AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL
26, 2022
Registration No. 333-240984
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Midatech Pharma PLC
(Exact name of registrant as specified in its charter)
England and Wales |
2834 |
Not Applicable |
(State or Other Jurisdiction of
Incorporation or Organization)
|
(Primary Standard Industrial
Classification Code Number)
|
(IRS Employer
Identification No.)
|
1 Caspian Point,
Caspian Way,
Cardiff, CF10 4DQ, United Kingdom
Tel: +44 29 2048 0180
(Address, including zip code, and telephone number, including
area code, of registrant’s principal executive offices)
Donald J. Puglisi
Puglisi & Associates
850 Library Ave., Suite 204
Newark, Delaware 19711
Tel: (302) 738-6680
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of communications to:
Jason S. McCaffrey
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
(617) 542-6000
Approximate date of commencement of proposed sale to the
public: As soon as practicable after the effective date of this
Registration Statement.
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. x
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) 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 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 post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earliest
effective registration statement for the same
offering. ¨
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of
1933.
Emerging growth company ¨
If an emerging growth company that prepares its financial
statements in accordance with U.S. GAAP, indicate by check mark if
the registrant has elected not to use the extended transition
period for complying with any new or revised financial accounting
standard provided pursuant to Section 7(a)(2)(B) of the Securities
Act. ¨
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. 2 (this “Post-Effective Amendment
No. 2”) to the Registration Statement on Form F-1 (File No.
333-240984) (the “Registration Statement”) is being filed pursuant
to our undertaking in the Registration Statement to update and
supplement information contained in the Registration Statement, as
originally filed on August 5, 2020, and as amended on August 11,
2020, and declared effective by the Securities and Exchange
Commission (the “SEC”) on August 13, 2020, and as further amended
by Post-Effective Amendment No. 1, as filed with the SEC on May 27,
2021, and declared effective by the SEC on June 4, 2021, to
incorporate by reference the Company’s Annual Report on Form 20-F
for the year ended December 31, 2021, as filed with the SEC on
April 26, 2022. The Registration Statement originally covered a
resale (the “Offering”) by the selling shareholders identified in
this prospectus, of up to an aggregate of 12,695,456 ordinary
shares, nominal value 0.1p per share, of Midatech Pharma PLC,
represented by 2,539,091 American Depositary Shares (the
“Depositary Shares”) consisting of (i) 3,000,000 ordinary shares
represented by 600,000 Depositary Shares issuable upon the exercise
of warrants originally issued in a private placement in October
2019 (the “October Private Placement”), (ii) 150,000 ordinary
shares represented by 30,000 Depositary Shares issuable upon the
exercise of placement agent warrants originally issued in
connection with the October Private Placement, (iii) 9,090,910
ordinary shares represented by 1,818,182 Depositary Shares issuable
upon the exercise of warrants originally issued in a private
placement in May 2020 (the “May Private Placement”), and (iv)
454,546 ordinary shares represented by 90,909 Depositary Shares
issuable upon the exercise of placement agent warrants originally
issued in connection with the May Private Placement. The
information included in this filing updates the Registration
Statement and the prospectus contained therein.
No additional securities are being registered under this
Post-Effective Amendment No. 2. Accordingly, this Post-Effective
Amendment No. 2 concerns only the offer and sale of ordinary shares
represented by Depositary Shares issuable from time to time upon
exercise of such warrants that remain unexercised.
All applicable registration fees were paid at the time of the
original filing of the Registration Statement.
The information in this preliminary prospectus is not complete
and may be changed. Neither we nor any selling shareholders may
sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This
preliminary prospectus is not an offer to sell these securities and
it is not soliciting an offer to buy these securities in any state
or jurisdiction where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS—SUBJECT TO COMPLETION, DATED APRIL 26,
2022

MIDATECH PHARMA PLC
9,888,640 Ordinary Shares Representing 1,977,728 American
Depositary Shares
This prospectus relates to the resale, by the selling shareholders
identified in this prospectus, of up to an aggregate of 9,888,640
ordinary shares, nominal value 0.1p per share, or Ordinary Shares,
of Midatech Pharma PLC, or the Company, represented by 1,977,728
American Depositary Shares, or Depositary Shares, consisting of (1)
3,000,000 Ordinary Shares represented by 600,000 Depositary Shares,
issuable upon the exercise of warrants issued in a private
placement in October 2019, or the October Private Placement, (2)
150,000 Ordinary Shares represented by 30,000 Depositary Shares
issuable upon the exercise of placement agent warrants issued in
connection with the October Private Placement, (3) 6,590,910
Ordinary Shares represented by 1,318,182 Depositary Shares,
issuable upon the exercise of warrants issued in a private
placement in May 2020, or the May Private Placement and
collectively with the October Private Placement, the Private
Placements, and (4) 147,730 Ordinary Shares represented by 29,546
Depositary Shares issuable upon the exercise of placement agent
warrants issued in connection with the October Private
Placement.
The selling shareholders are identified in the table commencing on
page 17. Each Depositary Share represents five Ordinary Shares. No
Depositary Shares are being registered hereunder for sale by us. We
will not receive any proceeds from the sale of the Depositary
Shares by the selling shareholders. All net proceeds from the sale
of the Ordinary Shares represented by Depositary Shares covered by
this prospectus will go to the selling shareholders. However, we
may receive the proceeds from any exercise of warrants in certain
circumstances. See “Use of Proceeds.”
The selling shareholders may sell all or a portion of the Ordinary
Shares represented by Depositary Shares from time to time in market
transactions through any market on which our Depositary Shares are
then traded, in negotiated transactions or otherwise, and at prices
and on terms that will be determined by the then prevailing market
price or at negotiated prices directly or through a broker or
brokers, who may act as agent or as principal or by a combination
of such methods of sale. We will bear all of the expenses incurred
in connection with the registration of these shares. The selling
shareholders will pay any underwriting discounts and selling
commissions and/or similar charges incurred in connection with the
sale of the shares. See “Plan of Distribution.”
Our Depositary Shares are listed on the NASDAQ Capital Market under
the symbol “MTP.” The last reported closing price of our Depositary
Shares on the NASDAQ Capital Market on April 25, 2022 was $0.8581.
Our Ordinary Shares are admitted for trading on AIM, a market
operated by the London Stock Exchange plc, or AIM, under the
listing code “MTPH.” The last reported closing price of our
Ordinary Shares on AIM on April 25, 2022 was £0.135.
Investing in our securities involves risks. See “Risk Factors”
beginning on page 12 of this prospectus and in the documents
incorporated by reference in this prospectus for a discussion of
the factors you should carefully consider before deciding to
purchase these securities.
Neither the 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.
___________________
The date of this prospectus is
,
2022
TABLE
OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed
with the Securities and Exchange Commission, or SEC. As permitted
by the rules and regulations of the SEC, the registration statement
filed by us includes additional information not contained in this
prospectus. You may read the registration statement and the other
reports we file with the SEC at the SEC’s website or its offices
described below under the heading “Where You Can Find More
Information”.
You should rely only on the information contained in this
prospectus. We have not authorized any person to provide you with
information different from that contained in this prospectus. This
prospectus is not an offer to sell, nor is it seeking an offer to
buy, these securities in any state where the offer or sale is not
permitted. The information in this prospectus speaks only as of the
date of this prospectus unless the information specifically
indicates that another date applies, regardless of the time of
delivery of this prospectus or of any sale of the securities
offered hereby. Our business, financial condition, results of
operations, and prospects may have changed since that date. We do
not take any responsibility for, nor do we provide any assurance as
to the reliability of, any information other than the information
in this prospectus. Neither the delivery of this prospectus nor the
sale of the Depositary Shares means that information contained in
this prospectus is correct after the date of this prospectus. You
should not consider this prospectus to be an offer or solicitation
relating to the securities in any jurisdiction in which such an
offer or solicitation relating to the securities is not authorized.
Furthermore, you should not consider this prospectus to be an offer
or solicitation relating to the securities if the person making the
offer or solicitation is not qualified to do so, or if it is
unlawful for you to receive such an offer or solicitation.
Unless the context specifically indicates otherwise, references in
this prospectus supplement to “Midatech Pharma PLC,” “Midatech,”
“the Company,” “we,” “our,” “ours,” “us,” “the Group,” or similar
terms refer to Midatech Pharma PLC and its consolidated
subsidiaries.
We have not taken any action to permit a public offering of the
Depositary Shares outside the United States or to permit the
possession or distribution of this prospectus outside the United
States. Persons outside the United States who come into possession
of this prospectus must inform themselves about and observe any
restrictions relating to the offering of the Depositary Shares and
the distribution of this prospectus outside of the United
States.
PRESENTATION OF FINANCIAL AND
OTHER INFORMATION
Our financial statements are prepared in accordance with
International Financial Reporting Standards, as issued by the
International Accounting Standards Board and adopted by the
European Union. We have made rounding adjustments to some of the
figures included in this prospectus. Accordingly, numerical figures
shown as totals in some tables may not be an arithmetic aggregation
of the figures that preceded them.
We prepare our consolidated financial statements in British pounds
sterling. Except as otherwise stated, all monetary amounts in this
prospectus are presented in British pounds sterling.
In this prospectus, unless otherwise specified or the context
otherwise requires:
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“$” and “U.S. dollar” each
refer to the United States dollar (or units thereof); and |
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“£,” “pence” and “p” each refer to
the British pound sterling (or units thereof). |
On March 3, 2020, following shareholder approval, we effected a
one-for-20 reverse split of our Ordinary Shares and our Ordinary
Shares began trading on AIM, a market operated by the London Stock
Exchange plc, or AIM, on a split-adjusted basis as of such date. No
fractional shares were issued in connection with the reverse stock
split. As a result of the reverse stock split, the number of issued
and outstanding Ordinary Shares was reduced to 23,494,981 shares as
of March 3, 2020.
Concurrently with the reverse split, and in an effort to bring our
Depositary Share price into compliance with the NASDAQ Stock Market
LLC’s, or NASDAQ, minimum bid price per share requirement, on March
3, 2020 we effected a ratio change in the number of Ordinary Shares
represented by our Depositary Shares from 20 Ordinary Shares per
Depositary Share to five Ordinary Shares per Depositary Share,
reducing the number of outstanding Depositary Shares, as of the
close of business on March 3, 2020 to 988,656.
The change in the number of Ordinary Shares resulting from the
reverse stock split and change in the number of Depositary Shares
resulting from the change in ratio has been applied retroactively
to all share and per share amounts presented in this prospectus, to
the extent applicable.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated herein by
reference includes “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. All
statements contained or incorporated by reference herein, including
statements regarding our strategy, future operations, future
financial position, future revenue, projected costs, prospects,
plans, objectives of management and expected market growth, other
than statements of historical facts, are forward-looking
statements. The words “anticipate,” “believe,” “estimate,”
“expect,” “intend,” “may,” “plan,” “predict,” “project,”
“potential,” “will,” “would,” “could,” “should,” “continue,” and
similar expressions are intended to identify forward-looking
statements, although not all forward-looking statements contain
these identifying words.
These forward-looking statements are based on currently available
competitive, financial and economic data together with management’s
views and assumptions regarding future events and business
performance as of the time the statements are made and are subject
to risks and uncertainties. We wish to caution you that there are
some known and unknown factors that could cause actual results to
differ materially from any future results, performance or
achievements expressed or implied by such forward-looking
statements, including but not limited to risks related to:
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our requirement for additional
financing and our ability to continue as a going concern; |
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our estimates regarding losses,
expenses, future revenues, and capital requirements; |
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our ability to successfully
develop, test, and partner with a licensee to manufacture or
commercialize products for conditions using our technology
platforms; |
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the successful commercialization
and manufacturing of any future product candidate we may
commercialize or license; |
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the success and timing of preclinical studies and clinical
trials, if any; |
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shifts in our business and commercial strategy; |
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the filing and timing of regulatory filings, including
investigational new drug applications, with respect to any of our
products and the receipt of any regulatory approvals; |
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the anticipated medical benefits of
our products; |
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the difficulties in obtaining and
maintaining regulatory approval of our product candidates, and the
labeling under any approval we may obtain; |
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the success and timing of the
potential commercial development of our product candidates and any
product candidates we may acquire in the future, including
MTX110; |
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our plans and ability to develop
and commercialize our product candidates and any product candidates
we may acquire in the future; |
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the ability to manufacture products
in third-party facilities; |
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the rate and degree of market
acceptance of any of our product candidates; |
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the successful development of our
commercialization capabilities, including our internal sales and
marketing capabilities; |
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obtaining and maintaining
intellectual property protection for our product candidates and our
proprietary technology; |
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the success of competing therapies
and products that are or become available; |
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the success of any future strategic
acquisitions; |
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cybersecurity and other cyber
incidents; |
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the impact of government laws and
regulations; |
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regulatory, economic and political
developments in the United Kingdom, the European Union, the United
States and other foreign countries, including any impact from the
United Kingdom leaving the European Union; |
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the difficulties doing business
internationally, including any risks related to the novel strain of
coronavirus, COVID-19; |
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the ownership of our Ordinary
Shares and Depositary Shares; |
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our ability to meet the listing
criteria required to remain listed on the NASDAQ Capital
Market; |
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our status as a foreign private issuer; |
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our ability to recruit or retain key scientific or management
personnel or to retain our senior management; |
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the impact and costs and expenses
of any litigation we may be subject to now or in the future; |
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the performance of third parties,
including joint venture partners, our collaborators, third-party
suppliers and parties to our licensing agreements; and |
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other risks and uncertainties, including those described in
“Risk Factors” in our Annual Report on Form 20-F for the
year ended December 31, 2021, or the 2021 Annual Report, or in this
prospectus. |
We may not actually achieve the plans, intentions or expectations
disclosed in our forward-looking statements, and you should not
place undue reliance on our forward-looking statements. Actual
results or events could differ materially from the plans,
intentions and expectations disclosed in the forward-looking
statements we make. You are cautioned that these forward-looking
statements are only predictions and are subject to risks,
uncertainties and assumptions that are referenced in the section
entitled “Risk Factors” in our 2021 Annual Report or in this
prospectus. You should also carefully review the risk factors and
cautionary statements described in the other documents we file from
time to time with the SEC, specifically our most recent 2021 Annual
Report and our Reports on Form 6-K. We undertake no obligation to
revise or update any forward-looking statements, except to the
extent required by law.
PROSPECTUS SUMMARY
The following summary of our business highlights some of the
information contained elsewhere in or incorporated by reference
into this prospectus. Because this is only a summary, however, it
does not contain all of the information that may be important to
you. You should carefully read this prospectus, including the
documents incorporated by reference, which are described under
“Where You Can Find Additional Information” and “Incorporation of
Certain Information by Reference” in this prospectus. You should
also carefully consider the matters discussed in the section in
this prospectus entitled “Risk Factors.”
Overview
We are focused on the
research and development of medicines which we believe would
benefit from improved bio-delivery and/or bio-distribution using
our using our proprietary platform drug delivery
technologies:
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Our Q-SpheraTM platform: Our
disruptive polymer microsphere microtechnology is used for
sustained delivery to prolong and control the release of
therapeutics over an extended period of time, from weeks to
months. |
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Our MidaSolveTM platform: Our
innovative oligosaccharide nanotechnology is used to solubilize
drugs so that they can be administered in liquid form directly and
locally into tumors. |
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MidaCoreTM platform: Our
leading-edge gold nanoparticle, or GNP, nanotechnology is used for
targeting sites of disease by using either chemotherapeutic agents
or immunotherapeutic agents. |
Recent Developments
Strategic Review
In March 2020, we reviewed the remaining costs necessary to
complete the Phase III clinical trial of MTD201, which uses our
sustained release platform, Q-Sphera, to formulate a long acting
dose of octreotide for the treatment of acromegaly and
neuroendocrine tumors, as well as the manufacturing scale-up of our
MTD201 manufacturing capabilities at our Bilbao, Spain facilities.
We believed the remaining costs to be in the order of $30 million
(of which $8.5 million had been raised in loans from the Spanish
government, as discussed in more detail herein). Given the state of
the financial markets at that time, and our cash runway, we
determined we were unlikely to conclude a license transaction or
raise sufficient funds to continue the required remaining
investment in MTD201 in a timely manner. The Board of Directors
made the determination to terminate the further in-house
development of MTD201 and, on March 31, 2020, announced a strategic
review of our operations.
In connection with the decision to terminate the MTD201 program, we
closed our MTD201-dedicated manufacturing facilities in Bilbao,
Spain. We have made redundant all of our Midatech Pharma España
S.L., or Midatech Spain, employees pursuant to a consultation
process as required by Spanish law. We also made redundant five
employees located in the United Kingdom in our clinical research
and administrative departments.
Following these changes, our strategy has shifted to deploying our
proprietary drug delivery technologies to formulate a compelling
portfolio of novel first-in-class sustained release formulations of
products with significant commercial potential for licensing to
pharmaceutical company partners at a proof-of-concept stage. Other
than with respect to MTX110, for which pilot clinical trials are
required to demonstrate proof of concept due to the fact we are
repurposing an existing medicine, we have no plans to undertake
additional clinical trials in humans unless a license partner or
grant funding has been secured. MTX110 is a direct delivery
treatment for diffuse intrinsic pontine glioma, or DIPG, an
ultra-rare brain cancer suffered by children, using our MidaSolve
technology for direct delivery. For more information regarding our
strategy, see “—Our Strategy.”
Additionally, on March 31, 2020, Dr. Craig Cook, our then-Chief
Executive Officer, resigned from his position and as a director of
Midatech, effective immediately. He was succeeded by Mr. Stephen
Stamp, our then-current Chief Financial Officer, who now serves in
the combined roles of Chief Executive Officer and Chief Financial
Officer. Further, in line with our streamlined strategy and
operations, each of Dr. Huaizheng Peng and Mr. Frederic Duchesne
resigned from the Board of Directors, effective March 31, 2020.
On January 26, 2021, we announced, among other things, that the
strategic review had been completed and that we were now focused on
executing our realigned strategy of deploying our technologies to
develop more early stage products and seeking licensing partners at
proof of concept stage.
Secura License Agreement
We entered into a License Agreement, executed on or about June 6,
2017, by and between Midatech Limited and Novartis AG, or Novartis,
which Novartis subsequently transferred to Secura Bio, Inc., or
Secura Bio, and the agreement, the Secura License Agreement.
Pursuant to the Secura License Agreement, Midatech Limited was
granted a non-exclusive worldwide, sublicenseable license to
certain patents of panobinostat, the active pharmaceutical
ingredient of our development product MTX110. Midatech Limited’s
rights are limited to the treatment of brain cancer in humans,
administered by convection-enhanced delivery. We received a letter
dated June 1, 2020, sent on behalf of Secura Bio purporting to
terminate the Secura License Agreement “effective immediately,” the
reason specified being that we were proposing to liquidate the
Company. Despite our assurances to the contrary, and despite our
repeated requests that Secura Bio withdraw its termination, Secura
Bio reaffirmed the termination and reasons therefor and the
agreement was thus terminated. We received a further letter sent on
behalf of Secura Bio dated May 21, 2021 purporting to terminate the
Secura License Agreement a second time for alleged material
breaches of the agreement, and demanding a non-exclusive, fully
paid-up, royalty-free, perpetual license to Midatech’s MTX110
intellectual property. This demand was refused based upon, among
other things, Secura Bio’s previous termination of the Secura
License Agreement in 2020.
We view MTX110 as an important asset and currently have two ongoing
clinical trials for MTX110 and intend to commence two further
clinical trials as part of our MTX110 clinical program. We continue
to enjoy freedom to use panobinostat for research purposes and we
plan to continue to pursue development of MTX110. We believe that
the relevant Secura Bio patents may delay a launch of MTX110 for
use in patients with DIPG, however we do not anticipate it would
have any impact on launching MTX110 for use in patients with
glioblastoma multiforme. If we are unable to launch a product
candidate until the patent expires, there could be a material
adverse effect on our business, financial condition and results of
operations.
Impact of COVID-19
With the global spread of the ongoing COVID-19 pandemic, we
established a COVID-19 task force in mid-March 2020 with the
objectives of safeguarding the health and wellbeing of our staff
members and monitoring the impact on our vendors and collaborators.
Beginning in mid-March 2020, our employees primarily worked from
their homes. Since that time, we have formally implemented a
work-from-home policy for our employees, with exceptions being made
for essential laboratory personnel. To the extent possible, we have
reorganized the layout of our offices and laboratories in Cardiff,
Wales to conform to social distancing policies and allow laboratory
employees to safely return to the workplace, if allowed by their
local government.
Our expectation is that the COVID-19 pandemic is likely to
negatively affect businesses globally for an indeterminate period
and that, once the pandemic is under control, recovery to
normalization will not be instantaneous. Accordingly, we believe
governmental limitations on travel will certainly cause delays to
timelines. These delays may be the result of a limitation on the
number of staff permitted in our facilities at any one time or
delays in our vendor’s supply chains. In addition, delays have
occurred in the recruitment and execution of clinical trials as
prospective and enrolled patients are unable to visit clinical
sites.
It is not currently possible to quantify the impact of COVID-19 and
resultant delays on the Company until it becomes clear that the
global crisis has abated and a normalization of the business
environment can be foreseen with confidence.
United Kingdom Placing
In July 2021, we, through Turner Pope Investments Limited, a United
Kingdom Financial Conduct Authority registered broker, completed a
placing with certain investors in the United Kingdom of
35,087,720 Ordinary Shares, or the July 2021 Placing Shares, at an
issue price of £0.285 per share.
The July 2021 Placing Shares were offered only outside the
United States in reliance upon Regulation S under the
Securities Act in an offshore transaction.
MTX110 Updates
The first application of our MidaSolve technology is for the
treatment of debilitating childhood brain cancers that have no
approved therapies. Diffuse intrinsic pontine glioma, or DIPG, is
an ultra-rare brain cancer, most commonly found in children. We
believe MTX110 (soluble panobinostat), which is a ‘direct-to-brain’
treatment for DIPG and is based on our MidaSolve technology for
direct delivery, may be an important advancement in transforming
outcomes for patients with this disease.
We have previously completed a Phase I study at the University of
California, San Francisco, or UCSF, in seven DIPG patients. The
UCSF study met its primary endpoint, supporting a dose of between
60μM and 90μM of MTX110, depending upon patient tolerance in Phase
II. We plan to initiate a Phase II study in DIPG in the second half
of 2022 to examine efficacy and safety in approximately 20
patients. The Phase II trial will also use a convection enhanced
delivery system, whereby MTX110 will be infused under slight
pressure directly into and around the tumor. We believe the primary
endpoint of the study is likely to be patient survival rates after
12 months.
On December 13, 2021, we announced our investigational new drug, or
IND, application for a Phase I trial of MTX110 in patients with
recurrent glioblastoma multiforme, or GBM, (rGBM), had been cleared
by the U.S. Food and Drug Administration. At that time, the 30-day
review period had expired and the IND had been judged safe to
proceed. Accordingly, we have initiated preparations for the trial
start in the first half of 2022.
We were engaged in tentative discussions with a third party around
the potential co-development of MTX110. We subsequently terminated
these discussions pending the outcome of our Phase I trial in
GBM.
Governmental Loans and Grants
On September 11, 2019, Midatech Spain received a €6.6 million loan
from the Spanish Ministry of Industry, Commerce and Tourism, under
its Re-industrialisation Programme, or the REINDUS Loan. The loan
was fully drawn down in September 2019, and was partially secured
by a guarantee by the Company of €3.0 million in the form of a cash
bond. The REINDUS Loan was intended to partially fund activities to
scale-up the manufacturing capability of our MTD201 program,
however, in connection with our decision to terminate the MTD201
program and shut down our Bilbao, Spain manufacturing facilities,
we fully repaid this loan in August 2020. The total amount repaid
was approximately €3.6 million (net of deposits returned to us). In
addition, we repaid other loans from the Spanish government in
connection with this termination. As of December 31, 2020, €119,000
of Spanish government loans remained outstanding. This remaining
amount was repaid in February 2021. In February 2021, we received a
fine of €149,835 from the Spanish tax authorities in relation to
the purported late repayment of the loan. We consider the fine
without foundation and are currently appealing it.
Collaboration with Janssen
On July 21, 2020, we announced a collaboration with the European
affiliate of a global pharmaceutical company to deploy our in-house
expertise and proprietary drug delivery platforms towards product
candidates nominated by the collaborating company. On January 17,
2022, we announced the extension of this collaboration and
disclosed the collaborator as Janssen Pharmaceutical NV, or
Janssen, an affiliate of Johnson & Johnson. On March 9, 2022,
we announced we had extended this collaboration to include another
large molecule.
Nominated Advisor
On March 8, 2022, we announced that Strand Hanson Limited was
appointed as our nominated and financial advisor, effective as of
such date.
Non-Compliance with NASDAQ Continued Listing
Requirements
Our Depositary Shares are currently listed on the NASDAQ Capital
Market. We are required to meet certain qualitative and financial
tests to maintain the listing of our Depositary Shares on NASDAQ.
On April 13, 2022, we received a letter from NASDAQ stating that,
for the previous 30 consecutive business days, the bid price for
our Depositary Shares had closed below the minimum $1.00 bid price
per share requirement for continued listing on the NASDAQ Capital
Market under NASDAQ Listing Rule 5550(a)(2). The notice has no
immediate effect on the listing or trading of our Depositary Shares
and the Depositary Shares will continue to trade on the NASDAQ
Capital Market under the symbol “MTP.”
In accordance with NASDAQ Listing Rules, we have a grace period of
180 calendar days, or until October 10, 2022, or the Compliance
Period, to regain compliance with the minimum bid price
requirement. To regain compliance, the closing bid price of
the Depositary Shares must meet or exceed $1.00 per share
for at least 10 consecutive business days during the Compliance
Period. If the Depositary Shares do not regain compliance with the
minimum bid price requirement during the Compliance Period, we may
be eligible for an additional grace period of 180 calendar days
provided that we satisfy NASDAQ's initial listing standards for
listing on the NASDAQ Capital Market, other than the minimum bid
price requirement, and provide written notice to NASDAQ of its
intention to cure the delinquency during the second grace period.
If we do not regain compliance during the initial grace period and
are not eligible for an additional grace period, NASDAQ will
provide written notice that the Depositary Shares are subject to
delisting from the NASDAQ Capital Market. In that event, we may
appeal such determination to a hearing panel.
We intend to monitor the bid price of our Depositary Shares during
the Compliance Period and will consider taking such actions as may
be necessary and appropriate to achieve compliance with continued
listing requirements prior to the expiration of all available grace
periods.
Our Strategy
Our development, manufacturing and commercialization strategy is
based on advancing our proprietary technology platforms and
programs with a view to partnering these assets during the course
of their development. This is expected to drive a commercial
pipeline of products with improved essential parameters, over and
above the currently marketed source or parent compound, including
safety, tolerability, efficacy and compliance profiles. We believe
that our management team has significant industry and technical
experience and is highly capable of, and committed to, building our
value.
Since our announcement of a strategic review in March 2020 and the
termination of further in-house development of MTD201, we have
sought to broaden our research and development pipeline through
technology collaborations with third party pharmaceutical
companies, initiating new internal programs and adding new
indications to MTX110. Our realigned strategy is to advance our
development programs to proof-of-concept stage, before seeking
license partners to fund further development, manufacturing
scale-up and commercialization of such programs.
Development
Our intention is to build a balanced portfolio of Q-Sphera programs
employing a strategy to create an:
|
· |
internal pipeline of long-acting,
injectable products by re-formulating existing, approved therapies;
and |
|
· |
external pipeline by entering into
research collaboration with partners to formulate their proprietary
products into long-acting injectable products. |
We have applied our MidaSolve technology to panobinostat to create
our proprietary product MTX110. Our development strategy for MTX110
is to demonstrate its utility in a range of intractable brain
cancers with a series of pilot proof-of-concept studies before
seeking licensee partners. Once a licensing partner has been
secured, we would expect any future development costs to be
reimbursed by that partner.
Manufacturing
As part of our strategic review, we decided to close our operations
in Bilbao, Spain, including our Q-Sphera dedicated manufacturing
facility. To establish proof-of-concept in pre-clinical studies for
potential licensees, we are able to manufacture non-good
manufacturing practices, or GMP, Q-Sphera products at pilot scale
at our Cardiff, Wales facility. Our intention is to technology
transfer the manufacturing of clinical trial supplies and,
ultimately, full GMP commercial manufacture to a third party
contract management organization, or CMO. We would expect a
licensee to assume the cost of manufacturing GMP product and
commercial scale-up pursuant to a technology transfer
agreement.
MTX110 is currently being manufactured to GMP standards at a
CMO.
Commercialization
Once proof-of-concept has been established, we intend to seek to
license our products to a partner who would complete the
development, and subsequently market and sale, of the product in an
agreed upon licensed territory. In addition to reimbursement of
development costs, the partner would be expected to make milestone
payments based on sales targets and royalty payments.
Our Platform Technologies and Pipeline
Central to our business are our three complementary platform
technologies that enable the sustained release, direct local
delivery, or targeted delivery improvement to previously approved
therapeutic drugs. Individually, these platforms are expected to
offer unique advantages that address current therapeutic challenges
and needs. Our sustained release “Q-Sphera” technology platform is
used for selected applications, and ensures consistently sized
monodispersed polymer microparticles that may be engineered for
precise and sustained release drug delivery. Our GNP “MidaCore”
technology platform may provide improved targeting of
chemotherapeutics agents to individual tumors using specific
targeting agents in order to deliver a therapeutic payload into the
tumor cell, while at the same time decreasing the side effect
profile associated with off-target effects of these drugs.
Our nano-inclusion technology platform, “MidaSolve,” used for local
delivery of therapeutics, allows for the delivery of generally
water insoluble drugs into the site of disease through the creation
of water soluble complexes without the efficacy of the active drug
compound being affected. Individually and collectively, we believe
that these technologies provide platforms that improve bio-delivery
and bio-distribution of therapeutic molecules to the right place of
disease, at the right time.
In 2020, following our strategic review, we pivoted from a largely
singular focus on the clinical development and manufacturing scale
up of MTD201 to a strategy based on a broader, but earlier stage,
pipeline designed to optimize opportunities for partnering success.
Our development pipeline includes eight projects, of which two are
partnered with Janssen, and as set forth in more detail below:

Corporate
Information
Our principal executive
offices are located at 1 Caspian Point, Caspian Way, Cardiff, CF10
4DQ, United Kingdom. The telephone number at our principal
executive office is +44 29 2048 0180. Our service agent in the
United States is located at Puglisi and Associates, 850 Library
Avenue Newark, Delaware 19711. Our Ordinary Shares are
admitted for trading on AIM under the listing code “MTPH.” Our
Depositary Shares, each representing five Ordinary Shares, are
listed on the NASDAQ under the symbol “MTP.” Our website is located
at http://midatechpharma.com. We do not incorporate by reference
into this prospectus the information on, or accessible through, our
website, and you should not consider it as part of this
prospectus.
Additional
Information
For additional information
related to our business and operations, please refer to the reports
incorporated herein by reference, including our 2021
Annual Report, as filed with
the SEC on April 26, 2022, and our Reports on Form 6-K as filed
with the SEC, as described in the section titled “Incorporation of
Certain Information by Reference.”
The Offering
Depositary Shares offered by the
Selling
Shareholders |
Up to an aggregate of
9,888,640 Ordinary Shares of the Company represented by 1,977,728
Depositary Shares, consisting of (1) 3,000,000 Ordinary Shares
represented by 600,000 Depositary Shares, issuable upon the
exercise of warrants issued in the October Private
Placement, (2) 150,000 Ordinary Shares represented by
30,000 Depositary Shares issuable upon the exercise of placement
agent warrants issued in connection with the October Private
Placement, (3) 6,590,910 Ordinary Shares represented by 1,318,182
Depositary Shares, issuable upon the exercise of warrants issued in
a private placement in the May Private Placement, and
(4) 147,730 Ordinary Shares represented by 29,546 Depositary Shares
issuable upon the exercise of placement agent warrants issued in
connection with the October Private Placement. The selling
shareholders are identified in the table commencing on page
17. |
|
|
Ordinary Shares outstanding at
March 31, 2022 |
98,468,413 Ordinary Shares
(including those represented by Depositary Shares) |
|
|
|
|
Depositary Shares |
Each Depositary Share represents five Ordinary Shares.
The depositary (through its custodian) will hold the Ordinary
Shares underlying your Depositary Shares. You will have rights as
provided in the deposit agreement among us, Bank of New York
Mellon, as depositary, and all owners and holders from time to time
of Depositary Shares issued thereunder. You may, among other
things, cancel your Depositary Shares and withdraw the underlying
ordinary shares against a fee paid to the depositary (which may be
reimbursable by the Company). In certain limited instances
described in the deposit agreement, we may amend or terminate the
deposit agreement without your consent. If you continue to hold
your Depositary Shares, you agree to be bound by the terms of the
deposit agreement then in effect.
To better understand the terms of the Depositary Shares and the
deposit agreement, including applicable fees and charges, you
should carefully read “Description of American Depositary Shares”
in this prospectus. You should also read the deposit agreement,
which is an exhibit to the registration statement that includes
this prospectus.
|
|
|
Depositary |
Bank of New York Mellon |
|
|
Use of proceeds |
We will not receive any proceeds
from the sale of the Ordinary Shares represented by Depositary
Shares by the selling shareholders. All net proceeds from the sale
of the Ordinary Shares represented by Depositary Shares covered by
this prospectus will go to the selling shareholders. However, we
will receive the proceeds from any exercise of warrants. See the
section of this prospectus titled “Use of Proceeds.” |
Risk factors |
Investing in our securities involves a high
degree of risk. You should read the “Risk Factors” section
starting on page 12 of this prospectus, as well as those risk
factors that are incorporated by reference in this prospectus, for
a discussion of factors to consider before deciding to invest in
our securities. |
|
|
AIM trading symbol for Ordinary Shares |
“MTPH” |
|
|
Trading symbol on NASDAQ for Depositary Shares |
“MTP” |
RISK
FACTORS
Our business has significant risks. You should consider
carefully the risks set forth below and other information in this
prospectus, including the information contained under the heading
“Risk Factors” in our 2021 Annual Report and incorporated herein by
reference, before you decide to purchase our securities. These
risks and uncertainties are not the only risks and uncertainties we
may face. Additional risks and uncertainties not presently known to
us, or that we currently consider immaterial could also negatively
affect our business, financial condition, results of operations,
prospects, profits and share prices. If any of the risks described
below actually occur, our business, financial condition, results of
operations, prospects, profits and share prices could be materially
adversely affected. See also the information contained under the
heading “Cautionary Statement Regarding Forward-Looking Statements”
herein.
The sale of a substantial amount of our Ordinary Shares
(represented by Depositary Shares), including resale of the
Ordinary Shares (represented by Depositary Shares) issuable upon
the exercise of the warrants held by the selling shareholders in
the public market could adversely affect the prevailing market
price of our Ordinary Shares and/or Depositary
Shares.
We are registering for resale 9,888,640 Ordinary Shares represented
by 1,977,728 Depositary Shares issuable upon the exercise of
warrants held by the selling shareholders. Sales of substantial
amounts of our Ordinary Shares and/or Depositary Shares in the
public market, or the perception that such sales may occur, could
adversely affect the market price of our Ordinary Shares and/or
Depositary Shares. We cannot predict if and when selling
shareholders may sell such shares in the public markets.
Furthermore, in the future, we may issue additional Ordinary Shares
(including Ordinary Shares represented by Depositary Shares). Any
such issuance could result in substantial dilution to our existing
shareholders and could cause our share price to decline.
USE OF
PROCEEDS
We will not receive any proceeds from the sale of the Ordinary
Shares represented by Depositary Shares by the selling
shareholders. All net proceeds from the sale of the Ordinary Shares
represented by Depositary Shares and the warrants covered by this
prospectus will go to the selling shareholders. We expect that the
selling shareholders will sell their Ordinary Shares represented by
Depositary Shares as described under “Plan of Distribution.”
We will receive proceeds from the exercise of the warrants and
issuance of the Depositary Shares underlying the warrants. If all
of the warrants mentioned above were exercised in full, the
proceeds would be approximately $6.7 million. We currently intend
to use the net proceeds of such warrant exercise, if any, to fund
the clinical development program of MTX110, our product for GBM and
DIPG and potentially other brain cancers, develop an internal
pipeline of Q-Sphera formulation for partnering, for working
capital and for general corporate purpose. Pending such uses, we
intend to invest the net proceeds in short-term, interest-bearing
investments.
We can make no assurances that any of the warrants will be
exercised, or if exercised, the quantity which will be exercised or
in the period in which they will be exercised.
DIVIDEND POLICY
Since inception, we have never declared or paid any cash dividends
on our Ordinary Shares and do not anticipate paying any cash
dividends on our Ordinary Shares or the Depositary Shares in the
foreseeable future. We intend to retain all available funds and any
future earnings to fund the development and expansion of our
business.
Any determination to pay dividends in the future would be at the
discretion of our Board of Directors and will depend upon our
results of operations, cash requirements, financial condition,
contractual restrictions, and any future debt agreements and is
subject to compliance with applicable laws, including the United
Kingdom Companies Act of 2006, or the Companies Act, which requires
English companies to have profits available for distribution equal
to or greater than the amount of the proposed dividend.
CAPITALIZATION
The following table sets forth our capitalization on an actual
basis as of December 31, 2021:
The amounts shown below represent management’s estimate. The
information in this table should be read in conjunction with our
“Management Discussion and Analysis of Financial Condition and
Results of Operations” and our consolidated financial statements
and notes thereto and other financial information incorporated by
reference into this prospectus.
(£’s in thousands) |
|
As of
December 31, 2021
|
|
|
|
|
|
Cash and cash equivalents |
|
|
10,057 |
|
Borrowings, non-current |
|
|
-- |
|
Total equity |
|
|
10,452 |
|
Total capitalization |
|
|
10,452 |
|
The table above does not include, as of December 31, 2021:
|
· |
3,008,276 Ordinary Shares issuable
upon the exercise of stock options outstanding under our equity
incentive plans at a weighted-average exercise price of £0.49 per
share; |
|
· |
2,835 Ordinary Shares issuable upon the exercise of stock
options assumed in connection with the acquisition of DARA
BioSciences, Inc., or DARA, at a weighted average exercise price of
$95.17 per share; |
|
· |
warrants exercisable for 15,692,276 Ordinary Shares at an
exercise price of £10.00 per share; |
|
· |
warrants exercisable for 4,080 Ordinary Shares assumed in
connection with the acquisition of DARA at an exercise price of
$61.03 per share |
|
· |
warrants, issued in connection with the October Private
Placement, exercisable for 630,000 Depositary Shares (representing
3,150,000 Ordinary Shares), at an exercise price of $6.25 per
Depositary Share; |
|
· |
warrants, issued in connection with a May Private Placement,
exercisable for 1,318,182 Depositary Shares (representing 6,590,910
Ordinary Shares), at an exercise price of $2.05 per Depositary
Shares; |
|
· |
warrants, issued to the placement agent in connection with a
May Private Placement, exercisable for 29,546 Depositary Shares
(representing 147,730 Ordinary Shares), at an exercise price of
$2.0625 per Depositary Shares; and |
|
· |
warrants, issued in connection with a May 2020 placing in the
United Kingdom, exercisable for 6,999,999 Ordinary Shares,
including warrants issued to the placing agent in connection with
such offering, at an exercise price of £0.34 per Ordinary
Share. |
REGISTERED OFFERINGS AND
PRIVATE PLACEMENTS OF SECURITIES
October 2019 Offering
On October 25, 2019, we completed the closing of a registered
direct offering with an institutional investor, or the Investor,
for the sale of 3,000,000 Ordinary Shares represented by 600,000
Depositary Shares at a price per Depositary Share of $5.00, for
aggregate gross proceeds of $3.0 million.
In the concurrent October Private Placement, we sold warrants to
the Investor, or the October Private Placement Warrants, to
purchase a total of 3,000,000 Ordinary Shares represented by
600,000 Depositary Shares at an exercise price of $6.25 per
Depositary Share. The October Private Placement Warrants became
exercisable on December 23, 2019. The October Private Placement
Warrants will expire five and one-half years from such initial
exercise date. The closing of the October Private Placement
occurred on October 25, 2019.
H.C. Wainwright & Co., LLC, or Wainwright, served as the
sole placement agent for the October Private Placement. In
connection with the registered direct offering, we also issued to
certain designees of Wainwright warrants, or Wainwright October
Warrants, for the purchase of a total of 150,000 Ordinary Shares
represented by 30,000 Depositary Shares at an exercise price per
share of $6.25 pursuant to the terms of our engagement letter
agreement with Wainwright. The Wainwright October Warrants became
exercisable on December 23, 2019 and expire on October 22, 2024.
The shares underlying the October Private Placement Warrants and
the Wainwright October Warrants are being registered for resale
hereunder.
Each of the October Private Placement Warrants and Wainwright
October Warrants are subject to a beneficial ownership limitation
of 4.99%, which does not permit the selling shareholder to exercise
that portion of the warrants that would result in the selling
shareholder and its affiliates owning, after exercise, a number of
shares of our Ordinary Shares in excess of the beneficial ownership
limitation. The beneficial ownership limitation may be increased or
decreased, provided that in no event shall it exceed 9.99%, upon
notice to us, provided that any increase in the beneficial
ownership limitation shall not be effective until 61 days following
the receipt of such notice by us.
May 2020 Offering
On May 20, 2020, we completed the closing of a registered direct
offering with certain institutional investors for the sale of
9,090,910 Ordinary Shares represented by 1,818,182 Depositary
Shares at a price per Depositary Share of $1.65, for aggregate
gross proceeds of $3.0 million.
In the concurrent May Private Placement, we sold warrants to the
same institutional investors, or the May Private Placement
Warrants, to purchase a total of 9,090,910 Ordinary Shares
represented by 1,818,182 Depositary Shares at an exercise price of
$2.05 per Depositary Share. The May Private Placement Warrants
became exercisable upon the closing of the offering. The May
Private Placement Warrants will expire five and one-half years from
the closing of the offering. The closing of the May Private
Placement occurred on May 20, 2020.
Wainwright served as the sole placement agent for the May Private
Placement. In connection with the registered direct offering, we
also issued warrants to certain designees of Wainwright, or
Wainwright May Warrants, for the purchase of a total of 454,546
Ordinary Shares represented by 90,909 Depositary Shares at an
exercise price per share of $2.0625 pursuant to the terms of our
engagement letter agreement with Wainwright. The Wainwright May
Warrants become exercisable upon the closing of the offering and
expire on May 18, 2025. The shares underlying the May Private
Placement Warrants and the Wainwright May Warrants are being
registered for resale hereunder.
Each of the May Private Placement Warrants and Wainwright May
Warrants are subject to a beneficial ownership limitation of 4.99%
or 9.99%, as applicable, which does not permit the selling
shareholder to exercise that portion of the warrants that would
result in the selling shareholder and its affiliates owning, after
exercise, a number of shares of our Ordinary Shares in excess of
the beneficial ownership limitation. The beneficial ownership
limitation may be increased or decreased, provided that in no event
shall it exceed 9.99%, upon notice to us, provided that any
increase in the beneficial ownership limitation shall not be
effective until 61 days following the receipt of such notice by
us.
SELLING SHAREHOLDERS
This prospectus covers the possible resale from time to time by the
selling shareholders identified in the table below of 9,888,640
Ordinary Shares represented by 1,977,728 Depositary Shares issuable
upon the exercise of the October Private Placement Warrants, May
Private Placement Warrants, Wainwright October Warrants and
Wainwright May Warrants (referred to in this prospectus
collectively and individually as the “warrants”). The selling
shareholders may sell some, all or none of their Ordinary Shares
represented by Depositary Shares. We do not know how long the
selling shareholders will hold the warrants, whether any will
exercise the warrants, and upon such exercise, how long such
selling shareholders will hold the Ordinary Shares represented by
Depositary Shares before selling them, and we currently have no
agreements, arrangements or understandings with the selling
shareholders regarding the sale of any of the shares.
The table below lists the selling shareholders and other
information regarding the beneficial ownership of the Ordinary
Shares represented by Depositary Shares by each of the selling
shareholders. The second column lists the number of Ordinary Shares
represented by Depositary Shares beneficially owned by each selling
shareholder, based on its ownership of Depositary Shares and
warrants to purchase Depositary Shares, as of March 31, 2022,
assuming exercise of the October Private Placement Warrants, May
Private Placement Warrants, Wainwright October Warrants and
Wainwright May Warrants, as applicable, held by the selling
shareholders on that date, without regard to any limitations on
conversions or exercises. The third column lists the maximum number
of Ordinary Shares represented by Depositary Shares being offered
in this prospectus by the selling shareholders. The fourth and
fifth columns list the amount of Ordinary Shares represented by
Depositary Shares owned after the offering, by number of Ordinary
Shares represented by Depositary Shares and percentage of
outstanding Ordinary Shares, assuming in both cases the sale of all
of the Ordinary Shares represented by Depositary Shares offered by
the selling shareholders pursuant to this prospectus, and without
regard to any limitations on conversions or exercises.
Under the terms of the warrants, a selling shareholder may not
exercise the warrants to the extent such exercise would cause such
selling shareholder, together with its affiliates, to beneficially
own a number of Ordinary Shares which would exceed 4.99% or 9.99%,
as applicable, of our then outstanding Ordinary Shares following
such exercise, excluding for purposes of such determination
Ordinary Shares not yet issuable upon exercise of the October
Private Placement Warrants, May Private Placement Warrants,
Wainwright October Warrants and Wainwright May Warrants which have
not been exercised. The beneficial ownership limitation may be
increased or decreased, provided that in no event shall it exceed
9.99%, upon notice to us, provided that any increase in the
beneficial ownership limitation shall not be effective until 61
days following the receipt of such notice by us. The number of
shares in the table below does not reflect this limitation. See
“Plan of Distribution.”
Selling Shareholder |
|
Number of
Ordinary
Shares Owned
Prior to
Offering** |
|
|
Maximum Number
of Ordinary Shares
to be Sold Pursuant
to this Prospectus** |
|
|
Number of
Ordinary
Shares Owned
After the
Offering** |
|
|
Percentage of
Ordinary
Shares Owned
After the
Offering*** |
|
Armistice Capital Master Fund Ltd. (1) |
|
|
6,255,000 |
|
|
|
6,255,000 |
|
|
|
-- |
|
|
|
-- |
|
L1 Capital Global
Opportunities Master
Fund
Ltd. (2)
|
|
|
765,155 |
|
|
|
765,155 |
|
|
|
-- |
|
|
|
-- |
|
Intracoastal Capital, LLC (3) |
|
|
691,960 |
|
|
|
691,960 |
|
|
|
-- |
|
|
|
-- |
|
Lind Global Macro Fund, LP (4) |
|
|
969,700 |
|
|
|
969,700 |
|
|
|
-- |
|
|
|
-- |
|
Iroquois Master Fund, Ltd. (5) |
|
|
681,820 |
|
|
|
681,820 |
|
|
|
-- |
|
|
|
-- |
|
Michael Vaskinkevich (6) |
|
|
96,750 |
|
|
|
96,750 |
|
|
|
-- |
|
|
|
-- |
|
Iroquois Capital
Investment Group, LLC
(7)
|
|
|
227,275 |
|
|
|
227,275 |
|
|
|
-- |
|
|
|
-- |
|
Noam Rubinstein (8) |
|
|
190,430 |
|
|
|
190,430 |
|
|
|
-- |
|
|
|
-- |
|
Charles Worthman (9) |
|
|
6,050 |
|
|
|
6,050 |
|
|
|
-- |
|
|
|
-- |
|
Mark Viklund (10) |
|
|
4,500 |
|
|
|
4,500 |
|
|
|
-- |
|
|
|
-- |
|
__________________
|
* |
Represents beneficial ownership of less than one percent. |
|
** |
Subject to beneficial ownership blocker. See notes below. |
|
*** |
Based upon 98,468,413 Ordinary Shares issued and outstanding as of
March 31, 2022.
|
|
(1) |
Based
on a Form 8.3 filed in the United Kingdom on June 1, 2020 and
information provided to us by the selling shareholder. The selling
shareholder holds warrants issued by us in the October Private
Placement and May Private Placement, which entitle the holder to
purchase up to an aggregate of 6,255,000 Ordinary Shares (in the
form of Depositary Shares). The warrants are subject to a
beneficial ownership limitation of 4.99%, which does not permit the
selling shareholder to exercise that portion of the warrants that
would result in the selling shareholder and its affiliates owning,
after exercise, a number of our Ordinary Shares in excess of the
beneficial ownership limitation. The amounts and percentages in the
table do not give effect to the 4.99% beneficial ownership
limitation, if applicable. Armistice Capital, LLC, the investment
manager of Armistice Capital Master Fund Ltd., or Armistice, and
Steven Boyd, the managing member of Armistice Capital, LLC, hold
shared voting and dispositive power over the shares held by
Armistice. Each of Armistice Capital, LLC and Steven Boyd disclaims
beneficial ownership of the securities listed except to the extent
of their pecuniary interest therein. The principal business address
of Armistice is c/o Armistice Capital, LLC, 510 Madison Avenue, 7th
Floor, New York, New York, 10022. |
|
(2) |
Based
on a Form 8.3 filed in the United Kingdom on May 28, 2020 and
information provided to us by the selling shareholder. The selling
shareholder holds warrants issued by us in the May Private
Placement, which entitle the holder to purchase up to an aggregate
of 765,155 Ordinary Shares (in the form of Depositary Shares). The
warrants are subject to a beneficial ownership limitation of 9.99%,
which does not permit the selling shareholder to exercise that
portion of the warrants that would result in the selling
shareholder and its affiliates owning, after exercise, a number of
Ordinary Shares in excess of the beneficial ownership limitation.
The amounts and percentages in the table do not give effect to the
9.99% beneficial ownership limitation, if applicable. David Feldman
and Joel Arber are both the directors the selling shareholder, and
as such they each individually have sole dispositive and voting
power. To the extent Mr. Feldman and Mr. Arber are deemed to
beneficially own such shares, Mr. Feldman and Mr. Arber disclaim
beneficial ownership of these securities for all other purposes.
The principal business address of the selling shareholder is 161A
Shedden Road, 1 Artillery Court, P.O. Box 10085, Grand Cayman,
Cayman Islands KY1-1001, Cayman Islands. |
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(3) |
Based upon information provided to
us by the selling shareholder, the selling shareholder holds
warrants issued by us in the May Private Placement which entitle
the holder to purchase up to an aggregate of 691,960 Ordinary
Shares (in the form of Depositary Shares). The warrants are subject
to a beneficial ownership limitation of 4.99%, which does not
permit the selling shareholder to exercise that portion of the
warrants that would result in the selling shareholder and its
affiliates owning, after exercise, a number of Ordinary Shares in
excess of the beneficial ownership limitation. The amounts and
percentages in the table do not give effect to the 4.99% beneficial
ownership limitation, if applicable. Mitchell P. Kopin and Daniel
B. Asher, each of whom are managers of the selling shareholder,
have shared voting control and investment discretion over the
securities reported herein that are held by the selling
shareholder. As a result, each of Mr. Kopin and Mr. Asher
may be deemed to have beneficial ownership of the securities
reported herein that are held by the selling shareholder. The
principal business address of the selling shareholder is 245 Palm
Trail, Delray Beach, Florida 33483. |
|
(4) |
Based
on a Form 8.3 filed in the United Kingdom on May 28, 2020 and
information provided to us by the selling shareholder. The selling
shareholder holds warrants issued by us in the May Private
Placement, which entitle the holder to purchase up to an aggregate
of 1,515,155 Ordinary Shares (in the form of Depositary Shares).
The warrants are subject to a beneficial ownership limitation of
4.99%, which does not permit the selling shareholder to exercise
that portion of the warrants that would result in the selling
shareholder and its affiliates owning, after exercise, a number of
Ordinary Shares in excess of the beneficial ownership limitation.
The amounts and percentages in the table do not give effect to the
4.99% beneficial ownership limitation, if applicable. Lind Global
Partners LLC, the general partner of the selling shareholder, and
Jeff Easton, the managing member of Lind Global Partners LLC, may
each be deemed to have sole voting and dispositive power with
respect to the shares held by the selling shareholder. The
principal business address of the selling shareholder is 444
Madison Avenue, Floor 41, New York, New York 10022. |
|
(5) |
Based upon information provided to
us by the selling shareholder, the selling shareholder holds
warrants issued by us in the May Private Placement which entitle
the holder to purchase up to an aggregate of 681,820 Ordinary
Shares (in the form of Depositary Shares). The warrants are subject
to a beneficial ownership limitation of 4.99%, which does not
permit the selling shareholder to exercise that portion of the
warrants that would result in the selling shareholder and its
affiliates owning, after exercise, a number of Ordinary Shares in
excess of the beneficial ownership limitation. The amounts and
percentages in the table do not give effect to the 4.99% beneficial
ownership limitation, if applicable. Iroquois Capital Management
L.L.C. is the investment manager of Iroquois Master Fund, Ltd.
Iroquois Capital Management, LLC has voting control and investment
discretion over securities held by Iroquois Master Fund. As
Managing Members of Iroquois Capital Management, LLC, Richard Abbe
and Kimberly Page make voting and investment decisions on behalf of
Iroquois Capital Management, LLC in its capacity as investment
manager to Iroquois Master Fund Ltd. As a result of the foregoing,
Mr. Abbe and Mrs. Page may be deemed to have beneficial ownership
(as determined under Section 13(d) of the Securities Exchange Act
of 1934, as amended) of the securities held by Iroquois Capital
Management and Iroquois Master Fund. The principal business address
of the selling shareholder is 125 Park Avenue, 25th Floor, New
York, New York 10017. |
|
(6) |
Based upon information provided to
us by the selling shareholder, the selling shareholder holds
warrants issued by us in the October Private Placement which
entitle the holder to purchase up to an aggregate of 96,750
Ordinary Shares (in the form of Depositary Shares). The selling
shareholder is an affiliate of H.C. Wainwright & Co. LLC, a
broker-dealer, which also previously served as our exclusive
placement agent for registered direct offering of our securities in
October 2019 and May 2020, as well the concurrent October Private
Placement and May Private Placement, respectively. The principal
business address of the selling shareholder is 430 Park Avenue,
Level 3, New York, NY 10022. |
|
(7) |
Based upon information provided to
us by the selling shareholder, the selling shareholder holds
warrants issued by us in the May Private Placement which entitle
the holder to purchase up to an aggregate of 227,275 Ordinary
Shares (in the form of Depositary Shares). The warrants are subject
to a beneficial ownership limitation of 4.99%, which does not
permit the selling shareholder to exercise that portion of the
warrants that would result in the selling shareholder and its
affiliates owning, after exercise, a number of Ordinary Shares in
excess of the beneficial ownership limitation. The amounts and
percentages in the table do not give effect to the 4.99% beneficial
ownership limitation, if applicable. Richard Abbe is the managing
member of Iroquois Capital Investment Group LLC. Mr. Abbe has
voting control and investment discretion over securities held by
Iroquois Capital Investment Group LLC. As such, Mr. Abbe may be
deemed to be the beneficial owner (as determined under Section
13(d) of the Securities Exchange Act of 1934, as amended) of the
securities held by Iroquois Capital Investment Group LLC. The
principal business address of the selling shareholder is 125 Park
Avenue, 25th Floor, New York, New York 10017. |
|
(8) |
Based upon information provided to
us by the selling shareholder, the selling shareholder holds
warrants issued by us in the October Private Placement and May
Private Placement which entitle the holder to purchase up to an
aggregate of 190,430 Ordinary Shares (in the form of Depositary
Shares). The selling shareholder is an affiliate of H.C. Wainwright
& Co. LLC, a broker-dealer, which also previously served as our
exclusive placement agent for registered direct offering of our
securities in October 2019 and May 2020, as well the concurrent
October Private Placement and May Private Placement, respectively.
The principal business address of the selling shareholder is 430
Park Avenue, Level 3, New York, NY 10022. |
|
(9) |
Based upon information provided to
us by the selling shareholder, the selling shareholder holds
warrants issued by us in the October Private Placement and May
Private Placement which entitle the holder to purchase up to an
aggregate of 6,050 Ordinary Shares (in the form of Depositary
Shares). The selling shareholder is an affiliate of H.C. Wainwright
& Co. LLC, a broker-dealer, which also previously served as our
exclusive placement agent for registered direct offering of our
securities in October 2019 and May 2020, as well the concurrent
October Private Placement and May Private Placement, respectively.
The principal business address of the selling shareholder is 430
Park Avenue, Level 3, New York, NY 10022. |
|
(10) |
Based upon information provided to
us by the selling shareholder, the selling shareholder holds
warrants issued by us in the October Private Placement and May
Private Placement which entitle the holder to purchase up to an
aggregate of 4,500 Ordinary Shares (in the form of Depositary
Shares). The selling shareholder is an affiliate of H.C. Wainwright
& Co. LLC, a broker-dealer, which also previously served as our
exclusive placement agent for registered direct offering of our
securities in October 2019 and May 2020, as well the concurrent
October Private Placement and May Private Placement, respectively.
The principal business address of the selling shareholder is 430
Park Avenue, Level 3, New York, NY 10022. |
DESCRIPTION OF OFFERED
SECURITIES AND OUR SHARE CAPITAL
The following describes our issued share capital, summarizes the
material provisions of our Articles of Association and highlights
certain differences in corporate law in the United Kingdom and the
United States. This description of our share capital and summary of
our Articles of Association is not complete, and is qualified by
reference to our Articles of Association. You should read our
Articles of Association, which are filed as an exhibit to the
registration statement of which this prospectus forms a part, for
the provisions that are important to you.
General
We are a public limited company organized under the laws of England
and Wales under registered number 09216368. Our registered office
is 1 Caspian Point, Caspian Way, Cardiff, CF10 4DQ, United Kingdom.
The principal legislation under which we operate and our shares are
issued is the United Kingdom Companies Act of 2006, or the
Companies Act.
Issued Share Capital
Our issued share capital as of December 31, 2021 and March 31, 2022
was 98,468,387 Ordinary Shares and 98,468,413 Ordinary Shares,
respectively. Each Ordinary Share has a nominal value 0.1 pence per
share. Each issued Ordinary Share is fully paid. We currently have
1,000,001 deferred shares and no preference shares in our issued
share capital.
There is no limit to the number of Ordinary Shares or preference
shares that we are authorized to issue, as the concept of
authorized capital is no longer applicable under the provisions of
the Companies Act. There are
no conversion rights, redemption provisions or sinking fund
provisions relating to any ordinary shares.
We are not permitted under English law to hold our own Ordinary
Shares unless they are repurchased by us and held in treasury. We
do not currently hold any of our own ordinary shares.
History of Share Capital
On February 26, 2019, we issued 10,389,610 units to new investors
pursuant to a subscription agreement for aggregate consideration of
approximately £8.0 million. Each unit consisted of one Ordinary
Share and one warrant to acquire Ordinary Shares.
On February 26, 2019, we issued (i) 4,331,384 units in connection
with a placing, or the 2019 Placing, to certain new and existing
investors and (ii) 1,716,951 Ordinary Shares to an existing
investor, for an aggregate consideration of approximately £4.7
million. Each unit consisted of one Ordinary Share and one warrant
to acquire Ordinary Shares.
On February 26, 2019, we issued 972,827 units in connection with an
open offer to all of our existing shareholders who did not
participate in the 2019 Placing, for an aggregate consideration of
approximately £0.75 million. Each unit consisted of one Ordinary
Share and one warrant to acquire Ordinary Shares.
On April 8, 2019, we effected a ratio change to our Depositary
Shares, pursuant to which the ratio of Ordinary Shares to
Depositary Shares was changed such that one Depositary Share
represented 20 Ordinary Shares. Our Ordinary Shares were not
affected by this change.
On October 8, 2019, we issued 25,000 Ordinary Shares for purchase
by the Midatech Pharma Share Incentive Plan.
On October 25, 2019, we issued 3,000,000 Ordinary Shares
represented by 600,000 Depositary Shares in a registered direct
offering with the Investor for aggregate gross proceeds of
$3.0 million. In addition, in a concurrent private placement,
we issued warrants to purchase a total of 3,000,000 Ordinary Shares
represented by 600,000 Depositary Shares and warrants to purchase a
total of 150,000 Ordinary Shares represented by 30,000 Depositary
Shares to affiliates of Wainwright in the private placement, each
at an exercise price of $6.25 per Depositary Share.
On March 3, 2020, following shareholder approval, we effected a
one-for-20 reverse split of our Ordinary Shares and our Ordinary
Shares began trading on AIM on a split-adjusted basis as of such
date. No fractional shares were issued in connection with the
reverse stock split. Immediately prior to the reverse stock split,
we issued seven additional Ordinary Shares, in order that the
aggregate nominal value of our Ordinary Share capital was exactly
divisible by 20.
In connection therewith, and in an effort to bring our Depositary
Share price into compliance with NASDAQ’s minimum bid price per
share requirement, on March 3, 2020 we effected a ratio change in
the number of Ordinary Shares represented by our Depositary Shares
from 20 Ordinary Shares per Depositary Share to five Ordinary
Shares per Depositary Share.
On May 20, 2020, we issued 9,090,910 Ordinary Shares represented by
1,818,182 Depositary Shares in a registered direct offering with
certain institutional investors for aggregate gross proceeds of
$3.0 million. In addition, in a concurrent private placement, we
issued warrants to purchase a total of 9,090,910 Ordinary Shares
represented by 1,818,182 Depositary Shares at an exercise price of
$2.05 per Depositary Share, and warrants to purchase a total of
454,546 Ordinary Shares represented by 90,909 Depositary Shares to
affiliates of Wainwright in the private placement at an exercise
price of $2.0625 per Depositary Share.
On May 22, 2020, we issued 6,666,666 Units to certain investors in
a placing in the United Kingdom for aggregate gross proceeds of
£1.8 million. Each Unit comprised one new Ordinary Share and one
warrant to purchase Ordinary Share, or a UK Warrant, with an
exercise price of £0.34 per share. We also issued UK Warrants to
purchase a total of 333,333 Ordinary Shares to Turner Pope, the
placing agent, in connection with the closing of such offering, on
the same terms and conditions as the other investors in the
offering.
On July 27, 2020, we issued 21,296,295 Ordinary Shares, including
2,777,777 Ordinary Shares issued pursuant to a broker option, to
certain non-U.S. investors in a placing in the United Kingdom for
aggregate gross proceeds of £5.75 million.
On July 6, 2021, we issued 35,087,720 Ordinary Shares to certain
non-U.S. investors in a placing in the United Kingdom for aggregate
gross proceeds of £10.0 million.
Options
We have established the Midatech Pharma PLC 2014 Enterprise
Management Incentive Scheme, or the EMI Scheme, pursuant to which
we have issued options to purchase Ordinary Shares to employees and
directors. As of March 31, 2022, there were options to purchase
2,881,500 Ordinary Shares under the EMI Scheme. In addition, as of
March 31, 2022, there were options to purchase 126,776 Ordinary
Shares under non-approved schemes. The options lapse after ten
years from the date of the grant.
As of March 31, 2022, the weighted average remaining life of the
option under the EMI Scheme and non-approved options schemes was
7.7 years.
In connection with our acquisition of DARA in December 2015, we
assumed all of DARA’s outstanding options, or DARA Options. As of
March 31, 2022, there were outstanding DARA Options to purchase
2,835 Ordinary shares with a weighted average remaining life of 2.7
years. All Ordinary Shares delivered to holders of DARA Options
will be delivered in the appropriate amount of Depositary
Shares.
Warrants
DARA Warrants
In connection with our acquisition of DARA, we assumed all of
DARA’s existing warrants. As of March 31, 2022, there were DARA
warrants outstanding exercisable for 4,080 Ordinary Shares, with a
weighted average exercise price of $61.03. All Ordinary Shares
delivered to holders of such DARA warrants will be delivered in the
appropriate amount of Depositary Shares.
October 2019 and May 2020 Warrants
The following is a brief summary of the October Private Placement
Warrants, Wainwright October Warrants, May Private Placement
Warrants and Wainwright May Warrants issued in connection with the
October Private Placement and May Private Placement, as applicable,
and is subject in all respects to the provisions contained in the
applicable warrants, which, with respect to the October Private
Placement Warrants and Wainwright October Warrants, are filed as
exhibits to our Report on Form 6-K dated October 24, 2019, and for
the May Private Placement Warrants and Wainwright May Warrants, are
filed as exhibits to our Report on Form 6-K dated May 20, 2020.
Unless otherwise stated, references to warrants in this section
include the October Private Placement Warrants, May Private
Placement Warrants, Wainwright October Warrants and Wainwright May
Warrants.
Exercisability. The October Private Placement Warrants and
Wainwright October Warrants became exercisable on December 23,
2019. The May Private Placement Warrants and Wainwright May
Warrants became exercisable upon issuance. The October Private
Placement Warrants and May Private Placement Warrants will expire
five and one-half years from the initial exercise date, and the
Wainwright October Warrants and Wainwright May Warrants will expire
on October 22, 2024 and May 18, 2025, respectively. The holder
shall deliver the aggregate exercise price for the Depositary
Shares specified in the exercise notice within two trading days
following the date of exercise (subject to the ‘cashless exercise’
arrangements described below).
Cashless Exercise. With respect to the October Private
Placement Warrants and Wainwright October Warrants, if, more than
six months after the date of issuance of such warrants, there is no
effective registration statement registering, or no current
prospectus available for, the resale of the Depositary Shares
underlying such warrants, the holder may exercise the warrant, in
whole or in part, on a cashless basis. With respect to the May
Private Placement Warrants and Wainwright May Warrants, if there is
no effective registration statement registering, or no current
prospectus available for, the resale of the Depositary Shares
underlying such warrants, the holder may exercise the warrant, in
whole or in part, on a cashless basis.
Exercise Price. The exercise price of (i) each October
Private Placement Warrant and Wainwright October Warrant is $6.25
per Depositary Share and (ii) each May Private Placement Warrants
and Wainwright May Warrant is $2.05 and $2.0625 per Depositary
Share, respectively, each subject to the ‘cashless exercise’
arrangements described above and to adjustment as described
below.
Beneficial Ownership Limitation. A holder shall have no
right to exercise any portion of a warrant, to the extent that,
after giving effect to such exercise, such holder, together with
such holder’s affiliates, and any persons acting as a group
together with such holder or any such affiliate, would beneficially
own in excess of, at the initial option of the holder thereof,
4.99% or 9.99%, as applicable, of the number of Ordinary Shares
outstanding immediately after giving effect to the issuance of the
Ordinary Shares underlying the Depositary Shares upon such
exercise. The holder of the warrant, upon notice to us, may
increase or decrease the beneficial ownership limitation to a
percentage not to exceed 9.99%, provided that any increase in the
beneficial ownership limitation shall not be effective until 61
days following notice to us. Beneficial ownership of the holder and
its affiliates will be determined in accordance with Section 13(d)
of the Exchange Act, and the rules and regulations promulgated
thereunder.
Stock dividends and stock splits. If we pay a stock
dividend or otherwise make a distribution payable in Depositary
Shares or Ordinary Shares, or any other equity or equivalent
securities, subdivide or combine outstanding Depositary Shares or
Ordinary Shares, or reclassify Depositary Shares, Ordinary Shares
or any shares of our capital stock, the exercise price of each
warrant will be adjusted by multiplying the then exercise price by
a fraction, the numerator of which shall be the number of
Depositary Shares (excluding treasury shares, if any) outstanding
immediately before such event, and the denominator of which shall
be the number of Depositary Shares outstanding immediately after
such event.
Rights Offerings; pro rata distributions. If we issue
Ordinary Share equivalents or rights to purchase shares, warrants,
securities or other property pro rata to holders of Depositary
Shares, a holder of a warrant will be entitled to acquire, subject
to the beneficial ownership limitation described above, such
securities or property that such holder could have acquired if such
holder had held the number of Depositary Shares issuable upon
complete exercise of the warrant immediately prior to the date a
record is taken for such issuance. If we declare or make any
dividend or other distribution of assets or rights to acquire
assets to holders of Depositary Shares or Ordinary Shares, a holder
of a warrant will be entitled to participate, subject to the
beneficial ownership limitation, in such distribution to the same
extent that the holder would have participated therein if the
holder had held the number of Depositary Shares issuable upon full
exercise of the warrant.
Fundamental Transaction. If we effect a fundamental
transaction, including, among other things, a merger, sale of
substantially all of our assets, tender offer, exchange offer and
other business combination transactions, then upon any subsequent
exercise of a warrant, the holder thereof shall have the right to
receive, for each Ordinary Share represented by the Depositary
Shares that would have been issuable upon such exercise immediately
prior to the occurrence of such fundamental transaction, the number
of shares of the successor’s or acquiring corporation’s securities,
if it is the surviving corporation, and any additional
consideration receivable as a result of such fundamental
transaction by a holder of the number of Ordinary Shares
represented by the Depositary Shares for which the warrant is
exercisable immediately prior to such fundamental transaction.
Transferability. Each warrant and all rights thereunder
are transferable, in whole or in part, upon surrender of the
warrant, together with a written assignment of the warrant subject
to applicable securities laws; provided, however, that the
Wainwright October Warrants and Wainwright May Warrants are subject
to certain FINRA transfer restrictions. We do not intend to apply
for listing of the warrants on any securities exchange or other
trading system.
No Rights as Shareholder Until Exercise. Except as set
forth in the warrants, the holders of the warrants do not have any
voting rights, dividends or other rights as a holder of our capital
stock until they exercise the warrants.
May 2020 United Kingdom Placing Warrants
On May 22, 2020, we issued 6,666,666 Units, with each Unit
comprising one new Ordinary Share and one UK Warrant. The exercise
price of the UK Warrants is £0.34 per share and it expires five
years and six months from the issuance date. We also issued UK
Warrants to purchase a total of 333,333 Ordinary Shares to Turner
Pope, the placing agent, in connection with the closing of such
offering, on the same terms and conditions as the other investors
in the offering.
Articles of Association
Shares and Rights Attaching to Them
Objects
The objects of our Company are unrestricted.
Share Rights
Subject to any special rights attaching to shares already in issue,
our shares may be issued with or have attached to them any
preferred, deferred or other special rights or privileges or be
subject to such restrictions as we may resolve by ordinary
resolution of the shareholders or decision of our board.
Voting
Rights
Without prejudice to any
rights or restrictions as to voting rights attached to any shares
forming part of our share capital from time to time, the voting
rights attaching to shares are as follows:
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on a show of hands every shareholder who
is present in person and each duly authorized representative
present in person of a shareholder that is a corporation shall have
one vote; |
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on a show of hands, each proxy
present in person has one vote for and one vote against a
resolution if the proxy has been duly appointed by more than one
shareholder and the proxy has been instructed by one or more of
those shareholders to vote for the resolution and by one or more
other of those shareholders to vote against it; |
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on a show of hands, each proxy present in
person has one vote for and one vote against a resolution if the
proxy has been duly appointed by more than one shareholder entitled
to vote on the resolution and either: (1) the proxy has been
instructed by one or more of those shareholders to vote for the
resolution and has been given any discretion by one or more other
of those shareholders to vote and the proxy exercises that
discretion to vote against it; or (2) the proxy has been
instructed by one or more of those shareholders to vote against the
resolution and has been given any discretion by one or more other
of those shareholders to vote and the proxy exercises that
discretion to vote for it; and |
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on a poll every shareholder who is
present in person or by proxy shall have one vote for each share of
which he is the holder. |
At any general meeting a
resolution put to the vote of the meeting shall be decided on a
show of hands unless a poll is demanded. Subject to the provisions
of the Companies Act, a poll may be demanded by:
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the chairman of the meeting; |
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at least five shareholders present in
person or by proxy and entitled to vote; |
|
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any shareholder(s) present in person or
by proxy and representing in the aggregate not less than 10% of the
total voting rights of all shareholders having the right to vote on
the resolution; or |
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· |
any shareholder(s) present in person or
by proxy and holding shares conferring a right to vote on the
resolution on which there have been paid up sums in the aggregate
equal to not less than 10% of the total sums paid up on all shares
conferring that right. |
Restrictions on
Voting
No shareholder shall be
entitled to vote at any general meeting or at any separate class
meeting in respect of any share held by him unless all calls or
other sums payable by him in respect of that share have been
paid.
The Board of Directors may
from time to time make calls upon the shareholders in respect of
any money unpaid on their shares and each shareholder shall
(subject to at least 14 days’ notice specifying the time or times
and place of payment) pay at the time or times so specified the
amount called on his shares. If a call remains unpaid after
it has become due and payable, and the fourteen days’ notice
provided by the Board of Directors has not been complied with, any
share in respect of which such notice was given may be forfeited by
a resolution of the Board of Directors.
A shareholder’s right to
attend general or class meetings of the Company or to vote in
respect of his shares may be suspended by the Board of Directors in
accordance with our Articles of Association if he fails to comply
with a proper request for the disclosure of interests regarding the
shares. See “—Other United Kingdom Law Considerations—Disclosure of
Interest in Shares” in this prospectus.
Dividends
We may, by ordinary
resolution, declare a dividend to be paid to the share owners
according to their respective rights and interests in profits, and
may fix the time for payment of such dividend. No dividend may be
declared in excess of the amount recommended by the directors. The
Board of Directors may from time to time declare and pay to our
share owners such interim dividends as appear to the directors to
be justified by our profits available for distribution. There are
no fixed dates on which entitlement to dividends arises on our
ordinary shares.
The share owners may pass, on
the recommendation of the directors, an ordinary resolution to
direct that all or any part of a dividend to be paid by
distributing specific assets, in particular paid up shares or
debentures of any other body corporate. Our articles of association
also permit, with the prior authority of an ordinary resolution of
shareholders, a scrip dividend scheme under which share owners may
be given the opportunity to elect to receive fully paid ordinary
shares instead of cash, or a combination of shares and cash, with
respect to future dividends.
By the way of the exercise of
a lien, if a share owner owes us any money relating in any way to
shares, the Board of Directors may deduct any of this money from
any dividend on any shares held by the share owner, or from other
money payable by us in respect of the shares. Money deducted in
this way may be used to pay the amount owed to us.
Unclaimed dividends and other
money payable in respect of a share can be invested or otherwise
used by directors for our benefit until they are claimed. A
dividend or other money remaining unclaimed 12 years after it first
became due for payment will be forfeited and shall revert to the
Company.
A shareholder’s right to
receive dividends on his shares may, if they represent more than
0.25% of the issued shares of that class, be suspended by the
directors if he fails to comply with a proper request for the
disclosure of interests regarding the shares. See “—Other United
Kingdom Law Considerations—Disclosure of Interests in Shares” in
this prospectus.
Change of
Control
There is no specific
provision in our Articles of Association that would have the effect
of delaying, deferring or preventing a change of control. We are,
however, subject to the provisions of the United Kingdom City Code
on Takeovers and Mergers, or the City Code, which contains detailed
provisions regulating the timing and manner of any takeover offer
for those of the Company’s shares which confer voting rights. See
“—Other United Kingdom Law Considerations—City Code on Takeovers
and Mergers” in this prospectus.
Variation of Rights
Whenever our share capital is
divided into different classes of shares, all or any of the rights
attached to any class may be varied or abrogated in such manner (if
any) as may be provided by those rights or (in the absence of any
such provision) either with the consent in writing of the holders
of at least 75% of the issued shares of that class or with the
authority of a special resolution passed at a separate general
meeting of the holders of the shares of that class.
Alteration of Share Capital and Repurchases
Subject to the provisions of the Companies Act, and without
prejudice to any relevant special rights attached to any class of
shares, we may, from time to time:
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increase our share capital by
allotting and issuing new shares in accordance with the our
articles of association and any relevant shareholder
resolution; |
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consolidate all or any of our
share capital into shares of a larger nominal amount (i.e.,
par value) than the existing shares; |
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subdivide any of our shares into
shares of a smaller nominal amount (i.e., par value) than
our existing shares; or |
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redenominate our share capital or any class of
share capital. |
Preemptive Rights and New Issuance of Shares
Under the Companies Act, the issuance of equity securities (except
shares held under an employees’ share scheme) that are to be paid
for wholly in cash must be offered first to the existing holders of
equity securities in proportion to the respective nominal amounts
(i.e., par values) of their holdings on the same or more favorable
terms, unless a special resolution to the contrary has been passed
or the articles of association otherwise provide an exclusion from
this requirement (which exclusion can be for a maximum of five
years after which our shareholders’ approval would be required to
renew the exclusion). In this context, “equity securities” means
ordinary shares (and would exclude shares that, with respect to
dividends or capital, carry a right to participate only up to a
specified amount in a distribution), and any and all rights to
subscribe for or convert securities into such ordinary shares. This
differs from U.S. law, under which shareholders generally do not
have pre-emptive rights unless specifically granted in the
certificate of incorporation or otherwise.
By way of resolutions passed at our annual general meeting held on
June 30, 2021, or the 2021 AGM, authorities were given to the
directors to allot shares in the Company, or to grant rights to
subscribe for or to convert or exchange any security into shares in
the Company, up to an aggregate nominal amount of £21,126.88,
representing approximately one third of the then issued share
capital of the Company, with such authority set to expire 15 months
from the date of passing of said resolution or at the conclusion of
the annual general meeting of the Company to be held in 2022,
whichever is the earlier. Pursuant to the authority granted at the
2021 AGM, the Company currently has authority to allot up to
21,126,880 ordinary shares, of which the Company has authority to
allot 6,338,070 ordinary shares on a non-pre-emptive basis. Renewal
of such authorizations is expected to be sought at each of our
annual general meetings.
In circumstances where we allot further ordinary shares, we must
apply for such new ordinary shares to be admitted to trading on
AIM, which in some instances requires the publication of an
admission document.
Transfer of Shares
Any certificated shareholder may transfer all or any of his shares
by an instrument of transfer in the usual common form or in any
other manner which is permitted by the Companies Act and approved
by the Board of Directors. Any written instrument of transfer shall
be signed by or on behalf of the transferor and (in the case of a
partly paid share) the transferee.
All transfers of uncertificated shares shall be made in accordance
with and subject to the provisions of the Uncertificated Securities
Regulations 2001 and the facilities and requirements of its
relevant system. The Uncertificated Securities
Regulations 2001 permit shares to be issued and held in
uncertificated form and transferred by means of a computer-based
system.
The Board of Directors may decline to register any transfer of any
share unless it is:
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· |
a share on which the Company has no
lien; |
|
· |
in respect of only one class of
shares; |
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· |
in favor of a single transferee or
not more than four transferees; or |
|
· |
delivered for registration at the
Company’s registered office or such other place as the Board of
Directors may decide, accompanied by the certificate for the shares
to which it relates (other than uncertificated shares) and any
other evidence the Board of Directors may reasonably require to
provide the title to such share of the transferor. |
If the Board of Directors declines to register a transfer it shall,
as soon as practicable and in any event within two months after the
date on which the transfer is lodged, send to the transferee notice
of the refusal, together with reasons for the refusal.
CREST
To be traded on AIM, securities must be able to be transferred and
settled through the CREST system. CREST is a computerized paperless
share transfer and settlement system which allows securities to be
transferred by electronic means, without the need for a written
instrument of transfer. The Articles of Association are consistent
with CREST membership and, among other things, allow for the
holding and transfer of shares in uncertificated form.
Shareholder
Meetings
Annual General
Meetings
In accordance with the
Companies Act, we are required in each year to hold an annual
general meeting in addition to any other general meetings in that
year and to specify the meeting as such in the notice convening it.
The annual general meeting shall be convened whenever and wherever
the board sees fit, subject to the requirements of the Companies
Act.
Notice of General
Meetings
Subject to certain
conditions, holders of Depositary Shares are entitled to receive
notices under the terms of the deposit agreement relating to the
Depositary Shares. See “Description of American Depositary
Shares—Voting Rights” in this prospectus.
Quorum of General
Meetings
No business shall be
transacted at any general meeting unless a quorum is present, but
the absence of a quorum shall not preclude the appointment, choice
or election of a chairman which shall not be treated as part of the
business of the meeting. At least two shareholders present in
person or by proxy and entitled to vote shall be a quorum for all
purposes.
Class
Meetings
The provisions in the
Articles of Association relating to general meetings apply to every
separate general meeting of the holders of a class of shares except
that:
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· |
no member, other than a member
of the Board of Directors,
shall be entitled to notice of it or attend such meeting unless he
is a holder of shares of that class; |
|
· |
the quorum for such class meeting shall
be two holders in person or by proxy representing not less than
one-third in nominal value of the issued shares of
the class; |
|
· |
at the class meeting, a holder of
shares of the class present
in person or by proxy may demand a poll and shall on a poll be
entitled to one vote for every shares of the class held by him;
and |
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· |
if at any adjourned meeting of
such holders a quorum
is not present at the meeting, one holder of shares of the class
present in person or by proxy at an adjourned meeting constitutes a
quorum. |
Directors
Number of
Directors
We may not have less than two
directors on our Board of Directors. We have no maximum number of
directors, though we may fix a maximum number by ordinary
resolution of the shareholders. We may, by ordinary resolution of
the shareholders, vary the minimum and any maximum number of
directors from time to time.
Appointment of
Directors
Subject to the provisions of
the Articles of Association, we may, by ordinary resolution of the
shareholders, elect any person to be a director, either to fill a
casual vacancy or as an addition to the existing board.
Without prejudice to the
power to appoint any person to be a director by shareholder
resolution, the Board of Directors has the power to appoint any
person to be a director, either to fill a casual vacancy or as an
addition to the existing Board of Directors. Any director appointed
by the Board of Directors will hold office only until the earlier
to occur of the close of the next following annual general meeting
and someone being appointed in his stead at that meeting. Such a
director is eligible for re-election at that meeting but shall not
be taken into account in determining the directors or the number of
directors who are to retire by rotation at such meeting.
Rotation of
Directors
At every annual general
meeting, one-third of the directors or, if their number is not a
multiple of three, then the number nearest to and not exceeding
one-third, shall retire from office and each director must retire
from office at least once every three years. If there are fewer
than three directors, one director shall make himself or herself
available for re-election
The directors to retire on
each occasion shall be those subject to retirement by rotation who
have been longest in office since their last election, but as
between persons who became or were re-elected directors on the same
day those to retire shall (unless they otherwise agree amongst
themselves) be determined by lot.
A director who retires at the
annual general meeting shall be eligible for
re-election.
The shareholders may, at the
meeting at which a director retires, fill the vacated office by
electing a person and in default the retiring director shall, if
willing to continue to act, be deemed to have been re-elected,
unless at such meeting it is expressly resolved not to fill such
vacated office or unless a resolution for the re-election of such
director shall have been put to the meeting and lost or such
director has given notice in writing to us that he is unwilling to
be re-elected or such director has attained the retirement age
applicable to him as director pursuant to the Companies
Act.
Director’s
Interests
The Board of Directors may
authorize, to the fullest extent permitted by law, any matter
proposed to them which would otherwise result in a director
infringing his duty to avoid a situation in which he has, or can
have, a direct or indirect interest that conflicts, or possibly may
conflict, with our interests and which may reasonably be regarded
as likely to give rise to a conflict of interest. A director shall
not, save as otherwise agreed by him, be accountable to us for any
benefit which he (or a person connected with him) derives from any
matter authorized by the directors and any contract, transaction or
arrangement relating thereto shall not be liable to be avoided on
the grounds of any such benefit.
Subject to the requirements
under Sections 175, 177 and 182 of the Companies Act (which require
a director to avoid a situation in which he has, or can have, a
direct or indirect interest that conflicts, or possibly conflicts,
with our interests, and to declare any interest that he has,
whether directly or indirectly, in a proposed or existing
transaction or arrangement with us), and provided that he has
disclosed to the Board of Directors the nature and extent of any
interest of his in accordance with the Companies Act and the
Articles of Association, a director notwithstanding his
office:
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· |
may be a party to, or otherwise interested in, any
transaction or arrangement with us or in which we are otherwise
interested; |
|
· |
may be a director or other
officer of, or employed by,
or a party to any transaction or arrangement with, or otherwise
interested in, any body corporate promoted by us or in which we are
otherwise interested; and |
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· |
shall not, by reason of his office, be
accountable to us for any benefit which he derives from any such
office or employment or from any such transaction or arrangement or from
any interest in any such body corporate and no such transaction or
arrangement shall be liable to be avoided on the ground of any such
interest or benefit. |
In the case of interests
arising where a director is in any way, directly or indirectly,
interested in (a) a proposed transaction or arrangement with
us or (b) a transaction or arrangement that has been entered
into by us and save as otherwise provided by the Articles of
Association, such director shall not vote at a meeting of the Board
of Directors or of a committee of the Board of Directors on any
resolution concerning such matter in which he has a material
interest (otherwise than by virtue of his interest in shares,
debentures or other securities of, or otherwise in or through, us)
unless his interest or duty arises only because the case falls
within one or more of the following paragraphs:
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· |
the resolution relates to the giving to
him or a person connected with him of a guarantee, security or
indemnity in respect of money lent to, or an obligation incurred by
him or such a person at the request of or for the benefit of, us or
any of our subsidiaries; |
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· |
the resolution relates to the giving of a
guarantee, security or indemnity in respect of a debt or obligation
of ours or any of our subsidiaries for which the
director or a person
connected with him has assumed responsibility in whole or part
under a guarantee or indemnity or by the giving of
security; |
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· |
the resolution relates in any way to any
other company in which he is interested, directly or indirectly and
whether as an officer or shareholder or otherwise howsoever,
provided that he and any persons connected with him do not to his
knowledge hold an interest in shares representing one per cent or
more of any class of the equity share capital of such company or of
the voting rights available to shareholder of such
company; |
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· |
the resolution relates in any way to an
arrangement for the benefit of our employees or any employees of
our subsidiaries which does not award him as such any privilege or
benefit not generally awarded to the employees to whom such
arrangement relates; |
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· |
the resolution relates in any way to the
purchase or maintenance for the directors of insurance;
or |
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· |
the resolution is in respect of any
matter in which the interest of the director cannot reasonably be
regarded as conflicting. |
A director shall not be
counted in the quorum present at a meeting in relation to a
resolution on which he is not entitled to vote.
If a question arises at a
meeting of the Board of Directors or of a committee of the Board of
Directors as to the right of a director to vote or be counted in
the quorum, and such question is not resolved by his voluntarily
agreeing to abstain from voting or not to be counted in the quorum,
the question may, before the conclusion of the meeting, be referred
to the chairman of the meeting and his ruling in relation to any
director other than himself shall be final and conclusive except in
a case where the nature or extent of the interest of the director
concerned has not been fairly disclosed.
An interest of a person
connected with a director shall be treated as an interest of the
director and Section 252 of the Companies Act shall determine
whether a person is connected with a director.
Directors’ Fees and
Remuneration
Each of the directors shall
be paid a fee at such rate as may from time to time be determined
by the Board of Directors (or for the avoidance of doubt any duly
authorized committee of the Board of Directors) provided that the
aggregate of all such fees so paid to directors shall not exceed
£300,000 per annum, or such higher amount as may from time to
time be determined by ordinary resolution of
shareholders.
Each director may be paid his
reasonable traveling, hotel and other expenses of attending and
returning from meetings of the Board of Directors or committees
thereof of or general meetings or separate meetings of the holders
class of shares or of debentures and shall be paid all expenses
properly and reasonably incurred by him in the conduct of the
Company’s business or in the discharge of his duties as a director.
Any director who, by request, goes or resides abroad for any
purposes required by us or who performs services which in the
opinion of the Board of Directors go beyond the ordinary duties of
a director may be paid such extra remuneration as the Board of
Directors may determine.
An executive director shall
receive such remuneration as the Board of Directors may determine,
and either in addition to or in lieu of his remuneration as a
director as detailed above.
Age Limitations and Share
Ownership
We do not have any age
limitations for our directors, nor do we have mandatory retirement
as a result of reaching a certain age. Our directors are not
required to hold any shares in the Company.
Borrowing
Power
Our directors may exercise
all the powers of the Company to borrow or raise money and mortgage
or charge all or any part of our undertaking, property and assets
(present and future), and uncalled capital. Subject to the
Companies Act, the directors may also create and issue debentures,
other loan stock and other securities, whether outright or as
collateral security for any debt, liability or obligation of the
Company or of any third party. Our directors are required to
restrict the borrowings of the Company to ensure that the aggregate
principal amount of borrowings at any one time outstanding and all
of its subsidiary undertakings (other than intra-Group borrowing)
shall not at any time, without the previous sanction of an ordinary
resolution of the Company, exceed two times the gross asset value
of the Company and our subsidiaries.
Liability of Midatech and
its Directors and Officers
Subject to the provisions on
indemnities set out in Companies Act, every director, alternate
director or former director (and of any associated company) shall
be entitled to be indemnified out of our assets against all costs
and liabilities incurred by him or her in relation to any
proceedings or any regulatory investigation or action which relate
to anything done or omitted or alleged to have been done or omitted
by him or her as a director so long as the indemnities do not cover
liability for breach of duty to the Company or cover any fine,
costs or related expense in connection with any proceedings for
default on the part of the director. Lawful indemnities extend to
the provision of funds to him or her by the Company to meet
expenditure incurred or to be incurred by him in defending himself
in any proceedings (whether civil or criminal) or in connection
with an application for statutory relief or in an investigation by
a regulatory authority which must however be repaid where such
proceedings, application, investigation or action are in connection
with any alleged negligence, default, breach of duty or breach of
trust by him or her in relation to the Company (or any associated
company of ours) and he or she is convicted or found in default
thereof. Under English law, any provision that purports to exempt a
director of a company (to any extent) from any liability that would
otherwise attach to him in connection with any negligence, default,
breach of duty or breach of trust in relation to the company is
void.
Under a deed poll declared by
us on August 5, 2015, or a Deed of Indemnity, our Board of
Directors and our Company Secretary are indemnified against costs
and liabilities incurred in connection with their office, other
than any liability owed by such person to the Company itself (or
any of our associated entities) and other than indemnification for
liabilities in certain circumstances, which are prohibited by
virtue of the Companies Act. The Deed of Indemnity provides that a
director may also be lent sums to finance any relevant defense
costs, provided that, in the event such proceedings involve
criminal or civil matters in which the person is convicted or has a
judgment made against him or her, then such loan must be repaid.
Our total aggregate liability of Midatech under the Deed of
Indemnity is £5 million.
Insofar as indemnification
for liabilities arising under the Securities Act may be permitted
to our directors, officers and controlling persons pursuant to a
charter provision, by-law, contract, arrangements, statute or
otherwise, we acknowledge that in the opinion of the SEC such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
Other United Kingdom Law
Considerations
Notification of Voting
Rights
A shareholder in a public
company incorporated in the United Kingdom whose shares are
admitted to trading on AIM is required pursuant to Rule 5 of the
Disclosure Guidance and Transparency Rules of the United Kingdom
Financial Conduct Authority to notify us of the percentage of his
voting rights if the percentage of voting rights which he holds as
a shareholder or through his direct or indirect holding of
financial instruments (or a combination of such holdings) reaches,
exceeds or falls below 3%, 4%, 5%, and each 1% threshold thereafter
up to 100% as a result of an acquisition or disposal of
shares.
Mandatory Purchases and
Acquisitions
Pursuant to Sections 979 to
991 of the Companies Act, where a takeover offer has been made for
us and the offeror has acquired or unconditionally contracted to
acquire not less than 90% in value of the shares to which the offer
relates and not less than 90% of the voting rights carried by those
shares, the offeror may give notice to the holder of any shares to
which the offer relates which the offeror has not acquired or
unconditionally contracted to acquire that he wishes to acquire,
and is entitled to so acquire, those shares on the same terms as
the general offer. The offeror would do so by sending a notice to
the outstanding minority shareholders telling them that it will
compulsorily acquire their shares. Such notice must be sent within
three months of the last day on which the offer can be accepted in
the prescribed manner. The squeeze-out of the minority shareholders
can be completed at the end of six weeks from the date the notice
has been given, following which the offeror can execute a transfer
of the outstanding shares in its favor and pay the consideration to
us, and we would hold the consideration on trust for the
outstanding minority shareholders. The consideration offered to the
outstanding minority shareholders whose shares are compulsorily
acquired under the Companies Act must, in general, be the same as
the consideration that was available under the takeover
offer.
Sell
Out
The Companies Act also gives
our minority shareholders a right to be bought out in certain
circumstances by an offeror who has made a takeover offer for all
of our shares. The holder of shares to which the offer relates, and
who has not otherwise accepted the offer, may require the offeror
to acquire his shares if, prior to the expiry of the acceptance
period for such offer, (i) the offeror has acquired or agreed
to acquire not less than 90% in value of the voting shares, and
(ii) not less than 90% of the voting rights carried by those
shares. The offeror may impose a time limit on the rights of
minority shareholders to be bought out that is not less than three
months after the end of the acceptance period. If a shareholder
exercises his rights to be bought out, the offeror is required to
acquire those shares on the terms of this offer or on such other
terms as may be agreed.
Disclosure of Interest
in Shares
Pursuant to Part 22 of the
Companies Act, we are empowered by notice in writing to any person
whom we know or have reasonable cause to believe to be interested
in our shares, or at any time during the three years immediately
preceding the date on which the notice is issued has been so
interested, requiring such person within a reasonable time to
disclose to us particulars of that person’s interest and (so far as
is within his knowledge) particulars of any other interest that
subsists or subsisted in those shares. The Articles of Association
specify that a response is required from such person within 14 days
after service of any such notice.
Under the Articles of
Association, if a person defaults in supplying us with the required
particulars in relation to the shares in question, or Default
Shares, the directors may by notice direct that:
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· |
in respect of the Default Shares, the
relevant member shall not be entitled to attend or vote (either in
person or by proxy) at any general meeting or of a general meeting
of the holders of a class of shares or upon any poll or to exercise
any right conferred by the Default Shares; and/or |
|
· |
where the Default Shares represent at
least 0.25% of their class, (a) any dividend (or any part of a
dividend) payable in respect of the Default Shares shall be
retained by us without liability to pay interest, (b) the
shareholder may not be entitled to elect to receive shares instead
of a dividend, and (c) no transfers by the relevant member of any
Default Shares may be registered (unless the member himself is not
in default and the transfer does not relate to Default Shares, the
transfer is exempt or that the transfer is permitted under the U.K.
Uncertificated Securities Regulations 2001). |
Purchase of Own
Shares
Under English law, a limited
company may only purchase or redeem its own shares out of the
distributable profits of the company or the proceeds of a fresh
issue of shares made for the purpose of financing the purchase,
provided that they are not restricted from doing so by their
articles. A limited company may not purchase or redeem its own
shares if, as a result of the purchase, there would no longer be
any issued shares of the company other than redeemable shares or
shares held as treasury shares. Shares must be fully paid in order
to be repurchased.
Subject to the above, we may
purchase our own shares in the manner prescribed below. We may make
a market purchase of our own fully paid shares pursuant to an
ordinary resolution of shareholders. The resolution authorizing the
purchase must:
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· |
specify the maximum number of shares
authorized to be acquired; |
|
· |
determine the maximum and minimum prices
that may be paid for the shares; and |
|
· |
specify a date, not being later than five
years after the passing of the resolution, on which the authority
to purchase is to expire. |
We may purchase our own fully
paid shares otherwise than on a recognized investment exchange
pursuant to a purchase contract authorized by resolution of
shareholders before the purchase takes place. Any authority will
not be effective if any shareholder from whom we propose to
purchase shares votes on the resolution and the resolution would
not have been passed if he had not done so. The resolution
authorizing the purchase must specify a date, not being later than
five years after the passing of the resolution, on which the
authority to purchase is to expire.
Distributions and Dividends
Under the Companies Act, before a company can lawfully make a
distribution or dividend, it must ensure that it has sufficient
distributable reserves (on a non-consolidated basis). The basic
rule is that a company’s profits available for the purpose of
making a distribution are its accumulated, realized profits, so far
as not previously utilized by distribution or capitalization, less
its accumulated, realized losses, so far as not previously written
off in a reduction or reorganization of capital duly made. The
requirement to have sufficient distributable reserves before a
distribution or dividend can be paid applies to us and to each of
our subsidiaries that has been incorporated under English law.
It is not sufficient that we, as a public company, have made a
distributable profit for the purpose of making a distribution. An
additional capital maintenance requirement is imposed on us to
ensure that the net worth of the company is at least equal to the
amount of its capital. A public company can only make a
distribution:
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· |
if, at the time that the
distribution is made, the amount of its net assets (that is, the
total excess of assets over liabilities) is not less than the total
of its called up share capital and undistributable reserves;
and |
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· |
if, and to the extent that, the
distribution itself, at the time that it is made, does not reduce
the amount of the net assets to less than that total. |
City Code on Takeovers and Mergers
As a United Kingdom incorporated public company with our registered
office in the United Kingdom which is admitted to AIM, we are
subject to the City Code, which is issued and administered by the
United Kingdom Panel on Takeovers and Mergers, or the Panel. The
City Code provides a framework within which takeovers of companies
subject to it are conducted. In particular, the City Code contains
certain rules in respect of mandatory offers. Under Rule 9 of the
City Code, if a person:
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· |
acquires an interest in our shares
which, when taken together with shares in which he or persons
acting in concert with him are interested, carries 30% or more of
the voting rights of our shares; or |
|
· |
who, together with persons acting
in concert with him, is interested in shares that in the aggregate
carry not less than 30% and not more than 50% of the voting rights
in us, acquires additional interests in shares that increase the
percentage of shares carrying voting rights in which that person is
interested, |
the acquirer, and depending on the circumstances, its concert
parties would be required (except with the consent of the Panel) to
make a cash offer for our outstanding shares at a price not less
than the highest price paid for any interests in the shares by the
acquirer or its concert parties during the previous 12
months.
Exchange Controls
There are no governmental laws, decrees, regulations or other
legislation in the United Kingdom that may affect the import or
export of capital, including the availability of cash and cash
equivalents for use by us, or that may affect the remittance of
dividends, interest, or other payments by us to non-resident
holders of our Ordinary Shares or Depositary Shares, other than
withholding tax requirements. There is no limitation imposed by
English law or in the Articles of Association on the right of
non-residents to hold or vote shares.
DESCRIPTION OF AMERICAN
DEPOSITARY SHARES
General
Our Depositary Shares are deposited pursuant to the Amended and
Restated Deposit Agreement dated February 8, 2021, among the
Company, The Bank of New York Mellon as depositary, ands owners and
holders of Depositary Shares. The depositary registers and delivers the
Depositary Shares.
Each Depositary Share represents five Ordinary Shares (or a right
to receive five Ordinary Shares) deposited with The Bank of New
York Mellon, London Branch, or any successor, as custodian for the
depositary. Each Depositary Share also represents any other
securities, cash or other property that may be held by the
depositary. The deposited Ordinary Shares together with any other
securities, cash or other property held by the depositary are
referred to as the deposited securities. The depositary’s office at
which the Depositary Shares are administered and its principal
executive office are located at 240 Greenwich Street, New York, New
York 10286.
You may hold Depositary Shares either (1) directly (a) by
having an American Depositary Receipt, or ADR, which is a
certificate evidencing a specific number of Depositary Shares,
registered in your name, or (b) by having Depositary Shares
registered in your name in the Direct Registration System, or
(2) indirectly by holding a security entitlement in Depositary
Shares through your broker or other financial institution. If you
hold Depositary Shares directly, you are a registered Depositary
Share holder, also referred to as an ADS holder. This description
assumes you are a Depositary Share holder. If you hold the
Depositary Shares indirectly, you must rely on the procedures of
your broker or other financial institution to assert the rights of
Depositary Share holders described in this section. You should
consult with your broker or financial institution to find out what
those procedures are.
The Direct Registration System, or DRS, is a system administered by
The Depository Trust Company, or DTC, pursuant to which the
depositary may register the ownership of uncertificated Depositary
Shares, which ownership is confirmed by periodic statements sent by
the depositary to the registered holders of uncertificated
Depositary Shares.
Depositary Share holders are not treated as shareholders and do not
have shareholder rights. English law governs shareholder rights.
The depositary is the holder of the ordinary shares underlying the
Depositary Shares. As a holder of Depositary Shares, you will have
Depositary Share holder rights. A deposit agreement among us, the
depositary and you, as a Depositary Share holder, and all other
persons directly and indirectly holding Depositary Shares sets out
Depositary Share holder rights as well as the rights and
obligations of the depositary. A copy of the deposit agreement is
incorporated by reference as an exhibit to the Company’s 2021
Annual Report. New York law governs the deposit agreement and
the Depositary Shares.
The following is a summary of the material provisions of the
deposit agreement. For more complete information, you should read
the entire deposit agreement and the form of Depositary
Share.
Dividends and Other Distributions
How will you receive dividends and other distributions on the
Ordinary Shares?
The depositary has agreed to pay you the cash dividends or other
distributions it or the custodian receives on Ordinary Shares or
other deposited securities, after deducting its fees and expenses.
As a Depositary Share holder, you will receive these distributions
in proportion to the number of Ordinary Shares your Depositary
Shares represent.
Cash. We do not expect to declare or pay any cash dividends
or cash distributions on our Ordinary Shares for the foreseeable
future. The depositary will convert any cash dividend or other cash
distribution we pay on the Ordinary Shares or any net proceeds from
the sale of any Ordinary Shares, rights, securities or other
entitlements into U.S. dollars if it can do so on a reasonable
basis and at the then prevailing market rate, and can transfer the
U.S. dollars to the United States. If that is not possible and
lawful or if any government approval is needed and cannot be
obtained, the deposit agreement allows the depositary to distribute
the foreign currency only to those Depositary Share holders to whom
it is possible to do so. It will hold the foreign currency it
cannot convert for the account of the Depositary Share holders who
have not been paid. It will not invest the foreign currency and it
will not be liable for any interest. Before making a distribution,
any taxes or other governmental charges, together with fees and
expenses of the depositary that must be paid, will be deducted. See
the section titled “Item 10 E. Additional
Information—Taxation” in our 2021 Annual Report for a
summary of certain tax consequences in respect of dividends or
distributions to holders of Depositary Shares. It will distribute
only whole U.S. dollars and cents and will round fractional cents
to the nearest whole cent. If the exchange rates fluctuate
during a time when the depositary cannot convert the foreign
currency, you may lose some or all of the value of the
distribution.
Ordinary Shares. The depositary may distribute additional
Depositary Shares representing any Ordinary Shares we distribute as
a dividend or free distribution to the extent reasonably
practicable and permissible under law. The depositary will only
distribute whole Depositary Shares. If the depositary does not
distribute additional Depositary Shares, the outstanding Depositary
Shares will also represent the new Ordinary Shares. The depositary
may sell a portion of the distributed Ordinary Shares sufficient to
pay its fees and expenses in connection with that
distribution.
Elective Distributions in Cash or Shares. If we offer
holders of our Ordinary Shares the option to receive dividends in
either cash or shares, the depositary, after consultation with us,
may make such elective distribution available to you as a holder of
the Depositary Shares. We must first instruct the depositary to
make such elective distribution available to you. As a condition of
making a distribution election available to Depositary Share
holders, the depositary may require satisfactory assurances from us
that doing so would not require registration of any securities
under the Securities Act. There can be no assurance that you will
be given the opportunity to receive elective distributions on the
same terms and conditions as the holders of Ordinary Shares, or at
all.
Rights to Purchase Additional Ordinary Shares. If we offer
holders of our securities any rights to subscribe for additional
Ordinary Shares or any other rights, the depositary may make these
rights available Depositary Share holders. If the depositary
decides it is not legal and practical to make the rights available
but that it is practical to sell the rights, the depositary will
use reasonable efforts to sell the rights and distribute the
proceeds in the same way as it does with cash distributions. The
depositary will allow rights that are not distributed or sold to
lapse. In that case, you will receive no value for them.
If the depositary makes rights available to you, it will exercise
the rights and purchase the Ordinary Shares on your behalf and in
accordance with your instructions. The depositary will then deposit
the ordinary shares and deliver Depositary Shares to you. It will
only exercise rights if you pay it the exercise price and any other
charges the rights require you to pay and comply with other
applicable instructions.
U.S. securities laws may restrict transfers and cancellation of the
Depositary Shares representing Ordinary Shares purchased upon
exercise of rights. For example, you may not be able to trade these
Depositary Shares freely in the United States. In this case, the
depositary may deliver restricted Depositary Shares that have the
same terms as the Depositary Shares described in this
section except for changes needed to put the necessary
restrictions in place.
Other Distributions. The depositary will send to you
anything else we distribute to holders of deposited securities by
any means it determines is equitable and practicable. If it cannot
make the distribution proportionally among the owners, the
depositary may adopt another equitable and practical method. It may
decide to sell what we distributed and distribute the net proceeds,
in the same way as it does with cash. Or, it may decide to hold
what we distributed, in which case Depositary Shares will also
represent the newly distributed property.
However, the depositary is not required to distribute any
securities (other than Depositary Shares) to Depositary Share
holders unless it receives satisfactory evidence from us that it is
legal to make that distribution. In addition, the depositary may
sell a portion of the distributed securities or property sufficient
to pay its fees and expenses in connection with that
distribution.
Neither we nor the depositary are responsible for any failure to
determine that it may be lawful or feasible to make a distribution
available to any Depositary Share holders. We have no obligation to
register Depositary Shares, ordinary shares, rights or other
securities under the Securities Act. This means that you may not
receive the distributions we make on our Ordinary Shares or any
value for them if it is illegal or impractical for us to make them
available to you.
Deposit, Withdrawal and Cancellation
How are Depositary Shares issued?
The depositary will deliver Depositary Shares if you or your broker
deposit Ordinary Shares or evidence of rights to receive Ordinary
Shares with the custodian. Upon payment of its fees and expenses
and of any taxes or charges, such as stamp taxes or share transfer
taxes or fees, and delivery of any required endorsements,
certifications or other instruments of transfer required by the
depositary, the depositary will register the appropriate number of
Depositary Shares in the names you request and will deliver the
Depositary Shares to or upon the order of the person or persons
that made the deposit.
How can Depositary Share holders withdraw the deposited
securities?
You may surrender your Depositary Shares at the depositary’s
corporate trust office. Upon payment of its fees and expenses and
of any taxes or charges, such as stamp taxes or share transfer
taxes or fees, the depositary will transfer and deliver the
Ordinary Shares and any other deposited securities underlying the
Depositary Shares to you or a person designated by you at the
office of the custodian or through a book-entry delivery.
Alternatively, at your request, risk and expense, the depositary
will transfer and deliver the deposited securities at its corporate
trust office, if feasible.
How do Depositary Share holders interchange between
certificated Depositary Shares and uncertificated Depositary
Shares?
You may surrender your ADRs to the depositary for the purpose of
exchanging your ADRs for uncertificated Depositary Shares. The
depositary will cancel the ADRs and will send you a statement
confirming that you are the owner of uncertificated Depositary
Shares. Alternatively, upon receipt by the depositary of a proper
instruction from a registered holder of uncertificated Depositary
Shares requesting the exchange of uncertificated Depositary Shares
for certificated Depositary Shares, the depositary will execute and
deliver to you an ADR evidencing those Depositary Shares.
Voting Rights
How do you vote?
You may instruct the depositary to vote the number of whole
deposited Ordinary Shares your Depositary Shares represent. The
depositary will notify you of shareholders’ meetings or other
solicitations of consents and arrange to deliver our voting
materials to you if we ask it to. Those materials will describe the
matters to be voted on and explain how you may instruct the
depositary how to vote. For instructions to be valid, they must
reach the depositary by a date set by the depositary.
The depositary will try, as far as practical, and subject to the
laws of England and Wales and our Articles of Association, to vote
or to have its agents vote the Ordinary Shares or other deposited
securities as instructed by Depositary Share holders.
The depositary will only vote or attempt to vote as you instruct or
as described above. If we ask the depositary to solicit the
Depositary Share holders’ instructions to vote and a Depositary
Share holder fails to instruct the depositary as to the manner in
which to vote by the specified date, such Depositary Share holder
will be deemed to have given a discretionary proxy to a person
designated by us to vote the number of deposited securities
represented by its Depositary Shares, unless we notify the
depositary that we do not wish to receive a discretionary proxy,
there is substantial shareholder opposition to the particular
question, or the particular question would have an adverse impact
on our shareholders.
We cannot assure you that you will receive the voting materials in
time to ensure that you can instruct the depositary to vote your
Ordinary Shares. In addition, the depositary and its agents are not
responsible for failing to carry out voting instructions or for the
manner of carrying out voting instructions provided that any such
failure is in good faith. This means that you may not be able to
exercise your right to vote and there may be nothing you can do if
your Ordinary Shares are not voted as you requested.
In order to give you a reasonable opportunity to instruct the
depositary as to the exercise of voting rights relating to
deposited securities, if we request the depositary to act, we will
try to give the depositary notice of any such meeting and details
concerning the matters to be voted upon sufficiently in advance of
the meeting date.
Except as described above, you will not be able to exercise your
right to vote unless you withdraw the Ordinary Shares. However, you
may not know about the shareholder meeting far enough in advance to
withdraw the Ordinary |Shares.
Fees and Expenses
What fees and expenses will you be responsible for
paying?
Pursuant to the terms of the deposit agreement, the holders of
Depositary Shares will be required to pay the following fees:
Persons depositing or withdrawing our ordinary
shares or depositary share holders must pay: |
|
For: |
5.00 USD (or
less) per 100 Depositary Shares (or portion of 100 Depositary
Shares) |
|
Issue of
Depositary Shares, including issues resulting from a distribution
of our ordinary shares or rights or other property |
|
|
Cancellation of Depositary Shares
for the purpose of withdrawal, including if the deposit agreement
terminates |
0.05 USD (or
less) per Depositary Share |
|
Any cash
distribution to Depositary Share holders |
A fee
equivalent to the fee that would be payable if securities
distributed to Depositary Share holders had been our Ordinary
Shares and the Ordinary Shares had been deposited for issuance of
Depositary Shares |
|
Distribution
of securities distributed to holders of deposited securities
(including rights) that are distributed by the depositary to
Depositary Share holders |
0.05 USD (or
less) per Depositary Share per calendar year |
|
Depositary
services |
Registration
or transfer fees |
|
Transfer
and registration of shares of our Ordinary Shares on our share
register to or from the name of the depositary or its agent when
persons deposit or withdraw our Ordinary Shares |
Expenses of
the Depositary |
|
Cable and
facsimile transmissions (when expressly provided in the deposit
agreement) |
|
|
Converting foreign currency to U.S.
dollars |
Taxes and
other governmental charges the depositary or the custodian has to
pay on any Depositary Share or our Ordinary Shares underlying
Depositary Shares, such as stock transfer taxes, stamp duty or
withholding taxes |
|
As
necessary |
Any charges
incurred by the depositary or its agents for servicing the
deposited securities |
|
As
necessary |
The depositary collects its fees for delivery and surrender of
Depositary Shares directly from investors depositing our Ordinary
Shares or surrendering Depositary Shares for the purpose of
withdrawal or from intermediaries acting for them. The depositary
collects fees for making distributions to investors by deducting
those fees from the amounts distributed or by selling a portion of
distributable property to pay the fees. The depositary may collect
its annual fee for depositary services by deduction from cash
distributions or by directly billing investors or by charging the
book-entry system accounts of participants acting for them. The
depositary may collect any of its fees by deduction from any cash
distribution payable (or by selling a portion of securities or
other property distributable) to Depositary Share holders that are
obligated to pay those fees. The depositary may generally refuse to
provide fee-attracting services until its fees for those services
are paid.
In performing its duties under the deposit agreement, the
depositary may use brokers, dealers, foreign currency dealers or
other service providers that are owned by or affiliated with the
depositary and that may earn or share fees, spreads or
commissions.
The depositary may convert currency itself or through any of its
affiliates and, in those cases, acts as principal for its own
account and not as agent, advisor, broker or fiduciary on behalf of
any other person and earns revenue, including, without limitation,
transaction spreads, that it will retain for its own account. The
revenue is based on, among other things, the difference between the
exchange rate assigned to the currency conversion made under the
deposit agreement and the rate that the depositary or its affiliate
receives when buying or selling foreign currency for its own
account. The depositary makes no representation that the exchange
rate used or obtained in any currency conversion under the deposit
agreement will be the most favorable rate that could be obtained at
the time or that the method by which that rate will be determined
will be the most favorable to Depositary Share holders, subject to
the depositary’s obligations under the deposit agreement. The
methodology used to determine exchange rates used in currency
conversions is available upon request.
The depositary has agreed to reimburse us for a portion of certain
expenses it incurs that are related to establishment and
maintenance of the ADR program. There are limits on the amount of
expenses for which the depositary will reimburse us, but the amount
of reimbursement available to us is not related to the amounts of
fees the depositary collects from investors. Further, the
depositary has agreed to reimburse us certain fees payable to the
depositary by holders of Depositary Shares. Neither we nor the
depositary can determine the exact amount to be made available to
us because (i) the number of Depositary Shares that will be
issued and outstanding, (ii) the level of service fees to be
charged to holders of Depositary Shares and (iii) its
reimbursable expenses related to the program are not known at this
time.
Payment of Taxes
Depositary Share holders will be responsible for any taxes or other
governmental charges payable on their Depositary Shares or on the
deposited securities represented by any of their Depositary Shares.
The depositary may refuse to register any transfer of Depositary
Shares or allow a Depositary Share holder to withdraw the deposited
securities represented by his or her Depositary Shares until those
taxes or other charges are paid. It may apply payments owed to such
Depositary Share holder or sell deposited securities represented by
such Depositary Share holder’s Depositary Shares to pay any taxes
owed and such Depositary Share holder will remain liable for any
deficiency. If the depositary sells deposited securities, it will,
if appropriate, reduce the number of Depositary Shares to reflect
the sale and pay to Depositary Share holders any proceeds, or send
to Depositary Share holders any property, remaining after it has
paid the taxes.
Reclassifications, Recapitalizations and Mergers
If we: |
|
Then: |
· Change
the nominal or par value of our Ordinary Shares |
|
The cash,
Ordinary Shares or other securities received by the depositary will
become deposited securities. |
· Reclassify,
split up or consolidate any of the deposited securities |
|
Each
Depositary Share will automatically represent its equal share of
new deposited securities. |
· Distribute
securities on the Ordinary Shares that are not distributed to
you |
|
The depositary
may also deliver new Depositary Shares or ask you to surrender your
outstanding ADRs in exchange for new ADRs identifying the new
deposited securities. The depositary may also sell the new
deposited securities and distribute the net proceeds if we are
unable to assure the depositary that the distribution (a) does not
require registration under the Securities Act or (b) is exempt from
registration under the Securities Act. |
· Recapitalize,
reorganize, merge, liquidate, sell all or substantially all of our
assets, or take any similar action |
|
Any replacement securities
received by the depositary shall be treated as newly deposited
securities and either the existing Depositary Shares or, if
necessary, replacement Depositary Shares distributed by the
depositary will represent the replacement securities. The
depositary may also sell the replacement securities and distribute
the net proceeds if the replacement securities may not be lawfully
distributed to all Depositary Share holders. |
Amendment and Termination
How may the deposit agreement be amended?
We may agree with the depositary to amend the deposit agreement and
the ADRs without your consent for any reason. If an amendment adds
or increases fees or charges, except for taxes and other
governmental charges or expenses of the depositary for registration
fees, facsimile costs, delivery charges or similar items, or
prejudices a substantial right of Depositary Share holders, it will
not become effective for outstanding Depositary Shares until 30
days after the depositary notifies Depositary Share holders of the
amendment. At the time an amendment becomes effective, you are
considered, by continuing to hold your Depositary Shares, to agree
to the amendment and to be bound by the ADRs and the deposit
agreement as amended.
How may the deposit agreement be terminated?
The depositary will terminate the deposit agreement at our
direction by mailing notice of termination to the Depositary Share
holders then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The depositary may also
terminate the deposit agreement by mailing a notice of termination
to us and the Depositary Share holders if 60 days have passed since
the depositary told us it wants to resign but a successor
depositary has not been appointed and accepted its appointment.
After termination, the depositary and its agents will do the
following under the deposit agreement but nothing else: collect
distributions on the deposited securities, sell rights and other
property, and deliver Ordinary Shares and other deposited
securities upon cancellation of Depositary Shares. Four months
after termination, the depositary may sell any remaining deposited
securities by public or private sale. After that, the depositary
will hold the money it received on the sale, as well as any other
cash it is holding under the deposit agreement for the pro rata
benefit of the Depositary Share holders that have not surrendered
their Depositary Shares. It will not invest the money and has no
liability for interest. The depositary’s only obligations will be
to account for the money and other cash. After termination our only
obligations under the deposit agreement will be to indemnify the
depositary and to pay fees and expenses of the depositary that we
agreed to pay and we will not have any obligations thereunder to
current or former Depositary Share holders.
Limitations on Obligations and Liability
Limits on our Obligations and the Obligations of the
Depositary; Limits on Liability to Holders of Depositary
Shares
The deposit agreement expressly limits our obligations and the
obligations of the depositary. It also limits our liability and the
liability of the depositary. We and the depositary:
|
· |
are only obligated to take the
actions specifically set forth in the deposit agreement without
negligence or bad faith; |
|
· |
are not liable if we are or it is
prevented or delayed by law or by events or circumstances beyond
our or its ability to prevent or counteract with reasonable care or
effort from performing our or its obligations under the deposit
agreement; |
|
· |
are not liable if we or it
exercises discretion permitted under the deposit agreement; |
|
· |
are not liable for the inability of
any holder of Depositary Shares to benefit from any distribution on
deposited securities that is not made available to holders of
Depositary Shares under the terms of the deposit agreement, or for
any special, consequential or punitive damages for any breach of
the terms of the deposit agreement; |
|
· |
have no obligation to become
involved in a lawsuit or other proceeding related to the Depositary
Shares or the deposit agreement on your behalf or on behalf of any
other person; |
|
· |
may rely upon any documents we
believe or it believes in good faith to be genuine and to have been
signed or presented by the proper person; |
|
· |
are not liable for the acts or
omissions of any securities depository, clearing agency or
settlement system; and |
|
· |
the depositary has no duty to make
any determination or provide any information as to our tax status,
or any liability for any tax consequences that may be incurred by
Depositary Share holders as a result of owning or holding
Depositary Shares or be liable for the inability or failure of a
Depositary Share holder to obtain the benefit of a foreign tax
credit, reduced rate of withholding or refund of amounts withheld
in respect of tax or any other tax benefit. |
In the deposit agreement, we and the depositary agree to indemnify
each other under certain circumstances. Additionally, we, the
depositary and each owner and holder, to the fullest extent
permitted by applicable law, waive the right to a jury trial in an
action against us or the depositary arising out of or relating to
the deposit agreement.
Requirements for Depositary Actions
Before the depositary will deliver or register a transfer of
Depositary Shares, make a distribution on Depositary Shares, or
permit withdrawal of Ordinary Shares, the depositary may
require:
|
· |
payment of stock transfer or other
taxes or other governmental charges and transfer or registration
fees charged by third parties for the transfer of any ordinary
shares or other deposited securities; |
|
· |
satisfactory proof of the identity
and genuineness of any signature or other information it deems
necessary; and |
|
· |
compliance with regulations it may
establish, from time to time, consistent with the deposit
agreement, including presentation of transfer documents. |
The depositary may refuse to deliver Depositary Shares or register
transfers of Depositary Shares when the transfer books of the
depositary or our transfer books are closed or at any time if the
depositary or we think it advisable to do so.
Your Right to Receive the Ordinary Shares Underlying your
Depositary Shares
Depositary Share holders have the right to cancel their Depositary
Shares and withdraw the underlying Ordinary Shares at any time
except:
|
· |
when temporary delays arise
because: (i) the depositary has closed its transfer books or we
have closed our transfer books; (ii) the transfer of Ordinary
Shares is blocked to permit voting at a shareholders’ meeting; or
(iii) we are paying a dividend on our Ordinary Shares; |
|
· |
when you owe money to pay fees,
taxes and similar charges; or |
|
· |
when it is necessary to prohibit
withdrawals in order to comply with any laws or governmental
regulations that apply to Depositary Shares or to the withdrawal of
Ordinary Shares or other deposited securities. |
This right of withdrawal may not be limited by any other provision
of the deposit agreement.
Pre-release of Depositary Shares
The deposit agreement permits the depositary to deliver Depositary
Shares before deposit of the underlying Ordinary Shares. This is
called a pre-release of the Depositary Shares. The
depositary may also deliver Ordinary Shares upon cancellation
of pre-released Depositary Shares (even if the Depositary
Shares are canceled before the pre-release transaction
has been closed out). A pre-release is closed out as soon
as the underlying Ordinary Shares are delivered to the
depositary.
The depositary may receive Depositary Shares instead of Ordinary
Shares to close out a pre-release. The depositary
may pre-release Depositary Shares only under the
following conditions: (1) before or at the time of
the pre-release, the person to whom
the pre-release is being made represents to the
depositary in writing that it or its customer owns the ordinary
shares or Depositary Shares to be deposited;
(2) the pre-release is fully collateralized with
cash or other collateral that the depositary considers appropriate;
and (3) the depositary must be able to close out
the pre-release on not more than five business days’
notice. In addition, the depositary will limit the number of
Depositary Shares that may be outstanding at any time as a result
of prerelease to 30% of the number of deposited shares, although
the depositary may disregard this limit from time to time if it
determines it is appropriate to do so.
Direct Registration System
In the deposit agreement, all parties to the deposit agreement
acknowledge that the DRS and Profile Modification System, or
Profile, will apply to uncertificated Depositary Shares upon
acceptance thereof to DRS by DTC. DRS is the system administered by
DTC under which the depositary may register the ownership of
uncertificated Depositary Shares and such ownership will be
evidenced by periodic statements sent by the depositary to the
registered holders of uncertificated Depositary Shares. Profile is
a required feature of DRS that allows a DTC participant, claiming
to act on behalf of a registered holder of Depositary Shares, to
direct the depositary to register a transfer of those Depositary
Shares to DTC or its nominee and to deliver those Depositary Shares
to the DTC account of that DTC participant without receipt by the
depositary of prior authorization from the Depositary Share holder
to register that transfer.
In connection with and in accordance with the arrangements and
procedures relating to DRS/Profile, the parties to the deposit
agreement understand that the depositary will not determine whether
the DTC participant that is claiming to be acting on behalf of an
Depositary Share holder in requesting registration of transfer and
delivery described in the paragraph above has the actual authority
to act on behalf of the Depositary Share holder (notwithstanding
any requirements under the Uniform Commercial Code). In the deposit
agreement, the parties agree that the depositary’s reliance on and
compliance with instructions received by the depositary through the
DRS/Profile System and in accordance with the deposit agreement
will not constitute negligence or bad faith on the part of the
depositary.
Shareholder Communications; Inspection of Register of Holders of
Depositary Shares
The depositary will make available for your inspection at its
office all communications that it receives from us as a holder of
deposited securities that we make generally available to holders of
deposited securities. The depositary will send you copies of those
communications or otherwise make those communications available to
you if we ask it to. You have a right to inspect the register of
holders of Depositary Shares, but not for the purpose of contacting
those holders about a matter unrelated to our business or the
Depositary Shares.
PLAN OF DISTRIBUTION
We are registering the Ordinary Shares represented by Depositary
Shares issuable upon exercise of the October Private Placement
Warrants, May Private Placement Warrants, Wainwright October
Warrants and Wainwright May Warrants to permit the resale of the
Ordinary Shares represented by Depositary Shares by the holders of
these warrants from time to time after the date of this prospectus.
We will not receive any of the proceeds from the sale by the
selling shareholders of the Ordinary Shares represented by
Depositary Shares other than proceeds from the cash exercise of the
October Private Placement Warrants, May Private Placement Warrants,
Wainwright October Warrants and Wainwright May Warrants.
The selling shareholders and any of their pledgees, assignees and
successors-in-interest may sell all or a portion of the Ordinary
Shares represented by Depositary Shares beneficially owned by them
and offered hereby from time to time in one or more transactions at
fixed prices, at prevailing market prices at the time of the sale,
at varying prices determined at the time of sale, or at negotiated
prices. These sales may be effected in transactions, which may
involve crosses or block transactions,
|
· |
on any national securities exchange
or quotation service on which the securities may be listed or
quoted at the time of sale; |
|
· |
in the over-the-counter
market; |
|
· |
in transactions otherwise than on
these exchanges or systems or in the over-the-counter market; |
|
· |
through the writing of options,
whether such options are listed on an options exchange or
otherwise; |
|
· |
ordinary brokerage transactions and
transactions in which the broker-dealer solicits purchasers; |
|
· |
block trades in which the
broker-dealer will attempt to sell the Ordinary Shares represented
by Depositary Shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction; |
|
· |
purchases by a broker-dealer as
principal and resale by the broker-dealer for its account; |
|
· |
an exchange distribution in
accordance with the rules of the applicable exchange; |
|
· |
privately negotiated
transactions; |
|
· |
settlement of short sales; |
|
· |
sales pursuant to Rule 144; |
|
· |
in transactions through
broker-dealers that agree with the selling shareholders to sell a
specified number of such shares at a stipulated price per
share; |
|
· |
through the writing or settlement
of options or other hedging transaction, whether through an options
exchange or otherwise; |
|
· |
a combination of any such methods
of sale; and |
|
· |
any other method permitted pursuant
to applicable law. |
The selling shareholders and any of their pledgees, assignees and
successors-in-interest may also sell all or a portion of the
Ordinary Shares represented by Depositary Shares beneficially owned
by them and offered hereby from time to time directly or through
one or more underwriters, broker-dealers or agents. If the Ordinary
Shares represented by Depositary Shares are sold through
underwriters or broker-dealers, the selling shareholders will be
responsible for underwriting discounts or commissions or agent’s
commissions.
If the selling shareholders effect such transactions by selling
Ordinary Shares represented by Depositary Shares to or through
underwriters, broker-dealers or agents, such underwriters,
broker-dealers or agents may receive commissions in the form of
discounts, concessions or commissions from the selling shareholders
or commissions from purchasers of the Ordinary Shares represented
by Depositary Shares for whom they may act as agent or to whom they
may sell as principal (which discounts, concessions or commissions
as to particular underwriters, broker-dealers or agents may be in
excess of those customary in the types of transactions involved).
In connection with sales of Ordinary Shares represented by
Depositary Shares or otherwise, the selling shareholders may enter
into hedging transactions with broker-dealers, which may in turn
engage in short sales of the Ordinary Shares represented by
Depositary Shares in the course of hedging in positions they
assume. The selling shareholders may also sell Ordinary Shares
represented by Depositary Shares short and deliver Ordinary Shares
represented by Depositary Shares covered by this prospectus to
close out short positions and to return borrowed shares in
connection with such short sales. The selling shareholders may also
loan or pledge Ordinary Shares represented by Depositary Shares to
broker-dealers that in turn may sell such shares.
The selling shareholders may pledge or grant a security interest in
some or all of the October Private Placement Warrants, May Private
Placement Warrants, Wainwright October Warrants and Wainwright May
Warrants or Depositary Shares owned by them and, if they default in
the performance of their secured obligations, the pledgees or
secured parties may offer and sell the Ordinary Shares represented
by Depositary Shares from time to time pursuant to this prospectus
or any amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act, amending, if necessary,
the list of selling shareholders to include the pledgee, transferee
or other successors in interest as selling shareholders under this
prospectus. The selling shareholders also may transfer and donate
the Ordinary Shares represented by Depositary Shares in other
circumstances in which case the transferees, donees, pledgees or
other successors in interest will be the selling beneficial owners
for purposes of this prospectus.
The selling shareholders and any broker-dealer participating in the
distribution of the Ordinary Shares represented by Depositary
Shares may be deemed to be “underwriters” within the meaning of the
Securities Act, and any commission paid, or any discounts or
concessions allowed to, any such broker-dealer may be deemed to be
underwriting commissions or discounts under the Securities Act.
Each selling shareholder has informed the Company that it does not
have any written or oral agreement or understanding, directly or
indirectly, with any person to distribute the securities.
Under the securities laws of some states Ordinary Shares
represented by Depositary Shares may be sold in such states only
through registered or licensed brokers or dealers. In addition, in
some states ordinary shares represented by Depositary Shares may
not be sold unless such Ordinary Shares have been registered or
qualified for sale in such state or an exemption from registration
or qualification is available and is complied with.
There can be no assurance that any selling shareholder will sell
any or all of the Ordinary Shares represented by Depositary Shares
registered pursuant to the registration statement, of which this
prospectus forms a part.
The selling shareholders and any other person participating in such
distribution will be subject to applicable provisions of the
Exchange Act, and the rules and regulations thereunder, including,
without limitation, Regulation M of the Exchange Act, which may
limit the timing of purchases and sales of any of the Ordinary
Shares represented by Depositary Shares by the selling shareholders
and any other participating person. Regulation M may also restrict
the ability of any person engaged in the distribution of the
Ordinary Shares represented by Depositary Shares to engage in
market-making activities with respect to the Ordinary Shares
represented by Depositary Shares. All of the foregoing may affect
the marketability of the Ordinary Shares represented by Depositary
Shares and the ability of any person or entity to engage in
market-making activities with respect to the Ordinary Shares
represented by Depositary Shares.
We will pay all expenses of the registration of the Ordinary
Shares, including, without limitation, SEC filing fees and expenses
of compliance with state securities or “blue sky” laws; provided,
however, that each selling shareholder will pay all underwriting
discounts and selling commissions, if any, and any related
legal expenses incurred by it.
Once sold under the registration statement, of which this
prospectus forms a part, the Ordinary Shares represented by
Depositary Shares will be freely tradable in the hands of persons
other than our affiliates.
LEGAL
MATTERS
Brown Rudnick LLP, London, United Kingdom has passed upon certain
legal matters regarding the securities offered hereby. If the
securities are distributed in an underwritten offering, certain
legal matters will be passed upon for the underwriters by counsel
identified in the applicable prospectus supplement.
EXPERTS
The financial statements as of December 31, 2021, and for the each
of the two years in the period then ended, incorporated by
reference into this prospectus have been so incorporated in
reliance on a report of Mazars LLP, an independent registered
accounting firm, given on authority of said firm as experts in
auditing and accounting. The report on the financial statements for
the year ended December 31, 2021 contains an explanatory paragraph
regarding our ability to continue as a going concern.
Mazars LLP, London, United Kingdom, is a member of the Institute of
Chartered Accountants in England and Wales.
The financial statements as of December 31, 2019 and for the year
then ended, incorporated in this prospectus by reference to the
Annual Report on Form 20-F for the year ended December 31, 2021,
have been so incorporated in reliance on the report of BDO LLP, an
independent registered public accounting firm, given on the
authority of said firm as experts in auditing and accounting. The
report on the consolidated financial statements for the year ended
December 31, 2019 contains an explanatory paragraph regarding our
ability to continue as a going concern.
BDO LLP, Reading, United Kingdom, is a member of the Institute of
Chartered Accountants in England and Wales.
WHERE YOU CAN FIND MORE
INFORMATION
We have filed with the SEC a registration statement on Form
F-1, including amendments and relevant exhibits and schedules,
under the Securities Act covering the Ordinary Shares represented
by Depositary Shares to be sold in this offering. This prospectus,
which constitutes a part of the registration statement, summarizes
material provisions of contracts and other documents that we refer
to in the prospectus. Since this prospectus does not contain all of
the information contained in the registration statement, you should
read the registration statement and its exhibits and schedules for
further information with respect to us and our Ordinary Shares and
the Depositary Shares.
We are subject to periodic reporting and other informational
requirements of the Exchange Act, as applicable to foreign private
issuers. Accordingly, we are required to file reports, including
annual reports on Form 20-F, and other information with the SEC. As
a foreign private issuer, we are exempt from the rules of the
Exchange Act prescribing the furnishing and content of proxy
statements to shareholders under the federal proxy rules contained
in Sections 14(a), (b) and (c) of the Exchange Act, and
our “insiders” are exempt from the reporting and short-swing profit
recovery provisions contained in Section 16 of the Exchange
Act. The SEC maintains an Internet site that contains reports,
proxy, information statements and other information regarding
issuers at http://www.sec.gov. You can review our SEC filings and
the registration statement by accessing this website. Copies of
certain information filed by us with the SEC are also available on
our website at http://www.midatechpharma.com. Our website is not a
part of this prospectus and is not incorporated by reference in
this prospectus.
INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE
The SEC allows us to “incorporate by reference” the information we
file with the SEC, which 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 an important part of this prospectus. We incorporate by
reference, as of their respective dates of filing, the documents
listed below that we have filed with the SEC and any documents that
we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this prospectus and prior to
the termination of the offering of securities under this prospectus
(except in each case the information contained in such documents to
the extent “furnished” and not “filed”):
|
· |
our Annual Report on Form 20-F for
the fiscal year ended December 31, 2021, filed with the SEC on
April 26, 2022; |
|
· |
our Reports on Form 6-K furnished
to the SEC on January 18, 2022, March 8, 2022, March 9, 2022, and
April 14, 2022, to the extent expressly incorporated by reference
into our effective registration statement filed by us under the
Securities Act; and |
|
· |
the description of our Ordinary
Shares and Depositary Shares contained in our registration
statement on Form 8-A, originally filed with the SEC on December 2,
2015, and as amended on April 30, 2021 (including any amendments
and reports filed for the purpose of updating such
description). |
Any statement contained in any document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained in this
prospectus modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
We may incorporate by reference into this prospectus, any Form 6-K
meeting the requirements of Form F-1 which is submitted to the SEC
after the date of this prospectus and before the date of
termination of this offering. Any such Form 6-K which we intend to
so incorporate shall state in such form that it is being
incorporated by reference into this prospectus.
We will provide, without charge to each person, including any
beneficial owner, to whom this prospectus is delivered, upon
written or oral request of such person, a copy of any or all of the
documents incorporated or deemed to be incorporated herein by
reference other than exhibits, unless such exhibits specifically
are incorporated by reference into such documents or this document.
Requests for such documents should be addressed in writing or by
telephone to:
Midatech Pharma PLC
1 Caspian Point
Caspian Way
Cardiff, CF10 4DQ, United Kingdom
+44
29 2048 0180
ENFORCEMENT OF CIVIL
LIABILITIES
We are incorporated under the laws of England and Wales. All of our
directors and officers of are residents of jurisdictions outside
the United States. Our corporate headquarters is located in the
United Kingdom and all or a substantial portion of our assets, and
all or a substantial portion of the assets of our directors and
officers, are located outside of the United States. As a result, it
may be difficult for you to serve legal process on us or our
directors or have any of them appear in a U.S. court.
We understand that in England it may not be possible to bring
proceedings or enforce a judgment of a U.S. court in respect of
civil liabilities based solely on the federal securities laws of
the United States. In addition, awards of punitive damages in
actions brought in the United States or elsewhere may be
unenforceable in England. An award of damages is usually considered
to be punitive if it does not seek to compensate the claimant for
loss or damage suffered and is instead intended to punish the
defendant. In addition to public policy aspects of enforcement,
such as the aforementioned, the enforceability of any judgment in
England will depend on the particular facts of the case and the
relevant circumstances, for example (and expressly without
limitation), whether there are any relevant insolvency proceedings
which may affect the ability to enforce a judgment. In addition,
the United States and the United Kingdom have not currently entered
into a treaty (or convention) providing for the reciprocal
recognition and enforcement of judgments (although both are
contracting states to the New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards).
We have appointed Donald J. Puglisi as our authorized agent upon
whom process may be served in any action instituted in any U.S.
federal or state court having subject matter jurisdiction arising
out of or based upon the securities offered by this prospectus.
EXPENSES OF THE OFFERING
The following table sets forth the expenses payable by us in
connection with the sale and distribution of the securities being
registered hereby. All amounts shown, other than the SEC
registration fee, are estimates:
SEC registration fee |
$ |
642.67 |
Printing and engraving |
|
5,000 |
Accounting services |
|
20,000 |
Legal fees and expenses |
|
40,000 |
Miscellaneous |
|
5,000 |
Total |
$ |
70,642.67 |
, 2022
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
Item 6. |
Indemnification of Directors and Officers. |
The Registrant’s articles of association provide that, subject to
the United Kingdom Companies Act 2006, every person who is or was
at any time a director, alternate director, or former director of
the Registrant or of any of its subsidiaries may be indemnified out
of the assets of the Registrant against all costs, charges,
expenses, losses, damages and liabilities incurred by him or her in
performing his duties or the exercise of his or her powers or
otherwise in relation to such company. Generally, under the United
Kingdom Companies Act 2006, a company may not indemnify its
directors against personal liability covering: liability to the
company in cases where the company sues the director (i.e., only
liability to third parties can be the subject of an indemnity);
liability for fines for criminal conduct or fines imposed by a
regulator; or other liabilities, such as legal costs, in criminal
cases where the director is convicted, or in civil cases brought by
the company where the final judgment goes against the director.
The Registrant has entered into a deed of indemnity with each of
its directors and officers. Except as prohibited by applicable law,
these deeds of indemnity may require Midatech, among other things,
to indemnify its directors and officers for certain expenses,
including attorneys’ fees, judgments, fines and settlement amounts
incurred by such directors and officers in any action or proceeding
arising out of their service as a director or officer of the
Registrant, or one of its subsidiaries, or arising out of the
services provided to another company or enterprise at the
Registrant’s request.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors,
officers or persons controlling us pursuant to the foregoing
provisions, we have been informed that in the opinion of the SEC
such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
|
Item 7. |
Recent Sales of Unregistered
Securities |
The following information is furnished with regard to all
securities issued by the registrant within the last three years
that were not registered under the Securities Act of 1933, as
amended. Unless otherwise indicated below, the issuance of such
shares was deemed exempt from registration requirements of the
Securities Act, of 1933, as amended, as such securities were
offered and sold outside of the United States to persons who were
neither citizens nor residents of the United States, pursuant to
Regulation S, or such sales were exempt from registration under
Section 4(2) of Securities Act of 1933, as amended and Rule 506 of
Regulation D promulgated thereunder.
On October 8, 2019, we issued 25,000 Ordinary Shares for purchase
by the Midatech Pharma Share Incentive Plan.
On October 25, 2019, we sold to an institutional investor 3,000,000
Ordinary Shares represented by 600,000 Depositary Shares in a
registered direct offering at $5.00 per Depositary Share, resulting
in gross proceeds of $3.0 million. In addition, we issued to the
investor unregistered warrants to purchase a total of 3,000,000
Ordinary Shares represented by 600,000 Depositary Shares in a
private placement. The warrants were exercisable on December 23,
2019 and may be exercised for a period of five and one-half years
from the exercise date. The warrants have an exercise price of
$6.25 per Depositary Share, subject to adjustment as set forth
therein. We paid an aggregate of $309,806 in placement agent fees
and expenses and also issued unregistered placement agent warrants
to purchase a total of 150,000 Ordinary Shares represented by
30,000 Depositary Shares to affiliates of H.C. Wainwright &
Co., Inc. in a private placement, on the same terms as the
warrants, except they expire on October 22, 2024.
On May 20, 2020, we sold to certain institutional investors
9,090,910 Ordinary Shares represented by 1,181,182 Depositary
Shares in a registered direct offering at $1.65 per Depositary
Share, resulting in gross proceeds of $3.0 million. In addition, we
issued to the investors unregistered warrants to purchase a total
of 9,090,910 Ordinary Shares represented by 1,181,182 Depositary
Shares in a private placement. The warrants were exercisable upon
issuance and may be exercised for a period of five and one-half
years from the exercise date. The warrants have an exercise price
of $2.05 per Depositary Share, subject to adjustment as set forth
therein. We paid an aggregate of $462,000 in placement agent fees
and expenses and also issued unregistered placement agent warrants
to purchase a total of 454,546 Ordinary Shares represented by
90,909 Depositary Shares to affiliates of H.C. Wainwright &
Co., Inc. in a private placement, on the same terms as the
warrants, except the exercise price is $2.0625 per Depositary Share
and they expire on May 18, 2025.
On May 22, 2020, we issued 6,666,666 Units to certain non-U.S.
investors in a placing in the United Kingdom for aggregate gross
proceeds of £1.8 million. Each Unit comprised one new Ordinary
Share and one warrant to purchase Ordinary Shares with an exercise
price of £0.34 per share. We paid an aggregate of £165,000 in
placement agent fees and expenses and also issued unregistered
placement agent warrants to purchase a total of 333,333 Ordinary
Shares to Turner Pope Investments (TPI) Limited, or Turner Pope,
with an exercise price is £0.34 per Ordinary Share and they have a
term of five and one-half years.
On July 27, 2020, we issued 21,296,295 Ordinary Shares, including
2,777,777 Ordinary Shares issued pursuant to a broker option, to
certain non-U.S. investors in a placing in the United Kingdom for
aggregate gross proceeds of £5.75 million. We paid an aggregate of
£432,500 in placement agent fees and expenses to Turner Pope.
On July 6, 2021, we issued 35,087,720 Ordinary Shares to certain
non-U.S. investors in a placing in the United Kingdom for aggregate
gross proceeds of £10.0 million. We paid an aggregate of £1.0
million in placement agent fees and expenses to Turner Pope.
|
Item 8. |
Exhibits and Financial Statement
Schedules |
|
(a) |
The Exhibit Index is incorporated
herein by reference. |
See the Exhibit Index attached to this registration statement,
which is incorporated herein by reference.
|
(b) |
Financial Statement Schedules. |
Schedules not listed above have been omitted because the
information required to be set forth therein is not applicable or
is shown in the financial statements or the notes thereto.
The undersigned Registrant hereby undertakes:
|
(1) |
To file, during any period in which
offers or sales are being made, a post-effective amendment to this
registration statement: |
|
(i) |
to include any prospectus required
by section 10(a)(3) of the Securities Act; |
|
(ii) |
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) if, in the aggregate,
the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective
registration statement; and |
|
(iii) |
to include any material information
with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement; |
Provided, however, that:
|
(A) |
Paragraphs (1)(i) and (1)(ii) of
this section do not apply if the registration statement is on Form
S-8, 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 |
|
(B) |
Paragraphs (1)(i), (a)(1)(ii) and
(1)(iii) of this section do not apply if the registration statement
is on Form S-3 or Form F-3 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) that is part of the
registration statement. |
|
(C) |
Provided further, however, that
paragraphs (1)(i) and (1)(ii) do not apply if the registration
statement is for an offering of asset-backed securities on Form S-1
or Form S-3, and the information required to be included in a
post-effective amendment is provided pursuant to Item 1100(c) of
Regulation. |
|
(2) |
That, for the purpose of
determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. |
|
(3) |
To remove from registration by
means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering. |
|
(4) |
To file a post-effective amendment
to the registration statement to include any financial statements
required by Item 8.A. of Form 20-F at the start of any delayed
offering or throughout a continuous offering. Financial statements
and information otherwise required by Section 10(a)(3) of the
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. |
|
(5) |
That, for the purpose of
determining liability under the Securities Act of 1933 to any
purchaser: |
|
(i) |
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 |
|
(ii) |
Each prospectus required to be
filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a
registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by section 10(a) of
the Securities Act 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. |
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the SEC 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 of 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.
The undersigned registrant hereby undertakes that:
|
(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. |
|
(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. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant has duly caused this Post-Effective
Amendment No. 2 to the Registration Statement on Form F-1 to be
signed on its behalf by the undersigned, thereunto duly authorized,
in London, United Kingdom, on this 26th day of April,
2022.
|
MIDATECH PHARMA
PLC |
|
|
|
|
By: |
/s/
Stephen Stamp |
|
|
Stephen Stamp |
|
|
Chief Executive
Officer & Chief Financial Officer |
|
|
|
|
|
|
|
|
|
|
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Post-Effective Amendment No. 2 to the Registration
Statement on Form F-1 has been signed by the following persons in
the capacities and on the date indicated.
Name and Signature |
|
Title(s) |
|
Date |
|
|
|
|
|
/s/
Stephen Stamp |
|
Chief Executive Officer & Chief
Financial Officer, Director |
|
April 26, 2022
|
Stephen Stamp |
|
(Principal Executive Officer and
Principal Financial Officer) |
|
|
|
|
|
|
|
|
|
|
|
|
* |
|
Non-Executive Chairman of the Board |
|
April 26, 2022
|
Rolf Stahel |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
* |
|
Senior Independent Non-Executive Director |
|
April 26, 2022
|
Simon Turton, Ph.D. |
|
|
|
|
|
|
|
|
|
* |
|
Non-Executive Director |
|
April 26, 2022
|
Sijmen de Vries, M.D. |
|
|
|
|
*By: |
/s/ Stephen Stamp |
|
|
Stephen Stamp |
|
|
Attorney-in-fact |
|
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Post-Effective Amendment No. 2 to the Registration
Statement on Form F-1 has been signed by the undersigned on this
26th day of April, 2022.
By: |
/s/ Donald J. Puglisi |
|
Name: |
Donald J. Puglisi |
|
Title: |
Authorized Representative in the
United States |
|
Exhibit Index
Exhibit
Number
|
Title
|
|
|
3.1 |
Articles of Association of Midatech Pharma PLC (incorporated by
reference to Exhibit 3.1 to the Company’s Registration Statement on
Form F-4 (File No. 333-206305), originally filed with the SEC on
August 11, 2015, as amended). |
4.1 |
Specimen certificate representing ordinary shares of Midatech
Pharma PLC (incorporated by reference to Exhibit 4.1 to the
Company’s Registration Statement on Form F-4 (File No. 333-206305),
originally filed with the SEC on August 11, 2015, as
amended). |
4.2 |
Form of Amended and Restated Deposit Agreement by and among
Midatech Pharma PLC, The Bank of New York Mellon, as depositary,
and all owners and holders from time to time of American Depositary
Shares thereunder (incorporated by reference to Exhibit A to the
Company’s Registration Statement on Form F-6 (File No. 333-252507),
filed with the SEC on January 28, 2021. |
4.3 |
Form of American Depositary Receipt (included in Exhibit 2.3 as
Exhibit A thereto). |
4.4 |
Form of Warrant Assumption Agreement by and between Midatech Pharma
PLC and DARA BioSciences, Inc. (incorporated by reference to
Exhibit 4.4 to the Company’s Registration Statement on Form F-4
(File No. 333-206305), originally filed with the SEC on August 11,
2015, as amended). |
4.5 |
Form of “Phase 2b” Common Stock Purchase Warrant issued to General
Hospital Corporation d/b/a Massachusetts General Hospital
(incorporated by reference to Exhibit 4.1 to DARA BioSciences,
Inc.’s Current Report on Form 8-K filed with the SEC on December
15, 2014). |
4.6 |
Form of “FDA Approval” Common Stock Purchase Warrant issued to
General Hospital Corporation d/b/a Massachusetts General Hospital
(incorporated by reference to Exhibit 4.2 to DARA BioSciences,
Inc.’s Current Report on Form 8-K filed with the SEC on December
15, 2014). |
4.7 |
Form of Warrant issued on October 25, 2019 (incorporated by
reference to Exhibit 4.1 of the Company’s Report on Form 6-K, filed
with the SEC on October 24, 2019).
|
4.8 |
Form of Placement Agent Warrant issued on October 25, 2019
(incorporated by reference to Exhibit 4.2 of the Company’s Report
on Form 6-K, filed with the SEC on October 24, 2019).
|
4.9 |
Form of Warrant issued on May 20, 2020 (incorporated by reference
to Exhibit 4.1 of the Company’s Report on Form 6-K, filed with the
SEC on May 19, 2020).
|
4.10 |
Form of Placement Agent Warrant issued on May 20, 2020
(incorporated by reference to Exhibit 4.2 of the Company’s Report
on Form 6-K, filed with the SEC on May 19, 2020).
|
4.11 |
Form of Warrant Instrument issued on May 22, 2020 (incorporated by
reference to Exhibit 4.3 of the Company’s Report on Form 6-K, filed
with the SEC on May 19, 2020).
|
5.1* |
Opinion of Brown Rudnick LLP. |
10.1# |
Midatech Pharma PLC 2014 Enterprise
Management Incentive Scheme (incorporated by reference to Exhibit
10.3 to the Company’s Registration Statement on Form F-4 (File No.
333-206305), originally filed with the SEC on August 11, 2015, as
amended). |
10.2# |
Form of Option Agreement (included in
Exhibit 10.2). |
10.3# |
Consultancy Agreement, dated as of
April 15, 2014, by and between Midatech Limited and Chesyl Pharma
Limited (incorporated by reference to Exhibit 10.17 to the
Company’s Registration Statement on Form F-4 (File No. 333-206305),
originally filed with the SEC on August 11, 2015, as
amended). |
10.4# |
Appointment Agreement, dated as of
April 15, 2014, by and between Midatech Limited and Rolf Stahel
(incorporated by reference to Exhibit 10.20 to the Company’s
Registration Statement on Form F-4 (File No. 333-206305),
originally filed with the SEC on August 11, 2015, as
amended). |
10.5# |
Revised Appointment Agreement, dated
as of December 2, 2014, by and between Midatech Pharma PLC and Rolf
Stahel (incorporated by reference to Exhibit 10.21 to the Company’s
Registration Statement on Form F-4 (File No. 333-206305),
originally filed with the SEC on August 11, 2015, as
amended). |
10.6# |
Form of Appointment Letter between
Midatech Pharma PLC and certain directors of Midatech Pharma PLC
(incorporated by reference to Exhibit 10.22 to the Company’s
Registration Statement on Form F-4 (File No. 333-206305),
originally filed with the SEC on August 11, 2015, as
amended). |
10.7# |
Deed of Indemnity dated August 5,
2015 (incorporated by reference to Exhibit 10.23 to the Company’s
Registration Statement on Form F-4 (File No. 333-206305),
originally filed with the SEC on August 11, 2015, as
amended). |
Exhibit
Number
|
Title
|
10.8† |
License, Collaboration and
Distribution Agreement, dated as of January 29, 2019, by and
between Midatech Pharma PLC, CMS Bridging Limited, CMS Medical Hong
Kong Limited and China Medical System Holdings Limited
(incorporated by reference to Exhibit 4.17 of the Company’s Annual
Report on Form 20-F for the year ended December 31, 2018, as
amended, filed with the SEC on May 28, 2019). |
10.9 |
Relationship Agreement, dated January
29, 2019, by and among the Company, certain CMS Concert Party
Members and Panmure Gordon (UK) Limited (incorporated by reference
to Exhibit 4.18 of the Company’s Annual Report on Form 20-F for the
year ended December 31, 2018, filed with the SEC on April 30,
2019). |
10.10 |
Deed of Variation of Relationship
Agreement between the Company, Certain CMS Concert Party Members
and Panmure Gordon (UK) Limited, dated May 12, 2020 (incorporated
by reference to Exhibit 4.15 to the Company’s Annual Report on Form
20-F for the year ended December 31, 2020, filed with the SEC on
April 30, 2021). |
10.11# |
The Midatech Pharma Share Incentive
Plan (incorporated by reference to Exhibit 4.27 of the Company’s
Annual Report on Form 20-F for the year ended December 31, 2018,
filed with the SEC on April 24, 2018). |
10.12†# |
Service Agreement date as of
September 9, 2019, by and between Midatech Pharma PLC and Stephen
Stamp (incorporated by reference to Exhibit 10.1 of the Company’s
Report on Form 6-K, filed with the SEC on September 19,
2019). |
10.13 |
Form of Securities Purchase
Agreement, dated as of October 22, 2019, by and between Midatech
Pharma PLC and the purchaser identified on the signature page
thereto (incorporated by reference to Exhibit 10.1 to the Company’s
Report on Form 6-K, filed with the SEC on October 24,
2019). |
10.14 |
Form of Securities Purchase
Agreement, dated as of May 18 2020, by and between Midatech Pharma
PLC and the purchasers identified on the signature page thereto
(incorporated by reference to the Company’s Report on Form 6-K,
filed with the SEC on May 19, 2020). |
10.15# |
Service Agreement, dated as of July
12, 2021, by and between Midatech Pharma PLC and Dmitry Zamoryakhin
(incorporated by reference to Exhibit 4.15 of the Company’s Annual
Report on Form 20-F for the year ended December 31, 2021, filed
with the SEC on April 26, 2022). |
23.1 |
Consent of
Mazars LLP, independent registered public accounting
firm. |
23.2 |
Consent of
BDO LLP, independent registered public accounting
firm. |
|
# |
Management contract or compensatory plan or
arrangement. |
|
† |
Certain portions of this exhibit
(indicated by asterisks) have been omitted because they are not
material and would likely cause competitive harm to Midatech Pharma
PLC if publicly disclosed. |
56
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