As filed with the Securities and Exchange Commission on March 1, 2024

 

Registration No. 333–276509

 


 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

Amendment No. 2 to

Form F-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 


 

VIVOPOWER INTERNATIONAL PLC

(Exact name of Registrant as specified in its charter)

 

Not Applicable

(Translation of Registrant's name into English)

England and Wales

(State or other jurisdiction of

incorporation or organization)

 

Not Applicable

(I.R.S. Employer

Identification No.)

VivoPower International PLC

The Scalpel, 18th Floor, 52 Lime Street

London EC3M 7AF

United Kingdom

+44-203-667-5158

(Address and telephone number of registrant’s principal executive offices)

 


 

Corporation Service Company

251 Little Falls Drive Wilmington, DE 19808

United States

Telephone: +1 302 636 5400

 

(Name, address, and telephone number of agent for service)

 

 


Copies to:

 

Elliott M. Smith

White & Case LLP

1221 Avenue of the Americas

New York, New York 10020

Telephone: (212) 819-8200

 

Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.

 

If only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

 

 

 

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

 

If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐

 

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.  ☐

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.

 

Emerging growth company ☐

 

If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act . ☐

 

† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.

 

 

 

 

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 

 

 

EXPLANATORY NOTE

 

This Amendment No. 2 to the Registration Statement on Form F-3 (File No. 333-276509) of VivoPower International PLC (the “Amendment”) is being filed solely for the purpose of filing a revised Exhibit 5.1 to the Registration Statement. Accordingly, this Amendment consists of the facing page, this explanatory note, Part II of the Registration Statement (including the signature page and the exhibits index) and the filed exhibit only. The prospectus, constituting Part I of the Registration Statement, is unchanged and has therefore been omitted.

 

 

 

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 8. Indemnification of Directors and Officers.

 

The Registrant’s articles of association provide that, subject to the Companies Act 2006, every person who is or was of any time a director of the Registrant or a director of an associated company of the Registrant may be indemnified against losses or liabilities incurred by him in relation to the Registrant or any associated company of the Registrant. The Registrant also maintains directors and officers insurance to insure such persons against certain liabilities.

 

Item 9. Exhibits.

 

The following exhibits are filed with this registration statement or are incorporated herein by reference.

 

Exhibit

Number

 

Exhibit Description

 

Filed

Herewith

 

Incorporated

by Reference

herein from

Form or

Schedule

 

Filing Date

 

SEC File/

Reg.

Number

                     

1.1*

 

Form of Underwriting Agreement.

               
                     

3.1

 

Articles of Association of the registrant

     

Form F-4
(Exhibit 3.1)

 

8/24/2016

 

333-213297

                     

4.1#

 

Form of certificate evidencing ordinary shares

               
                     

4.2*

 

Form of Senior Debt Security

               
                     

4.3*

 

Form of Subordinated Debt Security

               
                     

4.4#

 

Form of Senior Indenture

               
                     

4.5#

 

Form of Subordinated Indenture

               
                     

4.6*

 

Form of Warrant Agreement and Warrant Certificate

               
                     

4.7*

 

Form of Rights Agreement and Right Certificate

               
                     

4.8*

 

Form of Unit Agreement and Unit

               
                     

5.1

 

Opinion of Shoosmiths LLP

 

x

           
                     

5.2#

 

Opinion of White & Case LLP.

               
                     

23.1#

 

Consent of PKF Littlejohn LLP

               
                     

23.2

 

Consent of Shoosmiths LLP (included in the opinion filed as Exhibit 5.1)

 

x

           
                     

23.3#

 

Consent of White & Case LLP (included in the opinion filed as Exhibit 5.2).

               

 

 

 

 

24.1#

 

Powers of Attorney (included on the signature page of the initial registration statement).

               
                     

25.1**

 

The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Indenture will be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939.

               
                     

25.2**

 

The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated Indenture will be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939.

               
                     

107#

 

Filing Fee Table.

               

 


*

To be subsequently filed, if applicable, by an amendment to this registration statement or by a Report on Form 6-K

**

To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939

#

Previously filed.

 

Item 10. Undertakings.

 

(a) The undersigned registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

 

(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 20 percent 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;

 

providedhowever, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not apply if 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 a part of the registration statement.

 

 

 

 

 

(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(4) To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act of 1933 need not be furnished, provided, that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933, or 3-19 of Regulation S-X if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.

 

(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. Providedhowever, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

 

(6) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of securities:

 

The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

 

(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

 

(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

 

(iii) The portion of any other free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

 

(iv) Any other communications that is an offer in the offering made by the undersigned registrant to the purchaser.

 

 

 

 

 

(7) That, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s Annual Report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s Annual Report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(8) If applicable, the undersigned Registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transaction by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering.

 

(9) 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

(10) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Trust Indenture Act.

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in City of London, United Kingdom, on March 1, 2024.

 

 

VIVOPOWER INTERNATIONAL PLC

 
       
 

By:

/s/ Kevin Chin

 
   

Name:    Kevin Chin

 
   

Title:      Chief Executive Officer, Executive Chairman and

              Director

 

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Name

 

Title

 

Date

         

/s/ Kevin Chin

 

Chief Executive Officer, Executive Chairman

 

March 1, 2024

Kevin Chin

 

and Director (Principal Executive Officer)

   
         

/s/ Philip Wray

 

Group Finance Director (Principal Financial

 

March 1, 2024

Philip Wray

 

and Accounting Officer)

   
         

/s/ Michael Hui

 

Director

 

March 1, 2024

Michael Hui

       
         

/s/ Peter Jeavons

 

Director

 

March 1, 2024

Peter Jeavons

       
         

/s/ Gemma Godfrey

 

Director

 

March 1, 2024

Gemma Godrey

       
         

/s/ William Langdon

 

Director

 

March 1, 2024

William Langdon

       

 

 

 

 

SIGNATURE OF AUTHORIZED U.S. REPRESENTATIVE OF THE REGISTRANT

 

Pursuant to the Securities Act of 1933, the undersigned, the duly authorized representative in the United States of VivoPower International PLC has signed this registration statement on March 1, 2024.

 

 

 

VIVOPOWER INTERNATIONAL PLC

 
       
 

By:

/s/ William Langdon

 
   

Name:    William Langdon

 
   

Title:       Director

 

 

 

 

 

Exhibit 5.1

 

shslogo.jpg

 

VivoPower International PLC

The Scalpel

18th Floor

52 Lime Street

London

EC3M 7AF

 

 

 

 

Our Ref

ATP/M-00908237

 

Date

1 March 2024

 

 

 

Dear Sirs

 

VivoPower International PLC Registration Statement on Form F-3

 

We have acted as counsel to VivoPower International PLC (company number 09978410) (“Company”), a public limited company incorporated in England and Wales, in connection with the registration statement on Form F-3 which is attached to this Opinion Letter as an exhibit (such registration statement, including the documents incorporated by reference therein, the “Registration Statement”) filed with the United States Securities and Exchange Commission (the “SEC”) pursuant to the United States Securities Act of 1933, as amended (the “Securities Act”).

 

For the purposes of this Opinion Letter, we have examined and relied upon such documents, records, certificates and other instruments as we, in our professional judgment, have deemed necessary or appropriate as a basis for the opinions and statements below. We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, and the conformity to originals of all documents submitted to us as copies.

 

1

SCOPE OF OPINIONS

 

1.1

The opinions given in this Opinion Letter (the “Opinions”) are given only with respect to English law as published and applied by the courts of England and Wales at the date of this Opinion Letter.

 

1.2

We express no opinion on the laws of any other jurisdiction including, for the avoidance of doubt, European Union law, as it affects any jurisdiction other than England and Wales. No opinion is expressed as to any provision of the Documents (as defined below) that refer to specific laws or regulations of any jurisdiction other than England and Wales. To the extent that the laws of the United States of America or any other jurisdiction may be relevant to the subject matter of the Opinions, we have made no independent investigation of them and our opinion is subject to the effect of any such laws. We express no view on the validity of such matters.

 

1.3

The Opinions are given only with respect to the matters expressly set out in paragraph 4.1 and shall not be construed as opinions as to any other matter. The Opinions do not cover the matters set out in paragraph 6.1.

 

ftr01.jpg

 

 

VivoPower International PLC
 

 

1.4

The Opinions are given on the basis of the assumptions set out in paragraph 5. We have not taken any steps to investigate whether they are correct except as may be specified in paragraph 5.

 

1.5

The Opinions are subject to the qualifications listed in paragraph 6 and to any matters not disclosed to us.

 

1.6

By providing you with this Opinion Letter, we do not assume any obligation to notify you of future changes in law which may affect the Opinions or to otherwise update this Opinion Letter in any respect.

 

2

BACKGROUND

 

2.1

The Registration Statement relates to the issuance and sale by the Company from time to time of:

 

 

2.1.1

ordinary shares each having a nominal value of $0.12 (the “Offering Shares”);

 

 

2.1.2

debt securities as detailed in the Registration Statement and Base Prospectus (the “Debt Securities”);

 

 

2.1.3

warrants as detailed in the Registration Statement and Base Prospectus (the “Warrants”);

 

 

2.1.4

rights as detailed in the Registration Statement and Base Prospectus (the “Rights”); and

 

 

2.1.5

units as detailed in the Registration Statement and Base Prospectus (the “Units”),

 

pursuant to the Registration Statement with the aggregate subscription amount not to exceed US $18,000,000.

 

2.2

We understand that none of the Offering Shares are, and are not intended to be, admitted to trading on any market or exchange, or otherwise listed, in the United Kingdom.

 

2.3

We note that the Registration Statement includes a prospectus (the “Base Prospectus”) relating to the Offering Shares, Debt Securities, Warrants, Rights and Units to be offered, issued and sold by the Company with the aggregate subscription amount not to exceed US $18,000,000.

 

3

EXAMINATION OF DOCUMENTS AND SEARCHES

 

3.1

For the purpose of giving this Opinion Letter, we have examined the following documents (the “Documents”, each a “Document”):

 

 

3.1.1

copy of the registration statement on Form F-3 (Registration No. 333-276509) filed with the Securities and Exchange Commission under the Securities Act, as may be amended;

 

 

3.1.2

copy of the Company’s certificate of incorporation dated 1 February 2016 and copy current articles of association adopted pursuant to a special resolution of the Company’s shareholders passed on 20 August 2018;

 

2

VivoPower International PLC

 

 

3.1.3

a minute of the general meeting of the Company held on 6 October 2020 at which certain shareholder resolutions were passed, including the resolutions providing a general authority to allot ordinary shares in the Company and disapplying statutory pre-emption rights in respect of such allotment of shares or the grant of rights to subscribe for or convert into ordinary shares up to an aggregate nominal value of $180,000;

 

 

3.1.4

written resolutions of the board of directors of the Company passed on 11 December 2020 which resolved to approve the filing of the Registration Statement with the SEC, and written resolutions of the board of directors passed on 11 December 2020 which resolved to approve the allotment and disapplying statutory pre-emption rights in respect of the allotment of ordinary shares up to a subscription amount of $80,000,000;

 

 

3.1.5

a minute of the general meeting of the Company held on 18 December 2020 at which certain shareholder resolutions were passed, including the resolutions providing a general authority to allot ordinary shares in the Company and disapplying statutory pre-emption rights in respect of such allotment of ordinary shares or the grant of rights to subscribe for or convert into ordinary shares up to an aggregate nominal value of $180,000;

 

 

3.1.6

written resolutions of the board of directors passed on 9 October 2020 which resolved to approve the allotment of ordinary shares of $0.012 each up to an aggregate subscription amount of $34,500,000;

 

 

3.1.7

written resolutions of the board of directions passed on 14 October 2020 which resolved to approve the allotment of ordinary shares of $0.012 each up to an aggregate offering price of $5,750,000;

 

 

3.1.8

a minute of the general meeting of the Company held on 10 November 2022 at which certain shareholder resolutions were passed, including the resolutions providing a general authority to allot ordinary shares in the Company and disapplying statutory pre-emption rights in respect of such allotment of ordinary shares or the grant of rights to subscribe for or convert into ordinary shares up to an aggregate nominal value of $180,000;

 

 

3.1.9

shareholder resolutions passed on 6 July 2023 providing authority for the directors to consolidate and divide all of the Company’s existing ordinary shares of $0.012 each into such reduced number of ordinary shares of such increased nominal value as the Company’s board may determine at any time prior to 23 October 2023;

 

 

3.1.10

written resolutions of the board of directors passed on 2 October 2023 which resolved to approve the consolidation of the Company’s existing ordinary shares of $0.012 each into 2,578,826 ordinary shares of $0.12 each;

 

 

3.1.11

a minute of the general meeting of the Company held on 28 December 2023 at which certain shareholder resolutions were passed, including the resolutions providing a general authority to allot ordinary shares of $0.12 each in the capital of the Company and disapplying statutory pre-emption rights in respect of such allotment of ordinary shares or the grant of rights to subscribe for or convert into ordinary shares up to an aggregate nominal value of $3,600,000;

 

 

3.1.12

written resolutions of the board of directors of the Company passed on 2 January 2024 which resolved to approve the filing of the Registration Statement with the Securities and Exchange Commission;

 

3

VivoPower International PLC

 

 

3.1.13

written resolutions of the board of directors of the Company passed on 15 February 2024 which resolved to approve the filing of the Registration Statement, together with any new exhibits, with the Securities and Exchange Commission;

 

 

3.1.14

a certificate of good standing of the Company dated 1 March 2024;

 

 

3.1.15

at 12:08 on 1 March 2024 an online search of the public records on file and available for inspection at Companies House in respect of the Company;

 

 

3.1.16

at 16:25 on 29 February 2024 an online search of the Central Registry of Winding-up Petitions at the Companies Court in London in respect of the Company; and

 

 

3.1.17

a director’s certificate dated 1 March 2024 in which the directors confirmed no resolutions have been passed which render any part of this Opinion Letter untrue or invalid, and that there have been no resolutions of the directors or the shareholders of the Company to revoke any previous authorities provided to the directors to issue shares in the Company free of pre-emption rights.

 

3.2

Except as stated above, we have not examined any other documents or corporate or other records and we have not made any other searches, enquiries or investigations for the purpose of giving the Opinions.

 

4

OPINIONS

 

4.1

Based on and subject to the qualifications, assumptions and limitations set forth herein and subject to any matters not disclosed to us, we are of the opinion that:

 

 

4.1.1

the Company is a public limited company duly incorporated under English law, noting that our searches undertaken on 16 February 2024 revealed no order or resolution for the winding-up of the Company is pending, and no notice of the appointment of a receiver, administrative receiver or administrator in respect of it or any of its assets has been made;

 

 

4.1.2

the Offering Shares will, when the names of the holders of such Offering Shares or their nominees are entered into the register of members of the Company and subject to the receipt by the Company of the aggregate issue price in respect of all the Offering Shares, be validly issued, fully paid and no further amount may be called thereon;

 

 

4.1.3

the Debt Securities will constitute valid and binding obligations of the Company at such time that the relevant forms and terms of the of the Debt Securities and their issuance have been approved by the Company and the Debt Securities have been executed and delivered by the Company;

 

 

4.1.4

the Warrants will be valid and binding obligations of the Company at such time as the terms of the Warrants and their issuance have been approved by appropriate action of the Company and any applicable warrant agent, and the Warrants have been duly executed, authenticated and delivered in accordance with the applicable warrant agreement;

 

 

4.1.5

the Rights will be valid and binding obligations of the Company at such time as the terms of the Rights and their issuance have been approved by appropriate action of the Company, and the Rights have been duly executed, authenticated and delivered in accordance with the applicable agreements; and

 

4

VivoPower International PLC

 

 

4.1.6

the Units will be valid and binding obligations of the Company at such time as the terms of the Units and their issuance have been approved by appropriate action of the Company, and the Units have been duly executed, authenticated and delivered in accordance with the applicable agreements.

 

4.2

This Opinion Letter is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act. This Opinion Letter is provided solely in connection with the registration of Securities pursuant to the Registration Statement and is not to be relied upon for any other purpose.

 

4.3

We consent to the filing of this Opinion Letter as Exhibit 5.1 to the Registration Statement subject to paragraph 4.2 above (and without creating any assumption of duty on our part to any person other than the Company) and further consent to the reference to our name under the caption “Legal Matters” in the prospectus, which forms a part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.

 

4.4

Our liability under this Opinion Letter is limited to $18,000,000 for any one claim or series of claims arising out of this Opinion Letter.

 

4.5

The Opinions are given only by Shoosmiths LLP, an English limited liability partnership, and no partner, member or employee of Shoosmiths LLP shall have any personal responsibility or owe any duty of care in relation to it.

 

5

ASSUMPTIONS

 

5.1

Documents

 

We have assumed:

 

 

5.1.1

the genuineness of all signatures and seals on the Documents (or on the relevant originals where we have examined copies) and the authenticity and completeness of those Documents;

 

 

5.1.2

the conformity to the original Documents of any Documents submitted to us as certified or uncertified copies or scans of the original Documents; and

 

 

5.1.3

that there have been no variations to any of the Documents provided to us or to the originals thereof and none of the Documents have been superseded or rescinded.

 

5.2

Other parties and laws

 

In relation to the other parties to the Documents and all laws other than those of England and Wales we have assumed:

 

 

5.2.1

the capacity, power and authority to execute and the due execution of the Documents by each party to it other than the Company (as a matter of English law);

 

 

5.2.2

that the obligations expressed to be assumed by each party to the Documents other than the Company under the Documents are valid and legally binding upon them (as a matter of English law);

 

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VivoPower International PLC

 

 

5.2.3

that all obligations under the Documents are valid, legally binding upon, and enforceable against, the parties thereto as a matter of all relevant laws other than the laws of England and Wales;

 

 

5.2.4

no foreign law would affect any of the conclusions stated in this Opinion Letter;

 

 

5.2.5

due compliance by all relevant parties other than the Company with all matters (including, without limitation, the making of necessary filings, lodgements, registrations and notifications and the payment of stamp duties and other documentary taxes and charges) that govern or relate to the Documents or such parties;

 

 

5.2.6

where any consents, directions, authorisations, approvals or instructions have to be obtained under any law, regulation or practice for the performance of the Documents (other than any corporate authorisations, approvals and company law requirements the subject of this Opinion Letter), they have been obtained or that they will be forthcoming within any relevant period in order to be fully effective for such purpose; and

 

 

5.2.7

other than European Union Law as it affects the laws of England and Wales, there are no laws of any jurisdiction outside England and Wales which would, or might, affect the Opinions.

 

5.3

Corporate actions and status

 

In relation to the Company, we have assumed:

 

 

5.3.1

that each resolution of the directors and shareholders of the Company certified as being true and accurate and provided to us in connection with the giving of the Opinions was duly passed by the required majority at a properly convened and quorate meeting of directors (or a duly authorised committee thereof) and of shareholders of the Company or otherwise in accordance with the constitutional documents of the Company and/or the Companies Act 2006;

 

 

5.3.2

that each person identified as a director or a secretary in any resolution of the directors of the Company was validly appointed as such and was in office at the date of the Documents;

 

 

5.3.3

that any provisions contained in the Companies Act 2006 and/or the articles of association of the Company relating to the declaration of directors’, interests or the power of interested directors to vote were duly observed;

 

 

5.3.4

that any restrictions in the articles of association of the Company on that Company’s and/or on its directors’ authority to guarantee will not be contravened by the entry into and performance by it of the Documents to which it is a party;

 

 

5.3.5

that the execution and delivery of the Documents by the Company and the exercise of its rights and performance of its obligations under the Documents will promote the success of the Company for the benefit of its members as a whole and that any guarantee contained in the Documents was given in good faith by the Company and for the purposes of carrying on its business and the directors of the Company have satisfied themselves, after due deliberation, as to the benefit that the Company will derive from the giving of any guarantee contained in the Documents;

 

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VivoPower International PLC

 

 

5.3.6

that no step has been taken to wind up the Company nor to appoint a receiver, administrator or like officer in respect of the Company or any of its assets and that no voluntary arrangement has been proposed in respect of the Company; and

 

 

5.3.7

there are no agreements, letters or other arrangements having contractual effect which modify the terms of, or affect, the Documents or which render the Company incapable of or prohibit it from performing any of its obligations under the Documents and no provision of the Documents have been waived and there are no contractual or similar restrictions contained in any agreement or arrangement (other than the Documents) which are binding on the Company which would prohibit it from performing any of its obligations under the Documents.

 

5.4

Reliance on Documents

 

 

5.4.1

All Documents submitted to us as copies or certified copies are true and complete copies of the originals and such originals and all Documents submitted to us as originals are genuine and complete and all signatures (including electronic signatures), stamps and seals on the documents are genuine.

 

 

5.4.2

Each Document accurately records the agreement of the parties to it and has not been amended, varied, waived, superseded, rescinded, breached, revoked or terminated.

 

 

5.4.3

The Documents are in the form produced to the directors of the Company.

 

 

5.4.4

There have been no amendments to the articles of association of the Company since the date referred to in paragraph 3.1.2.

 

 

5.5

Execution

 

 

5.5.1

The Documents have been signed by or on behalf of each party to it by person(s) authorised by the relevant party to (in the presence of a witness where applicable).

 

 

5.5.2

The making of the signatures on the signature pages to the Documents was made or done in a manner recognised by law as valid and the Documents have remained intact since those signatures were made or affixed (as the case may be).

 

 

5.5.3

The Documents have been dated with the date on which it was signed and duly delivered by the parties to it (where applicable).

 

5.6

Searches

 

 

5.6.1

The information disclosed in response to the searches referred to in paragraph 3.1 of this Opinion Letter was accurate, complete and up to date at the time of those searches and those responses did not fail to disclose any matters which they should have disclosed and which were relevant for the purposes of this Opinion Letter. Since the date of those searches and enquiries there has been no alteration in the status of the Company as revealed in those searches.

 

 

5.6.2

No event has occurred in relation to the Company, such as the passing of a resolution for or the presentation of a petition or the taking of any other action for the winding-up of, or the appointment of a liquidator, administrator, administrative receiver or receiver of the Company, in respect of which a filing at the Companies Registry or at the Central Index of the Companies Court was required to be made and has not been made or has been made but has not at the date of the searches appeared on the relevant search result relating to the Company.

 

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VivoPower International PLC

 

5.7

Other matters

 

 

5.7.1

None of the parties to the Documents are or will be seeking to achieve any purpose not apparent from the Documents which might render the Documents illegal or void.

 

 

5.7.2

Where any liability or obligation or right or benefit of a party to the Documents are dependent upon the satisfaction of conditions precedent, those conditions have been or will be duly and properly satisfied.

 

 

5.7.3

There is no other matter or document which would, or might, affect the Opinions and which was not revealed by the Documents.

 

6

QUALIFICATIONS

 

6.1

Matters not covered

 

 

6.1.1

We express no opinion as to matters of fact, opinion or intention.

 

 

6.1.2

No opinion is expressed as to any provision of the Documents to the extent it purports to declare or impose a trust, turnover or similar arrangement in relation to any payments or assets received.

 

 

6.1.3

Except to the extent expressly set out in the Opinions, we express no opinion as to any taxation, financial or accountancy matters or any liability to tax which may arise or be suffered as a result of, or in connection with, the Documents or any transaction relating to them.

 

 

6.1.4

We express no opinion as to whether any filings, clearances, notifications or disclosures are required under laws relating to anti-trust, competition, public procurement, state aid or national security.

 

6.2

Insolvency

 

 

6.2.1

The validity, performance and enforcement of the Documents may be limited by bankruptcy, insolvency, liquidation, reorganisation or prescription or similar laws of general application relating to or affecting the rights of creditors.

 

 

6.2.2

Any provision in the Documents which confers, purports to confer or waives a right of set-off or similar right may be ineffective against a liquidator or creditor.

 

 

6.2.3

A power of attorney may, in limited circumstances, be revoked by the winding-up or dissolution of the donor company.

 

 

6.2.4

The searches and enquiries referred to in paragraph 2 of this Opinion Letter are not conclusively capable of revealing whether insolvency or similar procedures, or steps towards them, have been started against the Company.

 

6.3

Enforceability

 

 

6.3.1

Remedies such as specific performance or the issue of an injunction are available only at the discretion of the courts of England and Wales according to general principles of equity. Specific performance is not usually granted and an injunction is not usually issued where damages would be an adequate alternative.

 

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VivoPower International PLC

 

 

6.3.2

The enforcement of any guarantee contained in the Documents may be subject to equitable defences relieving the guarantor from its obligations. The guarantor may be relieved from liability under any guarantee contained in the Documents by (a) the action or the lack of action by or by the conduct of the creditor or debtor in respect of any guaranteed obligations or any guarantee, security or other assurance against financial loss given in respect of such obligations or (b) any bad faith or misrepresentation on the part of such creditor.

 

 

6.3.3

Enforcement of claims arising pursuant to the Documents may become barred under the Limitation Act 1980 or may be subject to a defence of set-off or counterclaim.

 

 

6.3.4

Enforcement may be limited by the provisions of the laws of England and Wales applicable to agreements held to have been frustrated by events happening after execution of a document.

 

 

 

6.3.5

A party to a contract may be able to avoid its obligations under that contract (and may have other remedies) where it has been induced to enter into that contract by a misrepresentation and the courts of England and Wales will generally not enforce an obligation if there has been fraud.

 

 

6.3.6

In this letter “enforceable” means, in relation to an obligation, that it is of a type which the courts of England and Wales enforce. It does not mean that such obligation will be enforced in all circumstances in accordance with the terms of the relevant Document.

 

6.4

Discretion of courts

 

 

6.4.1

The courts of England and Wales may stay proceedings if concurrent proceedings are being brought elsewhere.

 

 

6.4.2

There could be circumstances in which the courts of England and Wales would not treat as conclusive those certificates and determinations which any of the Documents state are to be so treated.

 

 

6.4.3

The question whether or not any provisions of the Documents which may be invalid on account of illegality may be severed from the other provisions thereof in order to save those other provisions would be determined by the courts of England and Wales in their discretion.

 

6.5

Choice of law

 

 

6.5.1

An express choice of the laws of England and Wales will be subject to:

 

 

a)

mandatory provisions of European Community law where all other elements of the situation are located in one or more European Union member states; and

 

 

b)

the discretion of the courts of England and Wales to give effect to the mandatory provisions of law of the country where the obligations arising out of the contract are to be performed insofar as those provisions render performance of the contract unlawful.

 

9

 

 

6.5.2

An English court may refuse to accept jurisdiction if proceedings have been commenced in member state of the European Union, a related action is already pending in another member state of the European Union or the courts of another member state of the European Union has exclusive jurisdiction.

 

7

GENERAL

 

7.1

We have not investigated the laws of any country other than England and Wales and the Opinions are given only with respect to the laws of England and Wales as at the date of this letter. In issuing the Opinions we do not assume any obligation to notify or inform you of any developments subsequent to the date of this letter that might render its contents untrue or inaccurate in whole or in part at such later time.

 

7.2

Where any party to any Document is vested with a discretion or may determine a matter in its opinion, the laws of England and Wales may require that such discretion is exercised reasonably and for a proper purpose and/or that such opinion is formed in good faith based on reasonable grounds.

 

7.3

Whether any guarantee contained in any Document constitutes a primary obligation of the Company will depend upon its construction. In the absence of a clear statement that the obligations of the Company are of indemnity as well as guarantee the courts of England and Wales may not give effect to provisions seeking to impose primary liability on or to restrict the defences available to the Company in accordance with the terms of the Documents.

 

7.4

Any provisions excluding liability may be limited by law.

 

7.5

This Opinion Letter is given on the condition that it will be construed in accordance with English law and that each addressee submits to the jurisdiction of the courts of England and Wales and waives any objection to the exercise of such jurisdiction in relation to any dispute arising out of or in connection with this Opinion Letter.

 

 

Yours faithfully

 

 

/s/ Shoosmiths LLP

 

SHOOSMITHS LLP

Dated: 1 March 2024

 

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