As
filed with the Securities and Exchange Commission on December 14, 2023
Registration
Statement No. 333-274244
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No. 2
to
FORM
F-1
REGISTRATION
STATEMENT Under The Securities Act of 1933
TC
BIOPHARM (HOLDINGS) PLC
(Exact
name of Registrant as specified in its charter)
Scotland |
|
8731 |
|
Not
applicable |
(State
or other jurisdiction of
incorporation
or organization) |
|
(Primary
Standard Industrial
Classification
Code Number) |
|
(IRS
Employer
Identification
Number) |
Maxim
1, 2 Parklands Way
Holytown,
Motherwell, ML1 4WR
Scotland,
United Kingdom
+44
(0) 141 433 7557
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
TC
BioPharm (North America) Inc.
c/o
Business Filings, Inc.
108
West 13th Street
Wilmington,
Delaware 19801
(800)
981-7183
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copy
of all communications including communications sent to agent for service, should be sent to:
Richard
A. Friedman, Esq.
Stephen
Cohen, Esq.
Sheppard,
Mullin, Richter & Hampton LLP
30
Rockefeller Plaza
New
York, NY 10112
Telephone:
(212) 653-8700
Facsimile:
(212) 653-8701 |
|
John
J. Hart, Esq.
Ellenoff
Grossman & Schole LLP
1345
Avenue of the Americas
New
York, NY 10105
Tel:
(212) 370-1300 |
Approximate
date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
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 (as amended, the “Securities Act”), 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, 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 earlier 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.
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, or until this registration statement shall become effective on such date as the
Securities and Exchange Commission, acting pursuant to said Section 8(a) may determine.
EXPLANATORY
NOTE
TC
Biopharm (Holdings) plc is filing this Amendment No. 2 (the “Amendment”) to its Registration Statement on Form F-1
(Registration No. 333-274244) (the “Registration Statement”) as an exhibit-only filing to file Exhibit 1.1 and re-file
Exhibit 5.1, previously filed with the Registration Statement, and to amend and restate the list of exhibits set forth in Item 8 of
Part II of the Registration Statement. No changes have been made to Part I or Part II of the Registration Statement other than this
explanatory note as well as revised versions of the cover page and Item 8 of Part II of the Registration Statement. This Amendment
does not contain a copy of the preliminary prospectus included in Amendment No. 1 to the Registration Statement, nor is it intended
to amend or delete any part of the preliminary prospectus.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
6. Indemnification of Directors and Officers
Scottish
law does not limit the extent to which a company’s articles of association may provide indemnification of officers and directors,
except to the extent that it may be held by the Scottish and United Kingdom courts to be contrary to public policy, such as providing
indemnification against civil fraud or the consequences of committing a crime.
Our
Memorandum and Articles of Association provide that, to the maximum extent permitted by law, every current and former director and officer
(excluding an auditor) is entitled to be indemnified out of our assets against any liability, action, proceeding, claim, demand, costs,
damages or expenses, including legal expenses, which such indemnified person may incur in that capacity unless such liability arose as
a result of the actual fraud or willful default.
A
company formed under the laws of Scotland may also purchase insurance for directors and certain other officers against liability incurred
as a result of any negligence, default, breach of duty or breach of trust in relation to the company. We expect to maintain director’s
and officer’s liability insurance covering our directors and officers with respect to general civil liability, including liabilities
under the Securities Act of 1933, as amended (or the “Securities Act”), which he or she may incur in his or her capacity
as such. We have entered into a deed of indemnity with each of our directors and members of our senior management, each of which provides
the office holder with indemnification permitted under applicable law and to the extent that these liabilities are not covered by directors’
and officers’ insurance.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us
under 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
Set
forth below is information regarding share capital issued by TC BioPharm (Holdings) plc and TC BioPharm Limited (prior to completing
a corporate reorganization) since January 1, 2018. Some of the transactions described below involved directors, officers and 5% shareholders
and are more fully described under the section titled “Related Party Transactions”.
|
● |
On
December 17, 2018, the Company issued an aggregate of 3,499 ordinary shares to 19 accredited investors and insiders at a purchase
price of £178.48 per share for aggregate consideration totaling £624,500 in respect of satisfying a convertible loan
note. |
|
|
|
|
● |
In
November 2019, the Company issued an aggregate of 14,688 A ordinary shares to 25 accredited investors and insiders at a purchase
price of £215.00 per share for aggregate cash consideration totaling £3,157,877. |
|
|
|
|
● |
From
December 2019 until July 2020, the Company issued an aggregate of 2,338 A ordinary shares to 8 accredited investors and insiders
at a purchase price of £215.00 per share for aggregate cash consideration totaling £499,187. |
|
|
|
|
● |
On
August 25, 2020, the Company issued an aggregate of 15,891 A ordinary shares to 14 accredited investors and insiders at a purchase
price of £215.00 per share for aggregate cash consideration totaling £3,416,522. |
|
|
|
|
● |
On
January 18, 2021, the Company issued an aggregate of 27 A ordinary shares to one accredited investor and insider at a purchase price
of £215.00 per share for aggregate cash consideration totaling £5,719. |
|
|
|
|
● |
On
January 19, 2021, the Company issued an aggregate of 930 A ordinary shares to one accredited investor and insider at a purchase price
of £215.00 per share for aggregate cash consideration totaling £199,993. |
|
● |
On
April 30, 2021, the Company issued an aggregate of 465 A ordinary shares to one accredited investor and insider at a purchase price
of £215 per share for aggregate consideration totaling £100,018. |
|
|
|
|
● |
On
June 16, 2021, the Company issued an aggregate of 369 A ordinary shares to one accredited investor and insider at a purchase price
of £215.00 per share for aggregate consideration totaling £79,378. |
From
April 2021 to January 28, 2022, the Company issued Convertible Loan Notes with a face value amount of $17.7 million. The loan note was
issued with a 50% discount. Upon listing, 50% of the face value of the outstanding Convertible Loan Notes (including interest accrued
to date), and any further balance as elected by the noteholders, will convert into ADSs and Warrants at a conversion price for a unit
comprised of one ADS and 1.25 Warrants, which is the lower of (a) the price per share calculated on a fully diluted basis (based on the
number of shares in issue and vested share options immediately prior to the IPO being approved by the shareholders) on an assumed entity
valuation of $120,000,000 and (b) the listing price. The remaining balance of the loan notes are repayable or convertible (at the same
value) at the loan note holders’ option in two equal tranches at 90 days and 180 days after the listing date. In the event of an
act of default (including if the Company does not list despite its and its bankers’ efforts before February 15, 2022) the outstanding
notes become repayable at their face value.
Immediately
prior to completion of the Initial Public Offering, TC BioPharm (Holdings) plc re-organized its share capital whereby all of the outstanding
series A ordinary shares were re-designated as ordinary shares of TC BioPharm (Holdings) plc on a one for one basis. Immediately prior
to the completion of the offering, a further 24,693 ordinary shares were issued, under the terms of our Articles of Association to certain
shareholders who, prior to the IPO, owned A ordinary shares which carried the right, to subscribe at nominal value for a certain number
of additional shares, calculated by reference to the pre-money valuation of the IPO.
On
February 10, 2022, the Company completed an IPO on Nasdaq, issuing 4,117 American Depositary Shares (“ADSs”) representing
82,353 ordinary shares with nominal value of £41,176 and warrants to buy 9,470 ADSs at a combined issue price of $4,250 for proceeds
before expenses of $17.5 million.
At
the date of the IPO loan notes totaling $13,447,012, converted into 3,164 ADSs and 6,278 Warrants at a combined issue price of $4,250.
On
June 8, 2022, the Company completed a secondary public offering, issuing 11,500 ADSs representing 230,000 ordinary shares for aggregate
gross proceeds before expenses of $4.6 million.
On
August 9, 2022, TC BioPharm (Holdings) plc issued 183 American Depositary Shares (“ADSs”) representing 3,676 ordinary shares
and warrants to buy 366 ADSs on conversion of loan notes totaling $0.8 million.
On
November 15, 2022, TC BioPharm (Holdings) plc issued 21 Ordinary shares for a consideration of $7.565 (£6.362) per share.
On
November 24, 2022, TC BioPharm (Holdings) plc issued 3 Ordinary shares for a consideration of $6.51 per share.
On
November 27, 2022, the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain accredited
investors (the “Investors”) as purchasers. Pursuant to the Purchase Agreement, the Company sold, and the Investors purchased
in a private placement an aggregate of 7,750 American Depositary Shares (the “ADSs”), pre-funded warrants to purchase up
to 65,750 ADS (the “Pre-Funded Warrants”), series A purchase warrants to purchase up to 73,500 ADSs (the “Series A
Ordinary Warrants”) and series B purchase warrants to purchase up to 73,500 ADSs (the “Series B Ordinary Warrants”
and together with the Series A Ordinary Warrants, the “Ordinary Warrants”) for aggregate gross proceeds of $7,350,000, excluding
any proceeds that may be received upon exercise of the Ordinary Warrants. The purchase price for each ADS and associated Ordinary Warrants
is $100.00 and the purchase price per each Pre-Funded Warrant and associated Ordinary Warrants is $99.98. The offering closed on November
30, 2022.The Series A Ordinary Warrants will be immediately exercisable, will expire five and one-half (5.5) years from the date of issuance
and have an exercise price of $100.00 per ADS, subject to adjustment as set forth therein. The Series B Ordinary Warrants will be immediately
exercisable, will expire thirty (30) months from the date of issuance and have an exercise price of $100.00 per ADS, subject to adjustment
as set forth therein. The placement agent for such offering received warrants to purchase up to 5,512 ADSs (the “Placement Agent
Warrants”) on substantially the same terms as the Series A Ordinary Warrants except that the Placement Agent Warrants have an exercise
price equal to 125% of the offering price, or $125.00 per ADS.
On
March 27, 2023, the Company , entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain accredited
investors (the “Investors”), pursuant to which the Company agreed to issue and sell an aggregate of 10,750 ADSs, pre-funded
warrants to purchase up to 161,125 ADS (the “March 2023 Pre-Funded Warrants”), and series C purchase warrants to purchase
up to 171,875 ADSs (the “Ordinary Warrants” and together with the March 2023 Pre-Funded Warrants and the ADSs, the “Securities”).
The purchase price for each ADS and associated Ordinary Warrants was $32.00 and the purchase price per each March 2023 Pre-Funded Warrant
and associated Ordinary Warrants was $31.98. The Ordinary Warrants were immediately exercisable, expire five (5) years from the date
of issuance and have an exercise price of $35.00 per ADS. The March 2023 Pre-Funded Warrants may be exercised at any time until all of
the Pre-Funded Warrants are exercised in full at an exercise price of $0.02 per ADS. The total net proceeds from this offering were approximately
$4.9 million, after deducting estimated offering expenses of approximately $0.6 million.
In
connection with the March 2023 offering, the Company agreed that certain existing warrants to purchase up to an aggregate of 140,000
ADSs of the Company that were previously issued on November 30, 2022, at an exercise price of $100.00 per ADS and expiration dates of
May 30, 2025 and May 30, 2028, were amended effective upon the closing of the March 2023 offering so that the amended warrants will have
a reduced exercise price of $35.00 per ADS.
In
the period from January 1, 2023 to December 6, 2023, the holders of prefunded warrants, exercised prefunded warrants to purchase 226,875
ADSs.
On
April 3, 2023, the Company agreed with the loan note holder to extend the Redemption Date (as defined in the Loan Note) to January 15,
2024 and amend the Conversion Price (as defined in the Loan Note) of the outstanding loan notes to be the lesser of $20.00 or the lowest
closing price of the Ordinary Shares during the ten (10) day period prior to the date the Noteholder delivers a notice of conversion
to the Company, not to be lower than $4.00. In other respects the terms of the Loan Note remain unaltered. In addition, in consideration
of amending the Loan Note, the Company agreed to issue a 5-year warrant to the loan note holder to subscribe for 200,000 Ordinary Shares
in the share capital of the Company at an exercise price of $100.00.
In
the period from April 3, 2023 to December 6, 2023, the holders of Loan Notes, converted notes with a value of $813,302 into 79,506 ADSs.
August
2023 Warrant Inducement
On
August 30, 2023, we entered into an inducement offer letter agreement (the “Letter Agreement”) with certain holders
(the “Holders”) of existing Series A, B and C warrants (the “Existing Warrants”) to purchase ordinary
shares represented by the ADSs of the Company. The Existing Warrants were issued on November 30, 2022 and March 30, 2023, as amended
on July 10, 2023, and have an exercise price of £7.00 per ADS ($8.90 per ADS translated for illustration to U.S. dollars at the
rate of £1.00 to $1.2709).
Pursuant
to the Inducement Letter, the Holders agreed to exercise for cash their Existing Warrants to purchase an aggregate of 311,875 ADSs of
the Company (the “Warrant Exercise”) in consideration for the Company’s agreement to issue to the Holder new Series
D warrants to purchase up to 623,750 of the Company’s ordinary shares represented by ADSs. The Series D Warrants are immediately
exercisable, expire five and one half (5.5) years from the date of issuance and have an exercise price of £7.00 per ADS ($8.90
per ADS translated for illustration to U.S. dollars at the rate of £1.00 to $1.2709). The Company received aggregate gross proceeds
of approximately £2.2 million (approximately $2.8m) from the exercise of the Existing Warrants by the Holders, before deducting
placement agent fees payable by the Company. The ADSs are issuable in line with the terms of the warrant Inducement Letter (Exhibit 10.6).
In particular, in the event that any Warrant Exercise would otherwise cause the Holder to exceed the beneficial ownership limitations
(“Beneficial Ownership Limitation”) set forth in Section 2(e) within Exhibit 10.6 of the Existing Warrants (or, if applicable
and at the Holder’s election, 9.99%), the Company shall only issue such number of Warrant ADSs to the Holder that would not cause
the Holder to exceed the maximum number of Ordinary Shares and/or ADSs permitted thereunder, as directed by the Holder, with the balance
to be held in abeyance until notice from the Holder that the balance (or portion thereof) may be issued in compliance with such limitations,
which abeyance shall be evidenced through the Existing Warrants which shall be deemed prepaid thereafter (including the payment in full
of the exercise price), and exercised pursuant to a Notice of Exercise in the Existing Warrants (provided that no additional exercise
price shall be due and payable).
The
Company engaged H.C. Wainwright & Co., LLC (the “Placement Agent”) to act as its exclusive placement agent in
connection with the transactions summarized above and has agreed to pay the Placement Agent a cash fee equal to 7.5% of the gross proceeds
received from the Holders’ exercise of their Existing Warrants and a management fee of 1% of the gross proceeds received from the
Holders’ exercise of their Existing Warrants. The Company has also agreed to reimburse the Placement Agent for its expenses in
connection with the exercise of the Existing Warrants and the issuance of the New Warrants, up to $50,000 for fees and expenses of legal
counsel and other out-of-pocket expenses, and agreed to pay the Placement Agent for non-accountable expenses in the amount of $35,000
and clearing fee of $15,950. Upon any exercise for cash of any New Warrants, the Company has agreed to pay the Placement Agent a cash
fee of 7.5% of the aggregate gross exercise price paid in cash with respect the exercise of the New Warrants. In addition, the Company
granted warrants (“Placement Agent Warrants”) to the Placement Agent, or its designees, to purchase up to an aggregate
of 467,813 ordinary shares represented by 23,390 ADSs, which Placement Agent Warrants shall be in the form of the Series D Warrants,
except that the Placement Agent Warrants shall have an exercise price of £8.75 ($11.12
per ADS translated for illustration to U.S. dollars at the rate of £1.00 to $1.2709. The registration statement of which this prospectus
is a part is being filed to register the ADSs underlying the Placement Agent Warrants.
The
closing of the transactions contemplated pursuant to the Letter Agreement occurred on September 5, 2023 (the “Closing Date”).
The Company expects to use the net proceeds of these transactions to support the submission of the Company’s Investigational New
Drug (IND) Application in respect of its upcoming clinical trial and for continuing operating expenses and working capital.
The
Company also agreed to file a registration statement on Form F-3 (or other appropriate form if the Company is not then Form F-3 eligible)
covering the resale of the New Warrant ADSs issued or issuable upon the exercise of the New Warrants (the “Resale Registration
Statement”), within 30 days of the Closing Date, and to have such Resale Registration Statement declared effective by the SEC
within 90 days following the Closing Date. The registration statement was subsequently filed on November 2, 2023 and declared effective
on November 6, 2023.
In
the Letter Agreement, the Company agreed not to issue any ADSs, ordinary shares or ordinary share equivalents or to file any other registration
statement with the SEC (in each case, subject to certain exceptions) until 45 days after the Closing Date. The Company also agreed not
to effect or agree to effect any variable rate transaction (as defined in the Letter Agreement) until one (1) year after the Closing
Date (subject to an exception).
The
offers, sales and issuances of the securities and loan notes described above were exempt from registration either (i) under Section 4(a)(2)
of the Securities Act in that the transactions did not involve any public offering, (ii) under Rule 701 promulgated under the Securities
Act in that the transactions were under compensatory benefit plans and contracts relating to compensation or (iii) under Regulation S
promulgated under the Securities Act in that offers, sales and issuances were not made to persons in the United States and no directed
selling efforts were made in the United States.
Item
8. Exhibits and Financial Statement Schedules
Exhibit |
|
Description |
|
Schedule/
Form |
|
File
Number |
|
Exhibit |
|
File
Date |
1.1 |
|
Engagement Agreement, by and between the Company and H.C. Wainwright & Co., LLC, dated as of November 1, 2022, as amended. |
|
|
|
|
|
|
|
|
2.1 |
|
Deposit Agreement – Bank of New York Mellon for American Depositary Shares |
|
F-1 |
|
333-260492 |
|
4.1 |
|
03/08/2022 |
2.2 |
|
Form of American Depositary Share (included in Exhibit 2.1) |
|
F-1 |
|
333-260492 |
|
4.2 |
|
03/08/2022 |
2.3 |
|
Warrant Agent Agreement with Computershare Inc. |
|
F-1 |
|
333-260492 |
|
4.4 |
|
03/08/2022 |
2.4 |
|
Form of Warrant Certificate (included in Exhibit 2.3) |
|
F-1 |
|
333-260492 |
|
4.5 |
|
03/08/2022 |
2.5 |
|
Form of Ordinary Share Certificate |
|
F-1 |
|
333-260492 |
|
4.6 |
|
03/08/2022 |
3.1 |
|
Articles of Association of TC BioPharm (Holdings) plc |
|
F-1 |
|
333-260492 |
|
3.2 |
|
03/08/2022 |
4.1 |
|
Form of Representative Warrant |
|
F-1 |
|
333-260492 |
|
4.3 |
|
03/08/2022 |
4.2 |
|
Form of 2014 Share Option Scheme of Registrant |
|
F-1 |
|
333-260492 |
|
10.1 |
|
03/08/2022 |
4.3 |
|
Form of 2021 Share Option Scheme (including sub-plan for U.S. based persons) of Registrant |
|
F-1 |
|
333-260492 |
|
10.2 |
|
03/08/2022 |
4.4 |
|
Form of 2021 Company Share Option Plan (CSOP) of Registrant |
|
F-1 |
|
333-260492 |
|
10.3 |
|
03/08/2022 |
4.5 |
|
Convertible Loan Note, up to $20,000,000 in principal amount |
|
F-1 |
|
333-260492 |
|
10.6 |
|
03/08/2022 |
4.6 |
|
Form of Lock Up Agreement of Pre-IPO Smaller Shareholders |
|
F-1 |
|
333-260492 |
|
10.8 |
|
03/08/2022 |
4.7 |
|
Form of Lock Up Agreement of Pre-IPO Management and Larger Shareholders |
|
F-1 |
|
333-260492 |
|
10.9 |
|
03/08/2022 |
4.8 |
|
Form of Lock Up Agreement of Holders of Convertible Loan Notes |
|
F-1 |
|
333-260492 |
|
10.10 |
|
03/08/2022 |
4.9 |
|
Form of Deed of Indemnity for directors and officer |
|
20-F |
|
001-41231 |
|
4.10 |
|
05/13/2022 |
4,10 |
|
Description of Securities of Registrant |
|
20-F |
|
001-41231 |
|
4.11 |
|
05/13/2022 |
4.11 |
|
Code of Ethics of the Registrant |
|
F-1 |
|
333-260492 |
|
11.1 |
|
03/08/2022 |
4.12 |
|
Form of Pre-Funded Warrant |
|
6-K |
|
001-41231 |
|
10.1 |
|
11/30/2022 |
4.13 |
|
Form of Series A and Series B Ordinary Warrant |
|
6-K |
|
001-41231 |
|
10.2 |
|
11/30/2022 |
4.14 |
|
Form of Placement Agent Warrant |
|
6-K |
|
001-41231 |
|
10.3 |
|
11/30/2022 |
4.15 |
|
Form of Pre-Funded Warrant |
|
6-K |
|
001-41231 |
|
10.1 |
|
03/30/2023 |
4.16 |
|
Form of Placement Agent Warrant |
|
6-K |
|
001-41231 |
|
10.3 |
|
03/30/2023 |
4.17 |
|
Form of Series C Ordinary Warrant |
|
6-K |
|
001-41231 |
|
10.2 |
|
03/30/2023 |
4.18 |
|
Form of Series D Ordinary Warrant |
|
6.K |
|
001-41231 |
|
4.1 |
|
08/31/2023 |
4.19* |
|
Form of Pre-Funded Warrant for this Offering |
|
|
|
|
|
|
|
|
4.20* |
|
Form of Series E Ordinary Warrant for this Offering |
|
|
|
|
|
|
|
|
4.21* |
|
Form of Placement Agent Warrant for this Offering |
|
|
|
|
|
|
|
|
5.1 |
|
Opinion of Addleshaw Goddard LLP |
|
|
|
|
|
|
|
|
5.2* |
|
Opinion of Sheppard, Mullin, Richter & Hampton LLP ⸶ |
|
|
|
|
|
|
|
|
10.1 |
|
Form of Securities Purchase Agreement for Nov 2022 Private Placement |
|
6-K |
|
001-41231 |
|
10.4 |
|
11/30/2022 |
10.2 |
|
Form of Registration Rights Agreement for Nov 2022 Private Placement |
|
6-K |
|
001-41231 |
|
10.5 |
|
03/30/2023 |
10.3 |
|
Form of Securities Purchase Agreement |
|
6-K |
|
001-41231 |
|
10.4 |
|
03/30/2023 |
10.4 |
|
Warrant Amendment Agreement, dated March 27, 2023 |
|
6-K |
|
001-41231 |
|
10.5 |
|
03/30/2023 |
10.5 |
|
Warrant Amendment Agreement, dated July 10, 2023 |
|
6-K |
|
001-41231 |
|
10.1 |
|
07/24/2023 |
10.6 |
|
Form of Inducement Letter, dated August 30, 2023 |
|
6.K |
|
001-41231 |
|
10.1 |
|
08/31/2023 |
10.7* |
|
Form of Securities Purchase Agreement for this Offering |
|
|
|
|
|
|
|
|
16.1 |
|
Letter of Ernst & Young LLP, dated November 18, 2022 |
|
6-K |
|
001-41231 |
|
16.1 |
|
11/18/2022 |
21.1 |
|
List of Subsidiaries of Registrant |
|
F-1 |
|
333-260492 |
|
21.1 |
|
03/08/2022 |
23.1* |
|
Consent of Marcum LLP, independent registered public accounting firm |
|
|
|
|
|
|
|
|
23.2* |
|
Consent of Ernst & Young LLP, independent registered public accounting firm |
|
|
|
|
|
|
|
|
23.3 |
|
Consent of Addleshaw Goddard LLP (included in Exhibit 5.1) |
|
|
|
|
|
|
|
|
23.4* |
|
Consent of Sheppard, Mullin, Richter & Hampton LLP (included in Exhibit 5.2) |
|
|
|
|
|
|
|
|
24.1 |
|
Power of Attorney (included as part of the signature page of original filed Registration Statement) |
|
|
|
|
|
|
|
|
107* |
|
Filing Fee Table |
|
|
|
|
|
|
|
|
*Previously
Filed
Item
9. 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, as amended, or 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 any 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 SEC 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 paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is
on Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934, as amended, or Exchange Act, 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. |
|
(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 Exchange Act need not be furnished, provided that the registrant includes in the prospectus, by means
of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to
ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding
the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the Exchange Act or Rule 3-19 of Regulation S-K if such financial statements
and information are contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in this Form F-3. |
|
(5) |
That,
for the purpose of determining liability under the Securities Act to any purchaser: |
|
(i) |
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and |
|
(ii) |
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which 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. |
|
(6) |
That,
for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold
to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and
will be considered to offer or sell such securities to such purchaser: |
|
(i) |
Any
preliminary prospectus or prospectus of the undersigned registrant 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 containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and |
|
|
|
|
(iv) |
Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(B) |
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. |
(C) |
The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies it has reasonable grounds to believe that it meets all of
the requirements for filing this amended registration statement on Form F-1 with the Securities and Exchange Commission and has duly
caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Glasgow, Scotland, United
Kingdom, on December 14, 2023.
|
TC
BIOPHARM (HOLDINGS) PLC |
|
|
|
By: |
/s/
Bryan Kobel |
|
Name: |
Bryan
Kobel |
|
Title: |
Chief
Executive Officer |
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Bryan Kobel |
|
Chief
Executive Officer and Director (Principal Executive Officer) |
|
December
14, 2023 |
Bryan
Kobel |
|
|
|
|
|
|
|
|
|
/s/
Martin Thorp |
|
Chief
Financial Officer and Director (Principal Financial and |
|
December
14, 2023 |
Martin
Thorp |
|
Accounting
Officer) |
|
|
|
|
|
|
|
* |
|
Non-Executive
Director |
|
December
14, 2023 |
Dr
Mark Bonyhadi |
|
|
|
|
|
|
|
|
|
* |
|
Non-Executive
Director |
|
December
14, 2023 |
James
Culverwell |
|
|
|
|
|
|
|
|
|
* |
|
Chair
of the Board and Non-Executive Director |
|
December
14, 2023 |
Arlene
Morris |
|
|
|
|
|
|
|
|
|
* |
|
Non-Executive
Director |
|
December
14, 2023 |
Edward
Niemczyk |
|
|
|
|
*
By: |
/s/
Bryan Kobel |
|
|
Bryan
Kobel |
|
|
Attorney-in-Fact |
|
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 the registrant has signed
this registration statement or amendment thereto on December 14, 2023.
|
TC
BioPharm (North America) Inc. |
|
|
|
|
By: |
/s/
Bryan Kobel |
|
Name: |
Bryan
Kobel |
|
Title: |
Chief
Executive Officer and Director |
|
|
|
|
|
Authorized
Representative in the United States |
Exhibit 1.1
Exhibit
5.1
Our
reference JACKM/374423-5
14
December 2023
TC
BioPharm (Holdings) plc (Company)
Maxim
1, 2 Parklands Way
Holytown
Motherwell
ML1 4WR
Scotland
United Kingdom
Dear
Sir / Madam
We
are lawyers qualified to practice law in Scotland. We have acted as counsel to the Company to provide this legal opinion in connection
with the Company’s registration statement on Form F-1, filed under the Securities Act of 1933, as amended (the “Act”),
including all amendments or supplements thereto, with the Securities and Exchange Commission (the “Commission”) (the “
Registration Statement”), which relates to the registration, offering and sale of (a) ordinary shares of £0.0001 par value
each (“Ordinary Shares”) in the form of American Depositary Shares (“ADS”), issued by the Bank of New York Mellon
at the rate of twenty Ordinary Shares for each ADS; (b) warrants (“Warrants”), each Warrant to purchase Ordinary Shares pursuant
to the terms of the Pre-Funded Warrant Instrument, the E Warrant Instrument, and the Placement Agent Warrant Instrument (each as defined
below), (c) Ordinary Shares which may be issued upon exercise of the Warrants (together the “Underlying Securities”), offered
and sold by the Company pursuant to the terms of the SPA (as defined below).
We
have reviewed originals, copies or drafts of the following documents:
1.1 | The
public records of the Company on file and available for online inspection at the Registrar
of Companies in Scotland on 14 December 2023 including: |
| (a) | the
Company’s original Memorandum and Articles of Association; |
| (b) | the
Company’s Articles of Association adopted on 15 February 2022 and amended on 14 November
2021. |
1.2 | The
resolutions of the shareholders of the Company passed at the shareholder meetings of the
Company which took place on 14 January 2022, 3 February 2022, and 14 November 2022 (“Shareholder
Resolutions”). |
1.3 | A
final draft of each of: |
| (a) | the
securities purchase agreement dated to be entered into between the Company and each of the
several purchasers signatory thereto (“SPA”); |
| (b) | the
pre-funded warrant to purchase Ordinary Shares represented by ADSs by the Company (“Pre-Funded
Warrant Instrument”); |
Addleshaw
Goddard LLP, Cornerstone, 107 West Regent Street, Glasgow G2 2BA
Tel +44 (0)141 221 2300 Fax +44 (0)141 221 5800 DX GW120 Glasgow
www.addleshawgoddard.com
Addleshaw
Goddard LLP is a limited liability partnership registered in England and Wales (with registered number OC318149) and is authorised and
regulated by the Solicitors Regulation Authority (with authorisation number 440721) and the Law Society of Scotland. A list of members
is open to inspection at our registered office, Milton Gate, 60 Chiswell Street, London EC1Y 4AG. The term partner refers to any individual
who is a member of any Addleshaw Goddard entity or association or an employee or consultant with equivalent standing based on their experience
and/or qualifications.
TC
BioPharm (Holdings) plc | 14
December 2023 |
| (c) | the
Series E warrant to purchase Ordinary Shares represented by ADSs by the Company (“E
Warrant Instrument”); and |
| (d) | the
placement agent warrant to purchase Ordinary Shares represented by ADSs by the Company (“Placement
Agent Warrant Instrument”). |
In
giving this opinion we have assumed, without further verification, the completeness and accuracy of all documentation that we have reviewed.
We have also relied upon the following assumptions, which we have not independently verified:
2.1 | Copies
of documents, conformed copies or drafts of documents provided to us are true and complete
copies of, or in the final forms of, the originals. |
2.2 | That
the final forms of the SPA, the E Warrant Instrument, Pre-Funded Warrant Instrument, and
the Placement Agent Warrant Instrument provided by the parties thereto will conform in all
respects to the drafts thereof as filed with the Registration Statement and will be executed
by the parties. |
2.3 | All
signatures, initials and seals are genuine. |
2.4 | The
accuracy and completeness of all factual representations expressed in or implied by the documents
we have examined. |
2.5 | That
all public records of the Company which we have examined are accurate and that the information
disclosed by the online search which we conducted against the Company on 14 December 2023
is true and complete and that such information has not since then been altered and that such
searches did not fail to disclose any information which had been delivered for registration
but did not appear on the public records at the date of our searches. |
2.6 | The
Shareholder Resolutions remain in full force and effect and have not been revoked and that
the following the issue of Ordinary Shares pursuant to the SPA, the Pre-Funded Warrant Instrument,
the E Warrant Instrument, and the Placement Agent Warrant Instrument and pursuant to all
other instruments to which the Company is party the issued share capital of the Company shall
not exceed £2,000,000 in nominal value. |
2.7 | The
Company shall receive at least the nominal value of each Ordinary Share in cash in return
for issuing Ordinary Shares pursuant to the SPA, the Pre-Funded Warrant Instrument, the E
Warrant Instrument, and the Placement Agent Warrant Instrument. |
2.8 | There
is nothing under any law (other than the law of the Scotland) which would or might affect
the opinions hereinafter appearing. Specifically, we have made no independent investigation
of the laws of the USA. |
Based
upon, and subject to, the foregoing assumptions and the qualifications set out in section 4 below, and having regard to such legal considerations
as we consider relevant, we are of the opinion that:
3.1 | The
Company is a public company limited by shares and registered under the Companies Act 2006
(the “Act”) validly existing under the laws of Scotland, and possesses the capacity
to sue and be sued in its own name. |
3.2 | The
Company is, subject to board approval, authorised to issue the Ordinary Shares to be issued
by the Company for issuance in connection with the ADSs and the Underlying Securities. |
TC
BioPharm (Holdings) plc | 14
December 2023 |
3.3 | The
Underlying Securities are authorised for issue by the shareholders of the Company subject
to board approval, and when their issue is approved by the board of the Company against payment
in full, in accordance with the terms set out in the SPA, the Pre-Funded Warrant Instrument,
the E Warrant Instrument, and the Placement Agent Warrant Instrument as applicable (which
payment shall in all circumstances and notwithstanding the terms of such agreements/instruments
represent at least the nominal value of the Underlying Securities in cash), and duly registered
in the Company’s register of members (shareholders), such Underlying Securities will
be validly authorised, issued, fully paid and non-assessable (meaning that no further sums
are payable to the Company on such Underlying Securities). |
The
opinions expressed above are subject to the following qualifications:
4.1 | The
obligations of the Company may be subject to restrictions pursuant to any agreement to which
it is party which has not been reviewed by us. |
4.2 | We
make no comment with regard to any references to foreign law or statutes in the Registration
Statement. |
4.3 | This
opinion is given only as to, and based on, circumstances and matters of fact existing and
known to us on the date of this opinion. This opinion only relates to the laws of Scotland
which are in force on the date of this opinion. |
In
connection with the above opinion, we hereby consent:
5.1 | To
the use of our name in the Registration Statement, the prospectus constituting a part thereof
and all amendments thereto under the caption “Legal Matters”; and |
5.2 | To
the filing of this opinion as an exhibit to the Registration Statement. |
This
opinion may be relied upon by the addressee only. It may not be relied upon by any other person except with our prior written consent.
This
opinion is limited to the matters detailed herein and is not to be read as an opinion with respect to any other matter.
Yours
faithfully,
Addleshaw
Goddard LLP
Direct
line | +44
(0)141 574 2371 |
Email | murray.jack@addleshawgoddard.com |
TC BioPharm (NASDAQ:TCBP)
Gráfico Histórico do Ativo
De Ago 2024 até Set 2024
TC BioPharm (NASDAQ:TCBP)
Gráfico Histórico do Ativo
De Set 2023 até Set 2024