re-election is possible.
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Our Bye-laws provide that the directors shall hold office for such term as the shareholders may determine or, in their absence of such determination, until the next annual general meeting, or until their successors are elected or appointed or their office is otherwise vacated. Re-election is possible.
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Classified boards are permitted.
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Provision for staggered boards of directors may be included in a company’s bye-laws.
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DELAWARE CORPORATE LAW
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BERMUDA CORPORATE LAW
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The Delaware General Corporation Law provides that a certificate
of incorporation may contain a provision eliminating or limiting the personal liability of directors (but not other controlling
persons) of the corporation for monetary damages for breach of a fiduciary duty as a director, except no provision in the certificate
of incorporation may eliminate or limit the liability of a director for:
● any
breach of a director’s duty of loyalty to the corporation or its shareholders;
● acts
or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
● statutory
liability for unlawful payment of dividends or unlawful stock purchase or redemption; or
● any
transaction from which the director derived an improper personal benefit.
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Section 98 of the Companies Act provides generally that a Bermuda company may indemnify its directors, officers and auditors against any liability which by virtue of any rule of law would otherwise be imposed on them in respect of any negligence, default, breach of duty or breach of trust, except in cases where such liability arises from fraud or dishonesty of which such director, officer or auditor may be guilty in relation to the company. Section 98 further provides that a Bermuda company may indemnify its directors, officers and auditors against any liability incurred by them in defending any proceedings, whether civil or criminal, in which judgment is awarded in their favor or in which they are acquitted or granted relief by the Supreme Court of Bermuda pursuant to section 281 of the Companies Act.
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A Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any proceeding, other than an action by or on behalf of the corporation, because the person is or was a director or officer, against liability incurred in connection with the proceeding if the director or officer acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of the corporation; and the director or officer, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
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Our Bye-laws contain provisions that provide that we shall indemnify our officers and directors in respect of their actions and omissions, except in respect of their fraud or dishonesty. Our Bye-laws provide that the shareholders waive all claims or rights of action that they might have, individually or in right of the company, against any of the company’s directors or officers for any act or failure to act in the performance of such director’s or officer’s duties, except in respect of any fraud or dishonesty of such director or officer. Section 98A of the Companies Act permits us to purchase and maintain insurance for the benefit of any officer or director in respect of any loss or liability attaching to him in respect of any negligence, default, breach of duty or breach of trust, whether or not we may otherwise indemnify such officer or director. We have purchased and maintain a directors’ and officers’ liability policy for such a purpose.
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Unless ordered by a court, any foregoing indemnification is
subject to a determination that the director or officer has met the applicable standard of conduct:
● by
a majority vote of the directors who are not parties to the proceeding, even though less than a quorum;
● by
a committee of directors designated by a majority vote of the eligible directors, even though less than a quorum;
● by
independent legal counsel in a written opinion if there are no eligible directors, or if the eligible directors so direct; or
● by
the shareholders.
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Moreover, a Delaware corporation may not indemnify a director or officer in connection with any proceeding in which the director or officer has been adjudged to be liable to the corporation unless and only to the extent that the court determines that, despite the adjudication of liability but in view of all the circumstances of the case, the director or officer is fairly and reasonably entitled to indemnity for those expenses which the court deems proper.
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DELAWARE CORPORATE LAW
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BERMUDA CORPORATE LAW
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A director of a Delaware corporation has a fiduciary duty to
the corporation and its shareholders. This duty has two components:
● the duty of
care; and
● the duty of
loyalty.
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At common law, members of a board of directors owe a fiduciary duty to the company to act in good faith in their dealings with or on behalf of the company and exercise their powers and fulfill the duties of their office honestly. This duty includes the following elements: (i) a duty to act in good faith in the best interests of the company; (ii) a duty not to make a personal profit from opportunities that arise from the office of director; (iii) a duty to avoid conflicts of interest; and (iv) a duty to exercise powers for the purpose for which such powers were intended.
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The duty of care requires that a director act in good faith, with the care that an ordinarily prudent person would exercise under similar circumstances. Under this duty, a director must inform himself of, and disclose to shareholders, all material information reasonably available regarding a significant transaction. The duty of loyalty requires that a director act in a manner he reasonably believes to be in the best interests of the corporation. He must not use his corporate position for personal gain or advantage. This duty prohibits self-dealing by a director and mandates that the best interest of the corporation and its shareholders take precedence over any interest possessed by a director, officer or controlling shareholder and not shared by the shareholders generally. In general, actions of a director are presumed to have been made on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the corporation. However, this presumption may be rebutted by evidence a breach of one of the fiduciary duties.
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The Companies Act also imposes a duty on directors and officers
of a Bermuda company to: (i) act honestly and in good faith with a view to the best interests of the company; and (ii) exercise
the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
In addition, the Companies Act imposes various duties on directors
and officers of a company with respect to certain matters of management and administration of the company.
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Should such evidence be presented concerning a transaction by a director, a director must prove the procedural fairness of the transaction, and that the transaction was of fair value to the corporation.
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A Delaware corporation may, in its certificate of incorporation, eliminate the right of shareholders to act by written consent.
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The Companies Act provides that shareholders may take action by written consent, expect in respect of the removal of an auditor from office before the expiry of his term or in respect of a resolution passed for the purpose of removing a director before the expiration of his term of office. A resolution in writing is passed when it is signed by the members of the company who at the date of the notice of the resolution represent such majority of votes as would be required if the resolution had been voted on at a meeting or when it is signed by all the members of the company or such other majority of members as may be provided by the bye-laws of the company.
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A shareholder of a Delaware corporation has the right to put any proposal before the annual meeting of shareholders, provided it complies with the notice provisions in the governing documents. A special meeting may be called by the board of directors or any other person authorized to do so in the governing documents, but shareholders may be precluded from calling special meetings.
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Shareholder(s) may, as set forth below and at their own expense (unless the company otherwise resolves), require the company to: (i) give notice to all shareholders entitled to receive notice of the annual general meeting of any resolution that the shareholder(s) may properly move at the next annual general meeting; and/or (ii) circulate to all shareholders entitled to receive notice of any general meeting a statement in respect of any matter referred to in the proposed resolution or any business to be conducted at such general meeting. The number of shareholders necessary for such a requisition is either: (i) any number of shareholders representing not less than 5% of the total voting rights of all shareholders entitled to vote at the meeting to which the requisition relates; or (ii) not less than 100 shareholders.
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DELAWARE CORPORATE LAW
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BERMUDA CORPORATE LAW
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Pursuant to our Bye-laws, any shareholder or shareholders holding or representing not less than 5% of the total voting rights wishing to propose for election as a director someone who is not an existing director or is not proposed by our board must give notice of the intention to propose the person for election in accordance with the Bye-laws.
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Under the Delaware General Corporation Law, cumulative voting for elections of directors is not permitted unless the corporation’s certificate of incorporation provides for it.
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Under Bermuda law, the voting rights of shareholders are regulated by the company’s bye-laws and, in certain circumstances, by the Companies Act. Our Bye-laws provide for a plurality of voting for elections of directors, and cumulative voting for elections of directors is not permitted.
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A Delaware corporation with a classified board may be removed only for cause with the approval of a majority of the outstanding shares entitled to vote, unless the certificate of incorporation provides otherwise.
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Under our Bye-laws, a director may be removed, with cause, by the shareholders, provided notice of the shareholders meeting convened to remove the director is given to the director. The notice must contain a statement of the intention to remove the director and must be served on the director not less than fourteen days before the meeting. The director is entitled to attend the meeting and be heard on the motion for his removal.
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The Delaware General Corporation Law generally prohibits a Delaware corporation from engaging in certain business combinations with an “interested shareholder” for three years following the date that such person becomes an interested shareholder. An interested shareholder generally is a person or group who or which owns or owned 15.0% or more of the corporation’s outstanding voting stock within the past three years.
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There is no similar law in Bermuda.
The Bye-laws contain provisions regarding “business combinations”
with “interested shareholders” which are described above under “mergers and similar arrangements.”
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Unless the board of directors of a Delaware corporation approves the proposal to dissolve, dissolution must be approved by shareholders holding 100.0% of the total voting power of the corporation. Only if the dissolution is initiated by the board of directors may it be approved by a simple majority of the corporation’s outstanding shares. Delaware law allows a Delaware corporation to include in its certificate of incorporation a supermajority voting requirement in connection with dissolutions initiated by the board.
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A Bermuda company may be wound up by the Bermuda court on application
presented by the company itself, its creditors (including contingent or prospective creditors) or its contributories. The Bermuda
court has authority to order winding up in a number of specified circumstances including Where it is, in the opinion of the Bermuda
court, just and equitable to do so.
A Bermuda company limited by shares may be wound up voluntarily
when the shareholders so resolve in general meeting. In the case of a voluntary winding up, the company shall, from the commencement
of the winding up, cease to carry on its business, except so far as may be required for the beneficial winding up thereof.
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A Delaware corporation may vary the rights of a class of shares with the approval of a majority of the outstanding shares of such class, unless the certificate of incorporation provides otherwise.
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Under our Bye-laws, if at any time we have more than one class of shares, the rights attaching to any class, unless otherwise provided for by the terms of issue of the relevant class, may be varied either: (i) with the consent in writing of the holders of 75% of the issued shares of that class; or (ii) with the sanction of a resolution passed by a majority of the votes cast at a general meeting of the relevant class of shareholders at which a quorum consisting of at least two persons holding or representing issued shares of the relevant class is present. Our Bye-laws specify that the creation or issue of shares ranking equally with existing shares will not, unless expressly provided by the terms of issue of existing shares, vary the rights attached to existing shares. In addition, the creation or issue of preference shares ranking prior to our common shares will not be deemed to vary the rights attached to our common shares or, subject to the terms of any other series of preference shares, to vary the rights attached to any other series of preference shares.
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DELAWARE CORPORATE LAW
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BERMUDA CORPORATE LAW
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A Delaware corporation’s governing documents may be amended with the approval of a majority of the outstanding shares entitled to vote, unless the certificate of incorporation provides otherwise.
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A Bermuda company’s memorandum of association and bye-laws may be amended by resolutions of the board of directors and the shareholders, subject to the company’s bye-laws.
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Shareholders of a Delaware corporation, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose, and to obtain copies of list(s) of shareholders and other books and records of the corporation and its subsidiaries, if any, to the extent the books and records of such subsidiaries are available to the corporation.
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Members of the general public have a right to inspect the public documents of a company available at the office of the Registrar of Companies in Bermuda. These documents include the company’s memorandum of association/continuance, including its objects and powers, and certain alterations to the memorandum of association/continuance. The shareholders have the additional right to inspect the bye-laws of the company, minutes of general meetings and the company’s audited financial statements, which must be presented to the annual general meeting. The register of members of a company is also open to inspection by shareholders without charge, and by members of the general public on payment of a fee. The register of members is required to be open for inspection for not less than two hours in any business day (subject to the ability of a company to close the register of members for not more than thirty days in a year). A company is required to maintain its share register in Bermuda but may, subject to the provisions of the Companies Act, establish a branch register outside of Bermuda. A company is required to keep at its registered office a register of directors and officers that is open for inspection for not less than two hours in any business day by members of the public without charge. Bermuda law does not, however, provide a general right for shareholders to inspect or obtain copies of any other corporate records.
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The board of directors may approve a dividend without shareholder
approval. Subject to any restrictions contained in its certificate of incorporation, the board may declare and pay dividends upon
the shares of its capital stock either:
● out of its surplus,
or
● in
case there is no such surplus, out of its net profits for the fiscal year in which the dividend is declared and/or the preceding
fiscal year.
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Under Bermuda law, the board of directors may declare a dividend without shareholder approval, but a company may not declare or pay dividends if there are reasonable grounds for believing that: (i) the company is, or would after the payment be, unable to pay its liabilities as they become due; or (ii) that the realizable value of its assets would thereby be less than its liabilities. Under our Bye-laws, each common share is entitled to dividends if, as and when dividends are declared by our board of directors, subject to any preferred dividend right of the holders of any preference shares.
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Stockholder approval is required to authorize capital stock in excess of that provided in the charter. Directors may issue authorized shares without stockholder approval.
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All creation of shares require the board of directors to adopt a resolution or resolutions, pursuant to authority expressly vested in the board of directors by the provisions of the company’s certificate of incorporation.
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The authorized share capital of a Bermuda company is determined by the company’s shareholders.
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TAXATION
The following summary contains a description
of the material Bermuda, Swiss and U.S. federal income tax consequences of the acquisition, ownership and disposition of common
shares, but it does not purport to be a comprehensive description of all the tax considerations that may be relevant to a decision
to purchase common shares. The summary is based upon the tax laws of Bermuda and regulations thereunder, of Switzerland and regulations
thereunder and on the tax laws of the United States and regulations thereunder as of the date hereof, which are subject to change.
Bermuda Tax Considerations
At the present time, there is no Bermuda
income or profits tax, withholding tax, capital gains tax, capital transfer tax, estate duty or inheritance tax payable by us or
by our shareholders in respect of our shares. We have received an assurance from the Minister of Finance of Bermuda under the Exempted
Undertakings Tax Protection Act 1966 that, in the event that any legislation is enacted in Bermuda imposing any tax computed on
profits or income, or computed on any capital asset, gain or appreciation or any tax in the nature of estate duty or inheritance
tax, such tax shall not, until March 31, 2035, be applicable to us or to any of our operations or to our shares, debentures or
other obligations except insofar as such tax applies to persons ordinarily resident in Bermuda or is payable by us in respect of
real property owned or leased by us in Bermuda.
Swiss Tax Considerations
This summary of material Swiss tax consequences
is based on Swiss law and regulations and the practice of the Swiss tax administration as in effect on the date hereof, all of
which are subject to change (or subject to changes in interpretation), possibly with retroactive effect. The summary does not purport
to take into account the specific circumstances of any particular shareholder or potential investor and does not relate to persons
in the business of buying and selling common shares or other securities. The summary is not intended to be, and should not be interpreted
as, legal or tax advice to any particular potential shareholder/s, and no representation with respect to the tax consequences to
any particular shareholder/s is made.
On September 28, 2018, the Swiss parliament
approved the final draft of the Federal Act on Tax Reform and AHV Financing (“TRAF”). A public vote on the TRAF is
planned to be held on May 19, 2019. The first measures could take place in 2020. Key measures of the reform are, inter alia, the
abolition of the special tax treatment for cantonal status companies, which are no longer accepted internationally. Additionally,
an increase of the partial taxation (
Teilbesteuerung
) for individual shareholders holding at least 10% shares in a company
from 60% to 70% will likely be introduced on federal, cantonal and communal levels. Furthermore, TRAF provides for a repayment
rule in the capital contribution principle according to which repayments of capital contribution reserves are only exempt from
withholding and income tax if the company distributes taxable reserves to the same extent. However, the rule only applies to companies
listed on a Swiss stock exchange. The rule also includes a partial liquidation rule in the event of the repurchase of our own shares.
According to this rule, at least half of the corresponding liquidation surplus must be charged to the capital contribution reserves.
If this rule is not respected, the amount of the capital contribution reserves is adjusted accordingly and the taxable portion
of the liquidation surplus is reduced.
Current and prospective shareholders are
advised to consult their own tax advisers in light of their particular circumstances as to the Swiss tax laws, regulations and
regulatory practices that could be relevant for them in connection with the acquiring, owning and selling or otherwise disposing
of common shares and receiving dividends and similar cash or in-kind distributions on common shares (including dividends on liquidation
proceeds and stock dividends) or distributions on common shares based upon a capital reduction (
Nennwertrückzahlungen
)
or reserves paid out of capital contributions (
Reserven aus Kapitaleinlagen
) and the consequences thereof under the tax
laws, regulations and regulatory practices of Switzerland.
Taxation of Auris Medical Holding
Ltd.
Auris Medical Holding Ltd. is a Swiss tax
resident company, taxed as a holding company in the Canton of Zug. The Company is taxed at a current effective income tax rate
of 7.83% (including direct federal as well as cantonal/communal taxes), whereby a participation relief applies to dividend income
from qualifying subsidiaries, and a current annual capital tax rate of 0.003% which is levied on the net equity of the Company.
Assuming TRAF will be implemented, Auris
Medical Holding Ltd. will lose its holding privilege at the cantonal/communal level as of January 1, 2020.
Taxation of Common Shares: Swiss
Federal Withholding Tax on Dividends and Distributions
Dividend payments and similar cash or in-kind
distributions on the common shares (including dividends on liquidation proceeds and stock dividends) that the Company makes to
shareholders are subject to Swiss federal withholding tax (
Verrechnungssteuer
) at a rate of 35% on the gross amount of the
dividend. The Company is required to withhold the Swiss federal withholding tax from the dividend and remit it to the Swiss Federal
Tax Administration. Distributions based upon a capital reduction (
Nennwertrückzahlungen
) and reserves paid out of capital
contributions (
Reserven aus Kapitaleinlagen
) are not subject to Swiss federal withholding tax.
The Swiss federal withholding tax may also
apply to gains realized upon a repurchase of shares by the Company, on the difference between the repurchase price and the nominal
value of the shares (
Nennwertprinzip
); a different basis of taxation may apply under the capital contribution principle
(
Kapitaleinlageprinzip
). The Swiss federal withholding tax is refundable or creditable in full to a Swiss tax resident corporate
and individual shareholder as well as to a non-Swiss tax resident corporate or individual shareholder who holds the common shares
as part of a trade or business carried on in Switzerland through a permanent establishment or fixed place of business situated
for tax purposes in Switzerland, if such person is the beneficial owner of the distribution and, in the case of a Swiss tax resident
individual who holds the common shares as part of his private assets, duly reports the gross distribution received in his individual
income tax return or, in the case of a person who holds the common shares as part of a trade or business carried on in Switzerland
through a permanent establishment or fixed place of business situated for tax purposes in Switzerland, recognizes the gross dividend
distribution for tax purposes as earnings in the income statements and reports the annual profit in the Swiss income tax return.
If a shareholder who is not a Swiss resident
for tax purposes and does not hold the common shares in connection with the conduct of a trade or business in Switzerland through
a permanent establishment or fixed place of business situated, for tax purposes in Switzerland, receives a distribution from the
Company, the shareholder may be entitled to a full or partial refund or credit of Swiss federal withholding tax incurred on a taxable
distribution if the country in which such shareholder is resident for tax purposes has entered into a treaty for the avoidance
of double taxation with Switzerland and the further prerequisites of the treaty for a refund have been met. Shareholders not resident
in Switzerland should be aware that the procedures for claiming treaty benefits (and the time required for obtaining a refund or
credit) may differ from country to country.
Besides bilateral tax treaties, Switzerland
has entered into an agreement with the European Union on the automatic exchange of information in tax matters (the “AEOI
Agreement”) which provides for, inter alia, full withholding tax exemption of cross-border dividends, interest and royalties
between related entities from EU member states to Switzerland and vice versa if the respective requirements of Article 9 AEOI Agreement
are met.
Individual and Corporate Income Tax
on Dividends
Swiss resident individuals holding the
common shares as part of their private assets who receive dividends and similar distributions (including stock dividends and liquidation
proceeds), which are not repayments of the nominal value (
Nennwertrückzahlungen
) of the common shares or reserves paid
out of capital contributions (
Reserven aus Kapitaleinlagen
) are required to report such payments in their individual income
tax returns and are liable to Swiss federal, cantonal and communal income taxes on any net taxable income for the relevant tax
period. Furthermore, for the purpose of the Direct Federal Tax, dividends, shares in profits, liquidation proceeds and pecuniary
benefits from shares (including bonus shares) are included in the tax base for only 60% of their value (
Teilbesteuerung
),
if the investment amounts to at least 10% of nominal capital of the Company. Most Swiss cantons have introduced similar partial
taxation measures at cantonal and communal levels.
Swiss resident individuals as well as non-Swiss
resident individual taxpayers holding the common shares in connection with the conduct of a trade or business in Switzerland through
a permanent establishment or fixed place of business situated, for tax purposes, in Switzerland, are required to recognize dividends,
distributions based upon a capital reduction (
Nennwertrückzahlungen
) and reserves paid out of capital contributions
(
Reserven aus Kapitaleinlagen
) in their income statements for the relevant tax period and are liable to Swiss federal, cantonal
and communal individual or corporate income taxes, as the case may be, on any net taxable earnings accumulated (including the payment
of dividends) for such period. Furthermore, for the purpose of the Direct Federal Tax, dividends, shares in profits, liquidation
proceeds and pecuniary benefits from shares (including bonus shares) are included in the tax base for only 50% (
Teilbesteuerung
),
if the investment is held in connection with the conduct of a trade or business or qualifies as an opted business asset (
gewillkürtes
Geschäftsvermögen
) according to Swiss tax law and amounts to at least 10% of nominal capital of the Company. All
cantons have introduced similar partial taxation measures at cantonal and communal levels.
Swiss resident corporate taxpayers as well
as non-Swiss resident corporate taxpayers holding the common shares in connection with the conduct of a trade or business through
a permanent establishment or fixed place of business situated, for tax purposes, in Switzerland, are required to recognize dividends,
distributions based upon a capital reduction (
Nennwertrückzahlungen
) and reserves paid out of capital contributions
(
Reserven aus Kapitaleinlagen
) in their income statements for the relevant tax period and are liable to Swiss federal, cantonal
and communal corporate income taxes on any net taxable earnings accumulated for such period. Swiss resident corporate taxpayers
as well as non-Swiss resident corporate taxpayers holding the common shares in connection with the conduct of a trade or business
through a permanent establishment or fixed place of business situated, for tax purposes, in Switzerland may be eligible for participation
relief (
Beteiligungsabzug
) in respect of dividends and distributions based upon a capital reduction (
Nennwertrückzahlungen
)
and reserves paid out of capital contributions (
Reserven aus Kapitaleinlagen
) if the common shares held by them as part
of a Swiss business have an aggregate market value of at least CHF 1 million or represent at least 10% of the nominal capital of
the Company or give entitlement to at least 10% of the profits and reserves of the Company, respectively.
Recipients of dividends and similar distributions
on the common shares (including stock dividends and liquidation proceeds) who neither are residents of Switzerland nor during the
current taxation year have engaged in a trade or business in Switzerland and who are not subject to taxation in Switzerland for
any other reason are not subject to Swiss federal, cantonal or communal individual or corporate income taxes in respect of dividend
payments and similar distributions because of the mere holding of the common shares.
Wealth and Annual Capital Tax on
Holding of Common Shares
Swiss resident individuals holding the
common shares as private assets are required to report their common shares as part of their wealth and will be subject to cantonal
and communal wealth tax to the extent the aggregate taxable net wealth is allocable to Switzerland.
Individuals and corporate taxpayers holding
the common shares in connection with the conduct of a trade or business in Switzerland through a permanent establishment or fixed
place of business situated, for tax purposes, in Switzerland, will be subject to cantonal and communal annual capital tax on the
taxable capital to the extent the aggregate taxable capital is allocable to Switzerland.
Individuals and corporate taxpayers not
resident in Switzerland for tax purposes and not holding the common shares in connection with the conduct of a trade or business
in Switzerland through a permanent establishment or fixed place of business situated, for tax purposes, in Switzerland, are not
subject to wealth or annual capital tax in Switzerland because of the mere holding of the common shares.
Capital Gains on Disposal of Common
Shares
Swiss resident individuals who sell or
otherwise dispose of the common shares realize a tax-free capital gain, or a non-deductible capital loss, as the case may be, provided
that they hold the common shares as part of their private assets. Under certain circumstances, the sale proceeds may be requalified
into taxable investment income (e.g., professional securities dealer, etc.).
Capital gains realized on the sale of the
common shares held by Swiss resident individuals who do not hold the common shares as part of their private assets and Swiss resident
corporate taxpayers, as well as non-Swiss resident individuals and corporate taxpayers holding the common shares in connection
with the conduct of a trade or business in Switzerland through a permanent establishment or fixed place of business situated, for
tax purposes, in Switzerland, will be subject to Swiss federal, cantonal and communal individual or corporate income tax, as the
case may be. This also applies to Swiss resident individuals who, for individual income tax purposes, are deemed to be professional
securities dealers for reasons of, inter alia, frequent dealing and debt-financed purchases. Capital gains realized by resident
individuals who hold the common shares as business assets might be entitled to reductions or partial taxations similar to those
mentioned above for dividends (
Teilbesteuerung
) if certain conditions are met (e.g. holding period of at least one year
and participation of at least 10% of nominal capital of the Company).
Swiss resident corporate taxpayers as well
as non-Swiss resident corporate taxpayers holding the common shares in connection with the conduct of a trade or business, through
a permanent establishment or fixed place of business situated, for tax purposes, in Switzerland, are required to recognize such
capital gain in their income statements for the relevant tax period. Corporate taxpayers may qualify for participation relief on
capital gains (
Beteiligungsabzug
), if the common shares sold during the tax period represent at least 10% of the Company’s
share capital or if the common shares sold give entitlement to at least 10% of the Company’s profit and reserve and were
held for at least one year. The tax relief applies to the difference between the sale proceeds of common shares by the Company
and the initial costs of the participation (
Gestehungskosten
).
Individuals and corporations not resident
in Switzerland for tax purposes and not holding the common shares in connection with the conduct of a trade or business in Switzerland
through a permanent establishment or fixed place of business situated, for tax purposes, in Switzerland, are not subject to Swiss
federal, cantonal and communal individual income or corporate income tax, as the case may be, on capital gains realized on the
sale of the common shares.
Gift and Inheritance Tax
Transfers of common shares may be subject
to cantonal and/or communal inheritance or gift taxes if the deceased or the donor or the recipient were resident in a Canton levying
such taxes and, in international circumstances where residency requirements are satisfied, if the applicable tax treaty were to
allocate the right to tax to Switzerland.
Swiss Issuance Stamp Duty
The Company is subject to paying to the
Swiss Federal Tax Administration a 1% Swiss federal issuance stamp tax (
Emissionsabgabe
) on any increase of the nominal
capital of the Company (with or without issuance of shares) or any other equity contributions received by the Company (regardless
of whether or not any compensation is paid to the shareholder in connection with the contribution). Certain costs incurred in connection
with the issuance of shares (if any) may be deductible. There are several exemptions from issuance stamp tax that may apply under
certain circumstances (e.g., certain intercompany reorganizations).
Swiss Securities Transfer Tax
The purchase or sale (or other financial
transfer) of the common shares, whether by Swiss residents or non-Swiss residents, may be subject to Swiss securities transfer
tax of up to 0.15%, calculated on the purchase price or the proceeds if the purchase or sale occurs through or with a Swiss bank
or other Swiss securities dealer as defined in the Swiss Federal Stamp Duty Act as an intermediary or party to the transaction
unless an exemption applies.
Material U.S. Federal Income Tax Considerations
for U.S. Holders
The following is a description of the material
U.S. federal income tax consequences to the U.S. Holders (defined below) of owning and disposing of common shares, but it does
not purport to be a comprehensive description of all tax considerations that may be relevant to a particular person’s decision
to acquire the common shares. This discussion applies only to a U.S. Holder that holds common shares as capital assets for U.S.
federal income tax purposes. In addition, it does not describe all of the tax consequences that may be relevant in light of a U.S.
Holder’s particular circumstances, including alternative minimum tax consequences, the potential application of the provisions
of the Internal Revenue Code of 1986, as amended, or the Code, known as the Medicare contribution tax and tax consequences applicable
to U.S. Holders subject to special rules, such as:
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certain financial institutions;
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dealers or traders in securities who use a mark-to-market
method of tax accounting;
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persons holding common shares as part of a straddle,
wash sale, or conversion transaction or persons entering into a constructive sale with respect to the common shares;
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persons whose functional currency for U.S. federal
income tax purposes is not the U.S. dollar;
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entities classified as partnerships for U.S. federal
income tax purposes;
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tax-exempt entities, including an “individual
retirement account” or “Roth IRA”;
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persons that own or are deemed to own ten percent
or more of the vote or value of our stock;
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persons who acquired our common shares pursuant to
the exercise of an employee stock option or otherwise as compensation; or
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persons holding shares in connection with a trade
or business conducted outside of the United States.
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If an entity that is classified as a partnership
for U.S. federal income tax purposes holds common shares, the U.S. federal income tax treatment of a partner will generally depend
on the status of the partner and the activities of the partnership. Partnerships holding common shares and partners in such partnerships
should consult their tax advisers as to their particular U.S. federal income tax consequences of holding and disposing of the common
shares.
This discussion is based on the Code, administrative
pronouncements, judicial decisions and final, temporary and proposed Treasury regulations, all as of the date hereof, any of which
is subject to change, possibly with retroactive effect.
A “U.S. Holder” is a beneficial
owner of common shares that is, for U.S. federal income tax purposes:
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an individual who is a citizen or resident of the
United States;
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a corporation, or other entity taxable as a corporation
for U.S. federal income tax purposes, created or organized in or under the laws of the United States, any state therein or the
District of Columbia; or
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an estate the income of which is subject to U.S. federal
income taxation regardless of its source; or
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a trust with respect to which a U.S. court is able
to exercise primary supervision over its administration and one or more U.S. persons have the authority to control all of its
substantial decisions, or that has a valid election in effect to be treated as a U.S. person under applicable U.S. Treasury Regulations.
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U.S. Holders should consult their tax advisers
concerning the U.S. federal, state, local and non-U.S. tax consequences of owning and disposing of common shares in their particular
circumstances.
Passive Foreign Investment Company
Rules
We believe that we were a “passive
foreign investment company,” or PFIC, for U.S. federal income tax purposes for our 2018 taxable year, and we expect to be
a PFIC for our current taxable year and for the foreseeable future. In addition, we may, directly or indirectly, hold equity interests
in other PFICs, or Lower-tier PFICs. In general, a non-U.S. corporation will be considered a PFIC for any taxable year in which
(i) 75% or more of its gross income consists of passive income or (ii) 50% or more of the average quarterly value of its assets
consists of assets that produce, or are held for the production of, passive income. For purposes of the above calculations, a non-U.S.
corporation that directly or indirectly owns at least 25% by value of the shares of another corporation is treated as if it held
its proportionate share of the assets of the other corporation and received directly its proportionate share of the income of the
other corporation. Passive income for this purpose generally includes, among other things, dividends, interest, rents, royalties
and capital gains.
Under attribution rules, assuming we are
a PFIC, U.S. Holders will be deemed to own their proportionate shares of Lower-tier PFICs and will be subject to U.S. federal income
tax according to the rules described in the following paragraphs on (i) certain distributions by a Lower-tier PFIC and (ii) a disposition
of shares of a Lower-tier PFIC, in each case as if the U.S. Holder held such shares directly, even if the U.S. Holder has not received
the proceeds of those distributions or dispositions.
If we are a PFIC for any taxable year during
which a U.S. Holder holds our shares, the U.S. Holder may be subject to certain adverse tax consequences. Unless a U.S. Holder
makes a timely “mark-to-market” election or “qualified electing fund” election, each as discussed below,
gain recognized on a disposition (including, under certain circumstances, a pledge) of common shares by the U.S. Holder, or on
an indirect disposition of shares of a Lower-tier PFIC, will be allocated ratably over the U.S. Holder’s holding period for
the shares. The amounts allocated to the taxable year of disposition and to years before we became a PFIC, if any, will be taxed
as ordinary income. The amounts allocated to each other taxable year will be subject to tax at the highest rate in effect for that
taxable year for individuals or corporations, as appropriate, and an interest charge will be imposed on the tax attributable to
the allocated amounts. Further, to the extent that any distribution received by a U.S. Holder on our common shares (or a distribution
by a Lower-tier PFIC to its shareholder that is deemed to be received by a U.S. Holder) exceeds 125% of the average of the annual
distributions on the shares received during the preceding three years or the U.S. Holder’s holding period, whichever is shorter,
the distribution will be subject to taxation in the same manner as gain, described immediately above.
If we are a PFIC for any year during which
a U.S. Holder holds common shares, we generally will continue to be treated as a PFIC with respect to the U.S. Holder for all succeeding
years during which the U.S. Holder holds common shares, even if we cease to meet the threshold requirements for PFIC status. U.S.
Holders should consult their tax advisers regarding the potential availability of a “deemed sale” election that would
allow them to eliminate this continuing PFIC status under certain circumstances.
If our common shares are “regularly
traded” on a “qualified exchange,” a U.S. Holder may make a mark-to-market election with respect to the shares
that would result in tax treatment different from the general tax treatment for PFICs described above. Our common shares will be
treated as “regularly traded” in any calendar year in which more than a de minimis quantity of the common shares is
traded on a qualified exchange on at least 15 days during each calendar quarter. Nasdaq, on which the common shares are currently
listed, is a qualified exchange for this purpose. U.S. Holders should consult their tax advisers regarding the availability and
advisability of making a mark-to-market election in their particular circumstances and the consequences to them if the common shares
are delisted from Nasdaq (see “Risk Factors”). In particular, U.S. Holders should consider carefully the impact of
a mark-to-market election with respect to their common shares given that we may have Lower-tier PFICs for which a mark-to-market
election may not be available.
If a U.S. Holder makes the mark-to-market
election, the U.S. Holder generally will recognize as ordinary income any excess of the fair market value of the common shares
at the end of each taxable year over their adjusted tax basis, and will recognize an ordinary loss in respect of any excess of
the adjusted tax basis of the common shares over their fair market value at the end of the taxable year (but only to the extent
of the net amount of income previously included as a result of the mark-to-market election). If a U.S. Holder makes the election,
the U.S. Holder’s tax basis in the common shares will be adjusted to reflect the income or loss amounts recognized. Any gain
recognized on a sale or other disposition of common shares in a year in which we are a PFIC will be treated as ordinary income
and any loss will be treated as an ordinary loss (but only to the extent of the net amount of income previously included as a result
of the mark-to-market election). Distributions paid on common shares will be treated as discussed below under “Taxation of
Distributions.” Once made, the election cannot be revoked without the consent of the Internal Revenue Service unless the
common shares cease to be marketable.
Alternatively, a U.S. Holder can make an
election, if we provide the necessary information, to treat us and each Lower-tier PFIC as a qualified electing fund (a “QEF
Election”) in the first taxable year that we (and each Lower-tier PFIC) are treated as a PFIC with respect to the U.S. Holder.
A U.S. Holder must make the QEF Election for each PFIC by attaching a separate properly completed IRS Form 8621 (Information Return
by a Shareholder of a Passive Foreign Investment Company or Qualified Elected Fund) for each PFIC to its timely filed U.S. federal
income tax return. Upon request of a U.S. Holder, we will provide the information necessary for a U.S. Holder to make a QEF Election
with respect to us and will use commercially reasonable efforts to cause each Lower-tier PFIC that we control to provide such information
with respect to such Lower-tier PFIC. However, no assurance can be given that such QEF Election information will be available for
any Lower-tier PFIC and we cannot guarantee that we will continue to provide such determination or information for future years.
If a U.S. Holder makes a QEF Election with
respect to a PFIC, the U.S. Holder will be currently taxable on its pro rata share of the PFIC’s ordinary earnings and net
capital gain (at ordinary income and capital gain rates, respectively) for each taxable year that the entity is classified as a
PFIC. If a U.S. Holder makes a QEF Election with respect to us, any distributions paid by us out of our earnings and profits that
were previously included in the U.S. Holder’s income under the QEF Election will not be taxable to the U.S. Holder. A U.S.
Holder will increase its tax basis in its common shares by an amount equal to any income included under the QEF Election and will
decrease its tax basis by any amount distributed on the common shares that is not included in its income. In addition, a U.S. Holder
will recognize capital gain or loss on the disposition of common shares in an amount equal to the difference between the amount
realized and its adjusted tax basis in the common shares. U.S. Holders should note that if they make QEF Elections with respect
to us and Lower-tier PFICs, they may be required to pay U.S. federal income tax with respect to their common shares for any taxable
year significantly in excess of any cash distributions (which may be zero) received on the shares for such taxable year. U.S. Holders
should consult their tax advisers regarding making QEF Elections in their particular circumstances.
Furthermore, if with respect to a particular
U.S. Holder we are treated as a PFIC for the taxable year in which we paid a dividend or the prior taxable year, the preferential
dividend rate with respect to dividends paid to certain non-corporate U.S. Holders will not apply.
If we are a PFIC for any taxable year during
which a U.S. Holder holds common shares, such U.S. Holder will be required to file an annual information report with respect to
the company and any Lower-tier PFIC, generally with such U.S. Holder’s U.S. Federal income tax return on IRS Form 8621.
U.S. Holders should consult their tax advisers
concerning our PFIC status and the tax considerations relevant to an investment in a PFIC.
Taxation of Distributions
As discussed above under “Dividend
Policy,” we do not currently expect to make distributions on our common shares. In the event that we do make distributions
of cash or other property, subject to the PFIC rules described above, distributions paid on common shares, other than certain pro
rata distributions of common shares, will be treated as dividends to the extent paid out of our current or accumulated earnings
and profits (as determined under U.S. federal income tax principles). Because we may not account for our earnings and profits in
accordance with U.S. federal income tax principles, we expect that distributions generally will be reported to U.S. Holders as
dividends. The U.S. dollar amount of any dividend will be treated as foreign-source dividend income to U.S.
Dividends will not be eligible for the
dividends-received deduction generally available to U.S. corporations under the Code. In light of the discussion in “—
Passive
Foreign Investment Company Rules
” above, non-corporate U.S. Holders should expect that any dividends will not constitute
“qualified dividend income” eligible for preferential tax rates. Dividends will be included in a U.S. Holder’s
income on the date of the U.S. Holder’s receipt of the dividend. The amount of any dividend income paid in a non-U.S. currency
will be the U.S. dollar amount calculated by reference to the exchange rate in effect on the date of receipt, regardless of whether
the payment is in fact converted into U.S. dollars. If the dividend is converted into U.S. dollars on the date of receipt, a U.S.
Holder should not be required to recognize foreign currency gain or loss in respect of the dividend income. A U.S. Holder may have
foreign currency gain or loss if the dividend is converted into U.S. dollars after the date of receipt.
Sale or Other Disposition of Common
Shares
Subject to the PFIC rules described above,
for U.S. federal income tax purposes, gain or loss realized on the sale or other disposition of common shares will be capital gain
or loss, and will be long-term capital gain or loss if the U.S. Holder held the common shares for more than one year. The amount
of the gain or loss will equal the difference between the U.S. Holder’s tax basis in the common shares disposed of and the
amount realized on the disposition, in each case as determined in U.S. dollars. This gain or loss will generally be U.S.-source
gain or loss for foreign tax credit purposes. The deductibility of capital losses is subject to limitations.
Information Reporting and Backup
Withholding
Payments of dividends and sales proceeds
that are made within the United States or through certain U.S.-related financial intermediaries generally are subject to information
reporting, and may be subject to backup withholding, unless (i) the U.S. Holder is a corporation or other exempt recipient or (ii)
in the case of backup withholding, the U.S. Holder provides a correct taxpayer identification number and certifies that it is not
subject to backup withholding.
Backup withholding is not an additional
tax. The amount of any backup withholding from a payment to a U.S. Holder will be allowed as a credit against the holder’s
U.S. federal income tax liability and may entitle it to a refund, provided that the required information is timely furnished to
the IRS.
Certain U.S. Holders who are individuals
and certain entities may be required to report information relating to an interest in our common shares, or non-U.S. financial
accounts through which they are held. U.S. Holders should consult their tax advisers regarding their reporting obligations with
respect to the common shares.
Description
of Debt Securities
The debt securities will be our direct
general obligations. The debt securities will be either senior debt securities or subordinated debt securities and may be secured
or unsecured and may be convertible into other securities, including our common shares. The debt securities will be issued under
one or more separate indentures between us and a financial institution that will act as trustee. Senior debt securities will be
issued under a senior indenture. Subordinated debt securities will be issued under a subordinated indenture. Each of the senior
indenture and the subordinated indenture is referred to individually as an indenture and collectively as the indentures. Each of
the senior debt trustee and the subordinated debt trustee is referred to individually as a trustee and collectively as the trustees.
The material terms of any indenture will be set forth in the applicable prospectus supplement.
We have summarized certain terms and provisions
of the indentures. The summary is not complete. The indentures are subject to and governed by the Trust Indenture Act of 1939,
as amended. The senior indenture and subordinated indenture are substantially identical, except for the provisions relating to
subordination.
Neither indenture will limit the amount
of debt securities that we may issue. We may issue debt securities up to an aggregate principal amount as we may authorize from
time to time. The applicable prospectus supplement will describe the terms of any debt securities being offered. These terms will
include some or all of the following:
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classification
as senior or subordinated debt securities;
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ranking
of the specific series of debt securities relative to other outstanding indebtedness, including subsidiaries’ debt;
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if
the debt securities are subordinated, the aggregate amount of outstanding indebtedness, as of a recent date, that is senior to
the subordinated securities, and any limitation on the issuance of additional senior indebtedness;
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the
designation, aggregate principal amount and authorized denominations;
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the
date or dates on which the principal of the debt securities may be payable;
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the
rate or rates (which may be fixed or variable) per annum at which the debt securities shall bear interest, if any;
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the
date or dates from which such interest shall accrue, on which such interest shall be payable, and on which a record shall be taken
for the determination of holders of the debt securities to whom interest is payable;
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the
place or places where the principal and interest shall be payable;
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our
right, if any, to redeem the debt securities, in whole or in part, at our option and the period or periods within which, the price
or prices at which and any terms and conditions upon which such debt securities may be so redeemed, pursuant to any sinking fund
or otherwise;
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our
obligation, if any, of the Company to redeem, purchase or repay any debt securities pursuant to any mandatory redemption, sinking
fund or other provisions or at the option of a holder of the debt securities;
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if
other than denominations of $2,000 and any higher integral multiple of $1,000, the denominations in which the debt securities
will be issuable;
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if
other than the currency of the United States, the currency or currencies, in which payment of the principal and interest shall
be payable;
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whether
the debt securities will be issued in the form of global securities;
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provisions,
if any, for the defeasance of the debt securities;
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any
U.S. federal income tax consequences; and
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other
specific terms, including any deletions from, modifications of or additions to the events of default or covenants described below
or in the applicable indenture.
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Senior Debt
We will issue under the senior indenture
the debt securities that will constitute part of our senior debt. These senior debt securities will rank equally and
pari passu
with all our other unsecured and unsubordinated debt.
Subordinated Debt
We will issue under the subordinated indenture
the debt securities that will constitute part of our subordinated debt. These subordinated debt securities will be subordinate
and junior in right of payment, to the extent and in the manner set forth in the subordinated indenture, to all our “senior
indebtedness.” “Senior indebtedness” is defined in the subordinated indenture and generally includes obligations
of, or guaranteed by, us for borrowed money, or as evidenced by bonds, debentures, notes or other similar instruments, or in respect
of letters of credit or other similar instruments, or to pay the deferred purchase price of property or services, or as a lessee
under capital leases, or as secured by a lien on any asset of ours. “Senior indebtedness” does not include the subordinated
debt securities or any other obligations specifically designated as being subordinate in right of payment to, or pari passu with,
the subordinated debt securities. In general, the holders of all senior indebtedness are first entitled to receive payment in full
of such senior indebtedness before the holders of any of the subordinated debt securities are entitled to receive a payment on
account of the principal or interest on the indebtedness evidenced by the subordinated debt securities in certain events. These
events include:
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subject
to Swiss law, any insolvency or bankruptcy proceedings, or any receivership, dissolution, winding up, total or partial liquidation,
reorganization or other similar proceedings in respect of us or a substantial part of our property, whether voluntary or involuntary;
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(i)
a default having occurred with respect to the payment of principal or interest on or other monetary amounts due and payable with
respect to any senior indebtedness or (ii) an event of default (other than a default described in clause (i) above) having occurred
with respect to any senior indebtedness that permits the holder or holders of such senior indebtedness to accelerate the maturity
of such senior indebtedness. Such a default or event of default must have continued beyond the period of grace, if any, provided
in respect of such default or event of default, and such a default or event of default shall not have been cured or waived or
shall not have ceased to exist; and ·
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the
principal of, and accrued interest on, any series of the subordinated debt securities having been declared due and payable upon
an event of default pursuant to the subordinated indenture. This declaration must not have been rescinded and annulled as provided
in the subordinated indenture.
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Authentication and Delivery
We will deliver the debt securities to
the trustee for authentication, and the trustee will authenticate and deliver the debt securities upon our written order.
Events of Default
When we use the term “Event of Default”
in the indentures with respect to the debt securities of any series, set forth below are some examples of what we mean:
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default in the payment of the principal on the debt
securities when it becomes due and payable at maturity or otherwise;
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default in the payment of interest on the debt securities
when it becomes due and payable, and such default continues for a period of 30 days;
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default in the performance, or breach, of any covenant
in the indenture (other than defaults specified in clauses (1) or (2) above) and the default or breach continues for a period
of 90 consecutive days or more after written notice to us by the trustee or to us and the trustee by the holders of 25% or more
in aggregate principal amount of the outstanding debt securities of all series affected thereby;
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the occurrence of certain events of bankruptcy, insolvency,
or similar proceedings with respect to us or any substantial part of our property; or
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(5)
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any other Events of Default that may be set forth
in the applicable prospectus supplement.
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If an Event of Default (other than an Event
of Default specified in clause (4) above) with respect to the debt securities of any series then outstanding occurs and is continuing,
then either the trustee or the holders of not less than 25% in principal amount of the securities of all such series then outstanding
in respect of which an Event of Default has occurred may by notice in writing to us declare the entire principal amount of all
debt securities of the affected series, and accrued interest, if any, to be due and payable immediately, and upon any such declaration
the same shall become immediately due and payable.
If an Event of Default described in clause
(4) above occurs and is continuing, then the principal amount of all the debt securities then outstanding and accrued interest
shall be and become due immediately and payable without any declaration, notice or other action by any holder of the debt securities
or the trustee.
The trustee will, within 90 days after
the occurrence of any default actually known to it, give notice of the default to the holders of the debt securities of that series,
unless the default was already cured or waived. Unless there is a default in paying principal or interest when due, the trustee
can withhold giving notice to the holders if it determines in good faith that the withholding of notice is in the interest of the
holders.
Satisfaction, Discharge and Defeasance
We may discharge our obligations under
each indenture, except as to:
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the
rights of registration of transfer and exchange of debt securities, and our right of optional redemption, if any;
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substitution
of mutilated, defaced, destroyed, lost or stolen debt securities;
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the
rights of holders of the debt securities to receive payments of principal and interest;
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the
rights, obligations and immunities of the trustee; and
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the
rights of the holders of the debt securities as beneficiaries with respect to the property deposited with the trustee payable
to them (as described below);
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when:
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all
debt securities of any series issued that have been authenticated and delivered have been delivered by us to the trustee for cancellation;
or
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all
the debt securities of any series issued that have not been delivered by us to the trustee for cancellation have become due and
payable or will become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory
to the trustee for the giving of notice of redemption by such trustee in our name and at our expense, and we have irrevocably
deposited or caused to be deposited with the trustee as trust funds the entire amount sufficient to pay at maturity or upon redemption
all debt securities of such series not delivered to the trustee for cancellation, including principal and interest due or to become
due on or prior to such date of maturity or redemption;
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we
have paid or caused to be paid all other sums then due and payable under such indenture; and ·
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we
have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that all conditions precedent
under such indenture relating to the satisfaction and discharge of such indenture have been complied with.
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In addition, unless the applicable prospectus
supplement and supplemental indenture otherwise provide, we may elect either (i) to have our obligations under each indenture discharged
with respect to the outstanding debt securities of any series (“legal defeasance”) or (ii) to be released from our
obligations under each indenture with respect to certain covenants applicable to the outstanding debt securities of any series
(“covenant defeasance”). Legal defeasance means that we will be deemed to have paid and discharged the entire indebtedness
represented by the outstanding debt securities of such series under such indenture and covenant defeasance means that we will no
longer be required to comply with the obligations with respect to such covenants (and an omission to comply with such obligations
will not constitute a default or event of default).
In order to exercise legal defeasance or
covenant defeasance with respect to outstanding debt securities of any series:
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we
must irrevocably have deposited or caused to be deposited with the trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely to the benefits of the holders of the debt securities
of a series:
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U.S.
government obligations; or ·
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a
combination of money and U.S. government obligations,
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in each case sufficient without reinvestment, in the
written opinion of a nationally recognized firm of independent public accountants, to pay and discharge, and which shall be applied
by the trustee to pay and discharge, all of the principal and interest at due date or maturity or if we have made irrevocable arrangements
satisfactory to the trustee for the giving of notice of redemption by the trustee, the redemption date;
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have delivered to the trustee an opinion of counsel stating that, under then applicable U.S. federal income tax law, the holders
of the debt securities of that series will not recognize gain or loss for U.S. federal income tax purposes as a result of the
defeasance and will be subject to the same federal income tax as would be the case if the defeasance did not occur;
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no
default relating to bankruptcy or insolvency and, in the case of a covenant defeasance, no other default has occurred and is continuing
at any time;
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if
at such time the debt securities of such series are listed on a national securities exchange, we have delivered to the trustee
an opinion of counsel to the effect that the debt securities of such series will not be delisted as a result of such defeasance;
and ·
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have delivered to the trustee an officers’ certificate and an opinion of counsel stating that all conditions precedent with
respect to the defeasance have been complied with.
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We are required to furnish to each trustee
an annual statement as to compliance with all conditions and covenants under the indenture.
Description
of Warrants
We may issue warrants to purchase debt
securities, common shares or other securities. We may issue warrants independently or together with other securities. Warrants
sold with other securities may be attached to or separate from the other securities. We will issue warrants under one or more warrant
agreements between our company and a warrant agent that we will name in the applicable prospectus supplement.
The prospectus supplement relating to any
warrants we offer will include specific terms relating to the offering. These terms will include some or all of the following:
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the title of the warrants;
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the aggregate number of warrants offered;
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the designation, number and terms of the debt securities, common shares or other securities purchasable upon exercise of the warrants and procedures by which those numbers may be adjusted;
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the exercise price of the warrants;
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the dates or periods during which the warrants are exercisable;
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the designation and terms of any securities with which the warrants are issued;
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if the warrants are issued as a unit with another security, the date on and after which the warrants and the other security will be separately transferable;
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if the exercise price is not payable in U.S. dollars, the foreign currency, currency unit or composite currency in which the exercise price is denominated;
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any minimum or maximum amount of warrants that may be exercised at any one time;
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any terms relating to the modification of the warrants;
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any terms, procedures and limitations relating to the transferability, exchange or exercise of the warrants; and
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any other specific terms of the warrants.
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The terms of any warrants to be issued
and a description of the material provisions of the applicable warrant agreement will be set forth in the applicable prospectus
supplement.
Description
of Purchase Contracts
We may issue purchase contracts for the
purchase or sale of debt or equity securities issued by us or securities of third parties, a basket of such securities, an index
or indices or such securities or any combination of the above as specified in the applicable prospectus supplement.
Each purchase contract will entitle the
holder thereof to purchase or sell, and obligate us to sell or purchase, on specified dates, such securities at a specified purchase
price, which may be based on a formula, all as set forth in the applicable prospectus supplement. We may, however, satisfy our
obligations, if any, with respect to any purchase contract by delivering the cash value of such purchase contract or the cash value
of the property otherwise deliverable as set forth in the applicable prospectus supplement. The applicable prospectus supplement
will also specify the methods by which the holders may purchase or sell such securities and any acceleration, cancellation or termination
provisions or other provisions relating to the settlement of a purchase contract.
The purchase contracts may require us to
make periodic payments to the holders thereof or vice versa, which payments may be deferred to the extent set forth in the applicable
prospectus supplement, and those payments may be unsecured or prefunded on some basis. The purchase contracts may require the holders
thereof to secure their obligations in a specified manner to be described in the applicable prospectus supplement. Alternatively,
purchase contracts may require holders to satisfy their obligations thereunder when the purchase contracts are issued. Our obligation
to settle such pre-paid purchase contracts on the relevant settlement date may constitute indebtedness. Accordingly, pre-paid purchase
contracts will be issued under either the senior indenture or the subordinated indenture.
Description
of Units
As specified in the applicable prospectus
supplement, we may issue units consisting of one or more common shares, debt securities, warrants, purchase contracts or any combination
of such securities. The applicable prospectus supplement will describe:
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the terms of the units and of the common shares, debt securities, warrants and/ or purchase contracts comprising the units, including whether and under what circumstances the securities comprising the units may be traded separately;
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a description of the terms of any unit agreement governing the units; and
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a description of the provisions for the payment, settlement, transfer or exchange of the units.
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Forms
of Securities
Each debt security, warrant and unit will
be represented either by a certificate issued in definitive form to a particular investor or by one or more global securities representing
the entire issuance of securities. Certificated securities in definitive form and global securities will be issued in registered
form. Definitive securities name you or your nominee as the owner of the security, and in order to transfer or exchange these securities
or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities
to the trustee, registrar, paying agent or other agent, as applicable. Global securities name a depositary or its nominee as the
owner of the debt securities, warrants or units represented by these global securities. The depositary maintains a computerized
system that will reflect each investor’s beneficial ownership of the securities through an account maintained by the investor
with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Registered Global Securities
We may issue the registered debt securities,
warrants and units in the form of one or more fully registered global securities that will be deposited with a depositary or its
nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases,
one or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the
aggregate principal or face amount of the securities to be represented by registered global securities. Unless and until it is
exchanged in whole for securities in definitive registered form, a registered global security may not be transferred except as
a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of the
depositary or those nominees.
If not described below, any specific terms
of the depositary arrangement with respect to any securities to be represented by a registered global security will be described
in the prospectus supplement relating to those securities. We anticipate that the following provisions will apply to all depositary
arrangements.
Ownership of beneficial interests in a
registered global security will be limited to persons, called participants, that have accounts with the depositary or persons that
may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its
book-entry registration and transfer system, the participants’ accounts with the respective principal or face amounts of
the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution of
the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will
be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with
respect to interests of participants, and on the records of participants, with respect to interests of persons holding through
participants. The laws of some states may require that some purchasers of securities take physical delivery of these securities
in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary, or its nominee,
is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered
the sole owner or holder of the securities represented by the registered global security for all purposes under the applicable
indenture, warrant agreement or unit agreement. Except as described below, owners of beneficial interests in a registered global
security will not be entitled to have the securities represented by the registered global security registered in their names, will
not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners
or holders of the securities under the applicable indenture, warrant agreement or unit agreement. Accordingly, each person owning
a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered global
security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest,
to exercise any rights of a holder under the applicable indenture, warrant agreement or unit agreement. We understand that under
existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global
security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement
or unit agreement, the depositary for the registered global security would authorize the participants holding the relevant beneficial
interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take
that action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal, premium, if any, and interest
payments on debt securities, and any payments to holders with respect to warrants or units, represented by a registered global
security registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be,
as the registered owner of the registered global security. None of Auris Medical Holding Ltd., its affiliates, the trustees, the
warrant agents, the unit agents or any other agent of Auris Medical Holding Ltd., agent of the trustees or agent of the warrant
agents or unit agents will have any responsibility or liability for any aspect of the records relating to payments made on account
of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating
to those beneficial ownership interests.
We expect that the depositary for any of
the securities represented by a registered global security, upon receipt of any payment of principal, premium, interest or other
distribution of underlying securities or other property to holders on that registered global security, will immediately credit
participants’ accounts in amounts proportionate to their respective beneficial interests in that registered global security
as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a
registered global security held through participants will be governed by standing customer instructions and customary practices,
as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,”
and will be the responsibility of those participants.
If the depositary for any of these securities
represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing
agency registered under the Exchange Act, and a successor depositary registered as a clearing agency under the Exchange Act is
not appointed by us within 90 days, we will issue securities in definitive form in exchange for the registered global security
that had been held by the depositary. Any securities issued in definitive form in exchange for a registered global security will
be registered in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent or other relevant
agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions received by the
depositary from participants with respect to ownership of beneficial interests in the registered global security that had been
held by the depositary.
Plan
of Distribution
We may sell the securities in one or more
of the following ways (or in any combination) from time to time:
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●
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through underwriters or dealers;
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directly to a limited number of purchasers or to a single purchaser;
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through agents;
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●
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in “at the market” offerings, within the meaning of the Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market on an exchange or otherwise; or
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●
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through any other method permitted by applicable law and described in the applicable prospectus supplement.
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The prospectus supplement will state the
terms of the offering of the securities, including:
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the name or names of any underwriters, dealers or agents;
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●
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the purchase price of such securities and the proceeds to be received by us, if any;
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any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation;
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●
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any initial public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchanges on which the securities may be listed.
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Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale, the
securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions,
including:
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●
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negotiated transactions;
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●
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at a fixed public offering price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to prevailing market prices; or
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●
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at negotiated prices.
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Unless otherwise stated in a prospectus
supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary closing conditions
and the underwriters will be obligated to purchase all of such series of securities, if any are purchased.
The securities may be sold through agents
from time to time. The prospectus supplement will name any agent involved in the offer or sale of the securities and any commissions
paid to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment.
We may authorize underwriters, dealers
or agents to solicit offers by certain purchasers to purchase the securities at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The contracts
will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any
commissions paid for solicitation of these contracts.
Underwriters and agents may be entitled
under agreements entered into with us to indemnification by us against certain civil liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments which the underwriters or agents may be required to make.
The prospectus supplement may also set
forth whether or not underwriters may over-allot or effect transactions that stabilize, maintain or otherwise affect the market
price of the securities at levels above those that might otherwise prevail in the open market, including, for example, by entering
stabilizing bids, effecting syndicate covering transactions or imposing penalty bids.
Underwriters and agents may be customers
of, engage in transactions with, or perform services for us and our affiliates in the ordinary course of business.
Each series of securities will be a new
issue of securities and will have no established trading market, other than our common shares, which are listed on Nasdaq Capital
Market. Any underwriters to whom securities are sold for public offering and sale may make a market in the securities, but such
underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The securities, other
than our common shares, may or may not be listed on a national securities exchange.
Incorporation
of Certain Information by Reference
The SEC allows us to incorporate by reference
information into this document. This means that we can disclose important information to you by referring you to another document
filed separately with the SEC. The information incorporated by reference is considered to be a part of this document, except for
any information superseded by information that is included directly in this prospectus or incorporated by reference subsequent
to the date of this prospectus.
We incorporate by reference the following
documents or information that we have filed with the SEC
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our Annual Report on Form 20-F for the fiscal year ended December 31, 2018;
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our Report on Form 6-K furnished on March 18, 2019; and
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the description of our common shares contained in our Report on Form 6-K furnished on March 18, 2019, including any subsequent amendment or reports filed for the purpose of updating such description.
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All annual reports we file with the SEC
pursuant to the Exchange Act on Form 20-F after the date of this prospectus and prior to termination or expiration of this registration
statement shall be deemed incorporated by reference into this prospectus and to be part hereof from the date of filing of such
documents. We may incorporate by reference any Form 6-K subsequently submitted to the SEC by identifying in such Form 6-K that
it is being incorporated by reference into this prospectus.
Documents incorporated by reference in
this prospectus are available from us without charge upon written or oral request, excluding any exhibits to those documents that
are not specifically incorporated by reference into those documents. You can obtain documents incorporated by reference in this
document by requesting them from us in writing or at Auris Medical Holding Ltd., Clarendon House, 2 Church Street, Hamilton HM
11, Bermuda or via telephone at (441) 295-5950.
Enforcement
of Civil Liabilities
Auris Medical Holding
Ltd. is a Bermuda exempted company. As a result, the rights of holders of its common shares will be governed by Bermuda law and
its memorandum of continuation and bye-laws. The rights of shareholders under Bermuda law may differ from the rights of shareholders
of companies incorporated in other jurisdictions. Many of our directors and some of the named experts referred to in this prospectus
are not residents of the United States, and a substantial portion of our assets are located outside the United States. As a result,
it may be difficult for investors to effect service of process on those persons in the United States or to enforce in the United
States judgments obtained in U.S. courts against us or those persons based on the civil liability provisions of the U.S. securities
laws. It is doubtful whether courts in Bermuda will enforce judgments obtained in other jurisdictions, including the United States,
against us or our directors or officers under the securities laws of those jurisdictions or entertain actions in Bermuda against
us or our directors or officers under the securities laws of other jurisdictions.
Expenses
The following table sets forth the expenses
(other than underwriting discounts and commissions or agency fees and other items constituting underwriters’ or agents’
compensation, if any) expected to be incurred by us in connection with a possible offering of securities registered under this
registration statement.
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Amount
To Be Paid
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SEC registration fee
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$
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12,122
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FINRA filing fee
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$
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*
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Transfer agent’s fees
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*
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Printing and engraving expenses
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*
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Legal fees and expenses
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*
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Accounting fees and expenses
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*
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Miscellaneous
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*
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Total
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$
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*
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*
|
To
be provided by a prospectus supplement or a Report on Form 6-K that is incorporated by reference into this prospectus.
|
Legal
Matters
The validity of our common shares and certain
other matters of Bermuda law will be passed upon for us by Conyers Dill & Pearman Limited, Bermuda. Certain matters of U.S.
federal and New York State law will be passed upon for us by Lowenstein Sandler LLP, New York, New York.
Experts
The consolidated financial statements incorporated
in this prospectus by reference from Auris Medical Holding Ltd. (formerly Auris Medical Holding AG)’s Annual Report on Form
20-F for the year ended December 31, 2018 have been audited by Deloitte AG, an independent registered public accounting firm, as
stated in their report, which is incorporated herein by reference (which report expresses an unqualified opinion on the financial
statements and includes an explanatory paragraph referring to the retrospective adjustments for the effects of the reverse share
split described in Note 21 to the consolidated financial statements). Such consolidated financial statements have been so incorporated
in reliance upon the report of such firm, given upon their authority as experts in accounting and auditing.
The current address of Deloitte AG is General
Guisan-Quai 38, 8002 Zurich, Switzerland, phone number +(41) 58 279 60 00.
Auris Medical Holding Ltd.
Common Shares
Debt Securities
Warrants
Purchase Contracts
Units
PROSPECTUS
Part II – Information Not Required In Prospectus
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 98 of the Companies Act provides
generally that a Bermuda company may indemnify its directors, officers and auditors against any liability which by virtue of any
rule of law would otherwise be imposed on them in respect of any negligence, default, breach of duty or breach of trust, except
in cases where such liability arises from fraud or dishonesty of which such director, officer or auditor may be guilty in relation
to the company. Section 98 further provides that a Bermuda company may indemnify its directors, officers and auditors against any
liability incurred by them in defending any proceedings, whether civil or criminal, in which judgment is awarded in their favour
or in which they are acquitted or granted relief by the Supreme Court of Bermuda pursuant to section 281 of the Companies Act.
We have adopted provisions in our bye-laws
that provide that we shall indemnify our officers and directors in respect of their actions and omissions, except in respect of
their fraud or dishonesty. Our bye-laws provide that the shareholders waive all claims or rights of action that they might have,
individually or in right of the company, against any of the company’s directors or officers for any act or failure to act
in the performance of such director’s or officer’s duties, except in respect of any fraud or dishonesty of such director
or officer. Section 98A of the Companies Act permits us to purchase and maintain insurance for the benefit of any officer or director
in respect of any loss or liability attaching to him in respect of any negligence, default, breach of duty or breach of trust,
whether or not we may otherwise indemnify such officer or director.
We have entered into indemnification agreements
with each of the members of our board of directors and executive officers.
Insofar as indemnification for liabilities
arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons of the Company,
the Company 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 of 1933, as amended, and is, therefore, unenforceable.
EXHIBITS
The following documents are filed as part
of this registration statement:
* To be filed, if necessary, by amendment.
UNDERTAKINGS
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(a)
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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;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the 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 the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) (§ 230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
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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 the registration statement;
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Provided
,
however
, That:
|
(A)
|
Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8 (§ 239.16b of this chapter), and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration statement; and
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(B)
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Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 (§ 239.13 of this chapter) or Form F-3 (§ 239.33 of this chapter) and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) (§ 230.424(b) of this chapter) that is part of the registration statement.
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(C)
|
Provided further
,
however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is for an offering of asset-backed securities on Form S-1 (§ 239.11 of this chapter) or Form S-3 (§ 239.13 of this chapter), and the information required to be included in a post-effective amendment is provided pursuant to Item 1100(c) of Regulation AB (§ 229.1100(c)).
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, 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 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 (a)(4) and
other information necessary to ensure that all other information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3 (§ 239.33 of this
chapter), a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3)
of the Act or § 210.3-19 of this chapter if such financial statements and information are contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Form F-3.
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(5)
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That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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(A)
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be 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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(B)
|
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 of 1933 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 that 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; or
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(6)
|
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
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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 relating to the offering required to be filed pursuant to Rule 424;
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(ii)
|
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
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(iii)
|
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
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(iv)
|
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(b)
|
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement 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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(c)
|
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, 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 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 Act and will be governed by the final adjudication of such issue.
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|
(d)
|
The undersigned registrant hereby undertakes that:
|
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(1)
|
For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
|
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(2)
|
For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
|
(e)
|
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act.
|
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets 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 Hamilton, Bermuda on March 20, 2019.
|
Auris Medical Holding Ltd.
|
|
|
|
By:
|
/s/ Thomas Meyer
|
|
|
Name:
|
Thomas Meyer
|
|
|
Title:
|
Chief Executive Officer
|
Pursuant to the requirements of the
Securities Act of 1933, as amended, this registration statement has been signed by the following persons on March 20, 2019 in
the capacities:
Name
|
|
Title
|
|
|
|
/s/ Thomas Meyer
|
|
|
Thomas Meyer
|
|
Chief Executive Officer and Director
(principal executive officer)
|
|
|
|
*
|
|
|
Hernan Levett
|
|
Chief Financial Officer
(principal financial officer and principal accounting officer)
|
|
|
|
*
|
|
|
Armando Anido
|
|
Director
|
|
|
|
*
|
|
|
Alain Munoz
|
|
Director
|
|
|
|
*
|
|
|
Calvin Roberts
|
|
Director
|
|
|
|
*
|
|
|
Mats Peter Blom
|
|
Director
|
|
|
|
*
|
|
|
Colleen A. DeVries
|
|
SVP of Cogency Global Inc.
Authorized Representative in the
United States
|
*By:
|
/s/ Thomas Meyer
|
|
Name:
|
Thomas Meyer
|
|
Title:
|
Attorney-in-Fact
|
|
EXHIBIT INDEX
The following documents are filed as part
of this registration statement:
* To be filed, if necessary, by as an exhibit to a post-effective
amendment to this registration statement or as an exhibit to a report filed under the Securities Exchange Act of 1934, as amended,
and incorporated herein by reference.
II-7
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