UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
6-K
REPORT
OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16 UNDER THE SECURITIES EXCHANGE ACT OF 1934
December
2023
Commission
File Number: 001-41386
OKYO
Pharma LTD
(Exact
Name of Registrant as Specified in Its Charter)
9th
Floor
107
Cheapside
London
EC2V
6DN
(Address
of principal executive office)
Indicate
by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40 F.
Form
20-F ☒ Form 40-F ☐
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐
Indicate
by check mark whether by furnishing the information contained in this Form, the registrant is also thereby furnishing the information
to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes
☐ No ☒
If
“Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82-
INFORMATION
CONTAINED IN THIS REPORT ON FORM 6-K
On
December 20, 2023, OKYO Pharma Limited (the “Company”) entered into an At Market Issuance Sale Agreement (the “Offering
Agreement”) with B. Riley Securities, Inc. (“B. Riley”) with respect to an at the market offering program under which
the Company may offer and sell, from time to time, ordinary shares, no par value (“Ordinary Shares”), having an aggregate
offering price of up to $4,000,000 through B. Riley acting as its sales agent or directly to B. Riley, acting as principal.
The Ordinary Shares to be offered and sold under the Offering Agreement, if any, will be offered and sold pursuant to the Company’s
shelf registration statement on Form F-3 (File No. 333-272516), which was filed with the Securities and Exchange Commission (“SEC”)
on June 8, 2023 (the “Registration Statement”) and declared effective on June 14, 2023. A prospectus supplement related to
this at the market offering program with B. Riley was filed on December 20, 2023.
Pursuant
to the Offering Agreement, sales of Ordinary Shares may be made by any method permitted by law deemed to be an “at-the-market
offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended (the “Securities
Act”). If the Company and B. Riley agree on
any method of distribution other than sales of Ordinary Shares into The Nasdaq Capital Market or another existing trading market in the
United States at market prices, the Company will file a further prospectus supplement providing all information about such offering as
required by Rule 424(b) under the Securities Act.
B.
Riley will offer Ordinary Shares at prevailing market prices subject to the terms and conditions of the Offering Agreement as agreed
upon by the Company and B. Riley. The Company will designate the number of shares which it desires to sell, the time period during which
sales are requested to be made, any limitation on the number of shares that may be sold in one day and any minimum price below which
sales may not be made. Subject to the terms and conditions of the Offering Agreement, B. Riley will use its commercially reasonable efforts
consistent with its normal trading and sales practices and applicable laws and regulations to sell on the Company’s behalf all
of the shares requested to be sold by the Company. The Company is not obligated to make any sales of Ordinary Shares under the Offering
Agreement. The Company or B. Riley may suspend the offering of the Ordinary Shares being made through B. Riley under the Offering Agreement
at any time upon proper notice to the other party.
The
Company will pay B. Riley a cash commission of up to 3.0% of the gross sales price of the Ordinary Shares that B. Riley sells pursuant
to the Offering Agreement. Because there is no minimum offering amount required as a condition to this offering, the actual total offering
amount, commissions and proceeds to us, if any, are not determinable at this time. In addition, the Company has agreed to reimburse B.
Riley for the documented fees and costs of its legal counsel reasonably incurred in connection with entering into the transactions contemplated
by the Offering Agreement in an amount not to exceed $75,000 in the aggregate, in addition to (for B. Riley’s counsel’s fees)
up to $5,000 per calendar quarter, for ongoing diligence arising from the transactions contemplated by the Offering Agreement.
The
Offering Agreement contains representations, warranties and covenants that are customary for transactions of this type. In addition,
the Company has agreed to provide indemnification and contribution to B. Riley against certain liabilities, including liabilities under
the Securities Act.
The
foregoing description of the Offering Agreement is qualified in its entirety by reference to the full text of the Offering Agreement,
a copy of which is included as Exhibit 1.1 to this Form 6-K and is incorporated by reference herein.
This
Current Report on Form 6-K shall not constitute an offer to sell or the solicitation of an offer to buy the securities discussed herein,
nor shall there be any offer, solicitation, or sale of the securities in any state or other jurisdiction in which such offer, solicitation
or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
The
legal opinion of Carey Olsen (Guernsey) LLP, counsel to the Company, relating to the legality of the issuance and sale of the Ordinary
Shares pursuant to the Offering Agreement is filed as Exhibit 5.1 hereto.
EXHIBITS
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
| |
OKYO
Pharma LTD |
| |
|
| Date:
December 21, 2023 |
By: |
/s/
Gary S. Jacob |
| |
|
Gary
S. Jacob |
| |
|
Chief
Executive Officer |
Exhibit
1.1
Execution
Version
OKYO
PHARMA LIMITED
Ordinary
Shares
(no
par value)
At
Market Issuance Sales Agreement
B.
Riley Securities, Inc.
299
Park Avenue, 21st Floor
New
York, NY 10171
Ladies
and Gentlemen:
OKYO
Pharma Limited, a public limited liability company incorporated under the laws of Guernsey (the “Company”), confirms
its agreement (this “Agreement”) with B. Riley Securities, Inc. (the “Agent”) as follows:
1.
Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject
to the conditions set forth herein, it may issue and sell through or to the Agent, as sales agent or principal, shares (the “Placement
Shares”); of the Company’s ordinary shares, no par value (the “Ordinary Shares”); provided however,
that in no event shall the Company issue or sell through the Agent such number of Placement Shares that (a) exceeds the number of
shares or dollar amount of Ordinary Shares registered on the effective Registration Statement (as defined below) pursuant to which the
offering is being made or (b) exceeds the number of shares or dollar amount registered on the Prospectus Supplement (as defined below)
(the lesser of (a) or (b) the “Maximum Amount”) and provided further, however, that in no event shall the aggregate
number of Placement Shares sold pursuant to this Agreement exceed the number of authorized but unissued Ordinary Shares. Notwithstanding
anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section
1 on the number of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that
the Agent shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares through the Agent will
be effected pursuant to the Registration Statement (as defined below), although nothing in this Agreement shall be construed as requiring
the Company to use the Registration Statement to issue any Placement Shares.
The
Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended and the rules and regulations thereunder
(the “Securities Act”), with the Securities and Exchange Commission (the “Commission”), a registration
statement on Form F-3 (File No. 333-272516), including a base prospectus, relating certain securities including the Placement Shares
to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file
in accordance with the provisions of the Securities Exchange Act of 1934, as amended and the rules and regulations thereunder (the “Exchange
Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of such registration statement
specifically relating to the Placement Shares (the “Prospectus Supplement”). The Company will furnish to the Agent,
for use by the Agent, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus
Supplement, relating to the Placement Shares. Except where the context otherwise requires, such registration statement, and any post-effective
amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information
contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act
or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, or any subsequent registration statement
on Form F-3 filed pursuant to Rule 415 under the Securities Act by the Company to cover any Placement Shares, is herein called the “Registration
Statement.” The base prospectus, including all documents incorporated or deemed incorporated therein by reference to the extent
such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g)
of the Securities Act), included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in
which such base prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to
Rule 424(b) under the Securities Act is herein called the “Prospectus.” Any reference herein to the Registration Statement,
the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference
therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect
to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any
document with the Commission incorporated by reference therein (the “Incorporated Documents”).
For
purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall
be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval
System, or if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “EDGAR”).
2.
Placements. Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”),
it will notify the Agent by electronic mail (or other method mutually agreed to in writing by the parties) of the number of Placement
Shares, the time period during which sales are requested to be made, any limitation on the number of Placement Shares that may be sold
in any one day and any minimum price below which sales may not be made (a “Placement Notice”), the form of which is
attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set forth on
Schedule 3 (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to
each of the individuals from the Agent set forth on Schedule 3, as such Schedule 3 may be amended from time to time. The
Placement Notice shall be effective immediately upon receipt by the Agent unless and until (i) the Agent declines to accept the terms
contained therein for any reason, in its sole discretion, (ii) the entire amount of the Placement Shares thereunder has been sold, (iii)
the Company suspends or terminates the Placement Notice, which suspension and termination rights may be exercised by the Company in its
sole discretion, or (iv) this Agreement has been terminated under the provisions of Section 13. The amount of any discount, commission
or other compensation to be paid by the Company to the Agent in connection with the sale of the Placement Shares shall be calculated
in accordance with the terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Company nor the
Agent will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a
Placement Notice to the Agent and the Agent does not decline such Placement Notice pursuant to the terms set forth above, and then only
upon the terms specified therein and herein. In the event of a conflict between the terms of Sections 2 or 3 of this Agreement
and the terms of a Placement Notice, the terms of the Placement Notice will control.
3.
Sale of Placement Shares by the Agent. Subject to the terms and conditions of this Agreement, for the period specified in a Placement
Notice, the Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable
state and federal laws, rules and regulations and the rules of the Nasdaq Capital Market (the “Exchange”), to sell
the Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Agent will
provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately following the
Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the
compensation payable by the Company to the Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined
below) payable to the Company, with an itemization of the deductions made by the Agent (as set forth in Section 5(b)) from the
gross proceeds that it receives from such sales. Subject to the terms of a Placement Notice, the Agent may sell Placement Shares by any
method permitted by law deemed to be an “at the market offering” as defined in Rule 415 of the Securities Act. “Trading
Day” means any day on which shares of Ordinary Shares are purchased and sold on the Exchange.
4.
Suspension of Sales. The Company or the Agent may, upon notice to the other party in writing (including by email correspondence
to each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged
by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable
facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend
any sale of Placement Shares (a “Suspension”); provided, however, that such suspension shall not affect or
impair any party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. While a
Suspension is in effect, any obligation under Sections 7(l), 7(m), and 7(n) with respect to the delivery of certificates,
opinions, or comfort letters to the Agent, shall be waived. Each of the parties agrees that no such notice under this Section 4
shall be effective against any other party unless it is made to one of the individuals named on Schedule 3 hereto, as such Schedule
may be amended from time to time.
5.
Sale and Delivery to the Agent; Settlement.
a.
Sale of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described
therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent, for the period
specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable state and federal laws, rules and regulations and the rules of the Exchange to sell such Placement Shares up to the amount
specified in, and otherwise in accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (i) there
can be no assurance that the Agent will be successful in selling Placement Shares, (ii) the Agent will incur no liability or obligation
to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Agent to
use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws,
rules and regulations and the rules of the Exchange to sell such Placement Shares as required under this Agreement and (iii) the Agent
shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed
by the Agent and the Company.
b.
Settlement of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement
Shares will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following
the date on which such sales are made (each, a “Settlement Date”). The Agent shall notify the Company of each sale
of Placement Shares no later than opening day following the Trading Day that the Agent sold Placement Shares. The amount of proceeds
to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”)
will be equal to the aggregate sales price received by the Agent, after deduction for (i) the Agent’s commission, discount or other
compensation for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction fees imposed by any governmental
or self-regulatory organization in respect of such sales.
c.
Delivery of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting the Agent’s or its designee’s account (provided the Agent shall have
given the Company written notice of such designee and such designee’s account information at least one Trading Day prior to the
Settlement Date) at The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery
as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradable, transferable, registered shares in
good deliverable form. On each Settlement Date, the Agent will deliver the related Net Proceeds in same day funds to an account designated
by the Company on, or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults
in its obligation to deliver Placement Shares on a Settlement Date through no fault of the Agent, then in addition to and in no way limiting
the rights and obligations set forth in Section 11(a) hereto, it will (i) hold the Agent harmless against any loss, claim, damage,
or reasonable, documented expense (including reasonable and documented legal fees and expenses), as incurred, arising out of or in connection
with such default by the Company or its transfer agent (if applicable) and (ii) pay to the Agent (without duplication) any commission,
discount, or other compensation to which it would otherwise have been entitled absent such default.
d.
Limitations on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares
if, after giving effect to the sale of such Placement Shares, the aggregate number of Placement Shares sold pursuant to this Agreement
would exceed the lesser of (A) together with all sales of Placement Shares under this Agreement, the Maximum Amount, (B) the amount available
for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued
and sold under this Agreement by the Company’s board of directors, a duly authorized committee thereof or a duly authorized executive
committee, and notified to the Agent in writing. Under no circumstances shall the Company cause or request the offer or sale of any Placement
Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the Company’s board of
directors, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Agent in writing.
6.
Representations and Warranties of the Company. Except as disclosed in the Registration Statement or Prospectus (including the
Incorporated Documents), the Company represents and warrants to, and agrees with the Agent that as of the date of this Agreement and
as of each Applicable Time (as defined below), unless such representation, warranty or agreement specifies a different date or time:
a.
Registration Statement and Prospectus. The transactions contemplated by this Agreement meet the requirements for and comply with
the conditions for the use of Form F-3 under the Securities Act. The Registration Statement has been filed with the Commission and has
been declared effective under the Securities Act. The Prospectus Supplement will name the Agent as the agent in the section entitled
“Plan of Distribution.” The Company has not received, and has no notice of, any order of the Commission preventing or suspending
the use of the Registration Statement, or threatening or instituting proceedings for that purpose. The Registration Statement and the
offer and sale of Placement Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act and comply in all
material respects with said Rule. Any statutes, regulations, contracts or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration Statement have been so described or filed, as applicable.
Copies of the Registration Statement, the Prospectus, and any such amendments or supplements and all documents incorporated by reference
therein that were filed with the Commission on or prior to the date of this Agreement have been delivered, or are available through EDGAR,
to the Agent and its counsel. The Company has not distributed and, prior to the later to occur of each Settlement Date and completion
of the distribution of the Placement Shares, will not distribute any offering material in connection with the offering or sale of the
Placement Shares other than the Registration Statement and the Prospectus and any Issuer Free Writing Prospectus (as defined below) to
which the Agent has consented, which consent will not be unreasonably withheld or delayed, or that is required by applicable law or the
listing maintenance requirements of the Exchange. The Ordinary Shares are currently quoted on the Exchange under the trading symbol “OKYO.”
The Company has not, in the 12 months preceding the date hereof, received notice from the Exchange to the effect that the Company is
not in compliance with the listing or maintenance requirements of the Exchange. To the Company’s knowledge, it is in compliance
with all such listing and maintenance requirements.
b.
No Misstatement or Omission. At each Settlement Date, the Registration Statement and the Prospectus, as of such date, will conform
in all material respects with the requirements of the Securities Act. The Registration Statement, when it became or becomes effective,
did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. The Prospectus and any amendment and supplement thereto, on the date thereof
and at each Applicable Time (defined below), did not or will not include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The documents
incorporated by reference in the Prospectus or any Prospectus Supplement did not, and any further documents filed and incorporated by
reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material
fact required to be stated in such document or necessary to make the statements in such document, in light of the circumstances under
which they were made, not misleading. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance
upon, and in conformity with, information furnished to the Company by the Agent specifically for use in the preparation thereof.
c.
Conformity with Securities Act and Exchange Act. The Registration Statement, the Prospectus, any Issuer Free Writing Prospectus
or any amendment or supplement thereto, and the Incorporated Documents, when such documents were or are filed with the Commission under
the Securities Act or the Exchange Act or became or become effective under the Securities Act, as the case may be, conformed or will
conform in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable.
d.
Financial Information. The consolidated financial statements of the Company included or incorporated by reference in the Registration
Statement and the Prospectus, together with the related notes and schedules, present fairly, in all material respects, the consolidated
financial position of the Company and the Subsidiaries (as defined below) as of the dates indicated and the consolidated results of operations,
cash flows and changes in stockholders’ equity of the Company and the Subsidiaries for the periods specified (subject, in the case
of unaudited statements, to normal year-end audit adjustments which will not be material, either individually or in the aggregate) and
have been prepared in compliance with the published requirements of the Securities Act and Exchange Act, as applicable, and in conformity
with International Financial Reporting Standards as adopted in the European Union (“IFRS”) applied on a consistent
basis (except (i) for such adjustments to accounting standards and practices as are noted therein and (ii) in the case of unaudited interim
statements, to the extent they may exclude footnotes or may be condensed or summary statements) during the periods involved; the other
financial and statistical data with respect to the Company and the Subsidiaries contained or incorporated by reference in the Registration
Statement and the Prospectus, are accurately and fairly presented and prepared on a basis consistent with the financial statements and
books and records of the Company; there are no financial statements (historical or pro forma) that are required to be included or incorporated
by reference in the Registration Statement, or the Prospectus that are not included or incorporated by reference as required; the Company
and the Subsidiaries do not have any material liabilities or obligations, direct or contingent (including any off balance sheet obligations),
not described in the Registration Statement, and the Prospectus which are required to be described in the Registration Statement or Prospectus;
and all disclosures contained or incorporated by reference in the Registration Statement and the Prospectus, if any, regarding “non-IFRS
financial measures” (correlating to “non-GAAP financial measures”, as such term is defined in the Rules and Regulations)
comply in all material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the
extent applicable.
e.
Conformity with EDGAR Filing. The Prospectus delivered to the Agent for use in connection with the sale of the Placement Shares
pursuant to this Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing
via EDGAR, except to the extent permitted by Regulation S-T.
f.
Organization. The Company and any subsidiary that is a significant subsidiary (as such term is defined in Rule 1-02 of Regulation
S-X promulgated by the Commission) (each, a “Subsidiary,” collectively, the “Subsidiaries”), are,
and will be, duly organized, validly existing as a corporation and in good standing under the laws of their respective jurisdictions
of organization. The Company and the Subsidiaries are duly licensed or qualified as a foreign corporation for transaction of business
and in good standing under the laws of each other jurisdiction in which their respective ownership or lease of property or the conduct
of their respective businesses requires such license or qualification, and have all corporate power and authority necessary to own or
hold their respective properties and to conduct their respective businesses as described in the Registration Statement and the Prospectus,
except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate,
have a material adverse effect on the assets, business, operations, earnings, properties, condition (financial or otherwise), prospects,
stockholders’ equity or results of operations of the Company and the Subsidiaries taken as a whole, or prevent the consummation
of the transactions contemplated hereby (a “Material Adverse Effect”).
g.
Subsidiaries. The Company owns directly or indirectly, all of the equity interests of the Subsidiaries free and clear of any lien,
charge, security interest, encumbrance, right of first refusal or other restriction, and all the equity interests of the Subsidiaries
are validly issued and are fully paid, nonassessable and free of preemptive and similar rights. The Company does not own or control,
directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21.1 to the Company’s
Annual Report on Form 10-K for the most recently ended fiscal year and other than (i) those subsidiaries not required to be listed on
Exhibit 21.1 by Item 601 of Regulation S-K under the Exchange Act and (ii) those subsidiaries formed since the last day of the most recently
ended fiscal year.
h.
No Violation or Default. Neither the Company nor any Subsidiary is (i) in violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement
or other similar agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary
is bound or to which any of the property or assets of the Company or any Subsidiary is subject; or (iii) in violation of any law or statute
or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of
each of clauses (ii) and (iii) above, for any such violation or default that would not, individually or in the aggregate, have a Material
Adverse Effect. To the Company’s knowledge, no other party under any material contract or other agreement to which it or any Subsidiary
is a party is in default in any respect thereunder where such default would have a Material Adverse Effect.
i.
No Material Adverse Effect. Since the date of the most recent financial statements of the Company included or incorporated by
reference in the Registration Statement and Prospectus, there has not been (i) any Material Adverse Effect, or any development that would
result in a Material Adverse Effect, (ii) any transaction which is material to the Company and the Subsidiaries taken as a whole, (iii)
any obligation or liability, direct or contingent (including any off-balance sheet obligations), incurred by the Company or the Subsidiaries,
which is material to the Company and the Subsidiaries taken as a whole, (iv) any material change in the capital stock (other than (A)
the grant of additional options under the Company’s existing stock option plans, (B) changes in the number of outstanding Ordinary
Shares of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into,
Ordinary Shares outstanding on the date hereof, (C) as a result of the issuance of Placement Shares, (D) any repurchases of capital stock
of the Company, (E) as described in a proxy statement filed on Schedule 14A or a Registration Statement on Form S-4, or (F) otherwise
publicly announced) or outstanding long-term indebtedness of the Company or the Subsidiaries or (v) any dividend or distribution of any
kind declared, paid or made on the capital stock of the Company or any Subsidiary, other than in each case above in the ordinary course
of business or as otherwise disclosed in the Registration Statement or Prospectus (including any document incorporated by reference therein).
j.
Capitalization. The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and
non-assessable and, other than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive rights,
rights of first refusal or similar rights. The Company has an authorized, issued and outstanding capitalization as set forth in the Registration
Statement and the Prospectus as of the dates referred to therein (other than (i) the grant of additional options under the Company’s
existing stock option plans, (ii) changes in the number of outstanding Ordinary Shares of the Company due to the issuance of shares upon
the exercise or conversion of securities exercisable for, or convertible into, Ordinary Shares outstanding on the date hereof, (iii)
as a result of the issuance of Placement Shares, or (iv) any repurchases of capital stock of the Company) and such authorized capital
stock conforms to the description thereof set forth in the Registration Statement and the Prospectus. The description of the Ordinary
Shares in the Registration Statement and the Prospectus is complete and accurate in all material respects. Except as disclosed in or
contemplated by the Registration Statement or the Prospectus, the Company did not have outstanding any options to purchase, or any rights
or warrants to subscribe for, or any securities or obligations convertible into, or exchangeable for, or any contracts or commitments
to issue or sell, any shares of capital stock or other securities.
k.
F-3 Eligibility. At the time the Registration Statement was or will be declared effective, and at the time the Company’s
most recent Annual Report on Form 20-F was filed with the Commission, the Company met or will meet the then applicable requirements for
the use of Form F-3 under the Securities Act, including, but not limited to, General Instruction I.B.5 of Form F-3, if applicable. As
of the close of trading on the Exchange on November 3, 2023, the aggregate market value of the outstanding voting and non-voting common
equity (as defined in Rule 405) of the Company held by persons other than affiliates of the Company (pursuant to Rule 144 of the Securities
Act, those that directly, or indirectly through one or more intermediaries, control, or are controlled by, or are under common control
with, the Company) (the “Non-Affiliate Shares”), was approximately $38.37 million (calculated by multiplying (x) the
price at which the common equity of the Company was last sold on the Exchange on November 3, 2023 times (y) the number of Non-Affiliate
Shares). The Company is not a shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company for at
least 12 calendar months previously and if it has been a shell company at any time previously, has filed current Form 10 information
(as defined in General Instruction I.B.5 of Form F-3) with the Commission at least 12 calendar months previously reflecting its status
as an entity that is not a shell company.
l.
Authorization; Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform
the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal,
valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except to the extent that (i)
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights
generally and by general equitable principles and (ii) the indemnification and contribution provisions of Section 11 hereof may
be limited by federal or state securities laws and public policy considerations in respect thereof.
m.
Authorization of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved by the board
of directors of the Company or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor
as provided herein, will be duly and validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien,
encumbrance, security interest or other claim (other than any pledge, lien, encumbrance, security interest or other claim arising from
an act or omission of the Agent or a purchaser), including any statutory or contractual preemptive rights, resale rights, rights of first
refusal or other similar rights, and will be registered pursuant to Section 12 of the Exchange Act. The Placement Shares, when issued,
will conform in all material respects to the description thereof set forth in or incorporated into the Prospectus.
n.
No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator
or any governmental or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement,
and the issuance and sale by the Company of the Placement Shares as contemplated hereby, except for such consents, approvals, authorizations,
orders and registrations or qualifications (i) as may be required under applicable state securities laws or by the by-laws and rules
of the Financial Industry Regulatory Authority (“FINRA”) or the Exchange, including any notices that may be required
by the Exchange, in connection with the sale of the Placement Shares by the Agent, (ii) as may be required under the Securities Act and
(iii) as have been previously obtained by the Company.
o.
No Preferential Rights. Except as disclosed in the Incorporated Documents, (i) No person, as such term is defined in Rule 1-02
of Regulation S-X promulgated under the Securities Act (each, a “Person”), has the right, contractual or otherwise,
to cause the Company to issue or sell to such Person any Ordinary Shares or shares of any other capital stock or other securities of
the Company (other than upon the exercise of options or warrants to purchase Ordinary Shares or upon the exercise of options that may
be granted from time to time under the Company’s stock option plan), (ii) no Person has any preemptive rights, rights of first
refusal, or any other rights (whether pursuant to a “poison pill” provision or otherwise) to purchase any Ordinary Shares
or shares of any other capital stock or other securities of the Company from the Company which have not been duly waived with respect
to the offering contemplated hereby, (iii) no Person has the right to act as an underwriter or as a financial advisor to the Company
in connection with the offer and sale of the Ordinary Shares, and (iv) no Person has the right, contractual or otherwise, to require
the Company to register under the Securities Act any Ordinary Shares or shares of any other capital stock or other securities of the
Company, or to include any such shares or other securities in the Registration Statement or the offering contemplated thereby, whether
as a result of the filing or effectiveness of the Registration Statement or the sale of the Placement Shares as contemplated thereby
or otherwise, except in each case for such rights as have been waived on or prior to the date hereof.
p.
Independent Public Accountant. PKF Littlejohn LLP (the “Accountant”), whose report on the consolidated financial
statements of the Company is filed with the Commission as part of the Company’s most recent Annual Report on Form 20-F filed with
the Commission and incorporated into the Registration Statement, are and, during the periods covered by their report, were independent
public accountants within the meaning of the Securities Act and the Public Company Accounting Oversight Board (United States). To the
Company’s knowledge, the Accountant is not in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002
(the “Sarbanes-Oxley Act”) with respect to the Company.
q.
Enforceability of Agreements. All agreements between the Company and third parties expressly referenced in the Prospectus, other
than such agreements that have expired by their terms or whose termination is disclosed in documents filed by the Company on EDGAR, are
legal, valid and binding obligations of the Company and, to the Company’s knowledge, enforceable in accordance with their respective
terms, except to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and by general equitable principles and (ii) the indemnification provisions of certain agreements
may be limited by federal or state securities laws or public policy considerations in respect thereof, and except for any unenforceability
that, individually or in the aggregate, would not have a Material Adverse Effect.
r.
No Litigation. There are no legal, governmental or regulatory actions, suits or proceedings pending, nor, to the Company’s
knowledge, any legal, governmental or regulatory investigations, including any proceeding before the United States Food and Drug Administration
of the U.S. Department of Health and Human Services (the “FDA”) or comparable federal, state, local or foreign governmental
authorities (it being understood that the interaction between the Company and the FDA and such comparable governmental authorities relating
to the clinical development and product approval process shall not be deemed proceedings for purposes of this representation), to which
the Company or a Subsidiary is a party or to which any property of the Company or any Subsidiary is the subject that, individually or
in the aggregate, if determined adversely to the Company or any Subsidiary, would have a Material Adverse Effect or materially and adversely
affect the ability of the Company to perform its obligations under this Agreement; to the Company’s knowledge, no such actions,
suits or proceedings are threatened or contemplated by any governmental or regulatory authority or threatened by others that, individually
or in the aggregate, if determined adversely to the Company or any Subsidiary, would have a Material Adverse Effect; and there are no
current or pending legal, governmental or regulatory actions, suits, proceedings or, to the Company’s knowledge, investigations
that are required under the Securities Act to be described in the Prospectus that are not described in the Prospectus (including any
Incorporated Document). The Company is in compliance with all applicable federal, state, local and foreign laws, regulations, orders
and decrees governing its business as enforced by the FDA, or any other federal, state or foreign agencies or bodies engaged in the regulation
of medical devices, except where noncompliance would not, singularly or in the aggregate, reasonably be expected to have a Material Adverse
Effect. All preclinical and clinical studies conducted by or on behalf of the Company to support clearance for commercialization of the
Company’s products have been conducted by the Company, or to the Company’s knowledge by third parties, in compliance with
all applicable federal, state or foreign laws, rules, orders and regulations, except for such failure or failures to be in compliance
as would not reasonably be expected to have, singularly or in the aggregate, a Material Adverse Effect.
s.
Licenses and Permits. The Company and the Subsidiaries possess or have obtained, all licenses, certificates, consents, orders,
approvals, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state,
local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties
or the conduct of their respective businesses as currently conducted, as described in the Registration Statement and the Prospectus (the
“Permits”), except where the failure to possess, obtain or make the same would not, individually or in the aggregate,
have a Material Adverse Effect. Neither the Company nor any Subsidiary has received written notice of any proceeding relating to revocation
or modification of any such Permit or has any reason to believe that such Permit will not be renewed in the ordinary course, except where
the failure to obtain any such renewal would not, individually or in the aggregate, have a Material Adverse Effect.
t.
No Material Defaults. Neither the Company nor any Subsidiary has defaulted on any installment on indebtedness for borrowed money
or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would have a Material Adverse Effect.
The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of its last Annual Report
on Form 20-F, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred stock or (ii) has defaulted
on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which defaults, individually
or in the aggregate, would have a Material Adverse Effect.
u.
Certain Market Activities. Neither the Company, nor any Subsidiary, nor, to the knowledge of the Company, any of their respective
directors, officers or controlling persons has taken, directly or indirectly, any action designed, or that has constituted or would cause
or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Placement Shares.
v.
Broker/Dealer Relationships; FINRA Information. Neither the Company nor any Subsidiary or any related entities (i) is required
to register as a “broker” or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly
or indirectly through one or more intermediaries, controls or is a “person associated with a member” or “associated
person of a member” (within the meaning set forth in the FINRA Manual). All of the information provided to the Agent or to its
counsel, specifically for use in connection with any filing with FINRA pursuant to FINRA Rule 5110 with regard to the transactions contemplated
by this Agreement, by the Company, and, to the Company’s knowledge, by its counsel, its officers and directors and the holders
of any securities (debt or equity) or options to acquire any securities of the Company, in connection with the transactions contemplated
by the Registration Statement or the Prospectus is true, complete, correct and compliant with FINRA’s rules in all material respects.
w.
No Reliance. The Company has not relied upon the Agent or legal counsel for the Agent for any legal, tax or accounting advice
in connection with the offering and sale of the Placement Shares.
x.
Taxes. The Company and the Subsidiaries have filed all federal, state, local and foreign tax returns which have been required
to be filed and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being
contested in good faith, except where the failure to do so would not have a Material Adverse Effect. Except as otherwise disclosed in
or contemplated by the Registration Statement or the Prospectus, no tax deficiency has been determined adversely to the Company or any
Subsidiary which has had, or would have, individually or in the aggregate, a Material Adverse Effect. The Company has no knowledge of
any federal, state or other governmental tax deficiency, penalty or assessment which has been or might be asserted or threatened against
it which would have a Material Adverse Effect.
y.
Title to Real and Personal Property. The Company and the Subsidiaries have good and valid title in fee simple to all items of
real property and good and valid title to all personal property described in the Registration Statement or Prospectus as being owned
by them that are material to the businesses of the Company or such Subsidiary, in each case free and clear of all liens, encumbrances
and claims, except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company
and the Subsidiaries or (ii) would not, individually or in the aggregate, have a Material Adverse Effect. Any real property described
in the Registration Statement or Prospectus as being leased by the Company and the Subsidiaries is held by them under valid, existing
and enforceable leases, except those that (A) do not materially interfere with the use made or proposed to be made of such property by
the Company or the Subsidiaries or (B) would not, individually or in the aggregate, have a Material Adverse Effect.
z.
Intellectual Property. The Company and the Subsidiary own or possess adequate enforceable rights to use all patents, patent applications,
trademarks (both registered and unregistered), trade names, trademark registrations, service marks, service mark registrations, Internet
domain name registrations, copyrights, copyright registrations, licenses and know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures) (collectively, the “Intellectual Property”),
necessary for the conduct of their respective businesses as conducted as of the date hereof, except to the extent that the failure to
own or possess adequate rights to use such Intellectual Property would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. The Company and the Subsidiaries have not received any written notice of any claim of infringement
or conflict which asserted Intellectual Property rights of others, which infringement or conflict, if the subject of an unfavorable decision,
would result in a Material Adverse Effect. There are no pending, or to the Company’s knowledge, threatened judicial proceedings
or interference proceedings challenging the Company’s or any Subsidiary’s rights in or to or the validity of the scope of
any of the Company’s or its Subsidiaries’ patents, patent applications or proprietary information. No other entity or individual
has any right or claim in any of the Company’s or any of its Subsidiary’s patents, patent applications or any patent to be
issued therefrom by virtue of any contract, license or other agreement entered into between such entity or individual and the Company
or any Subsidiary or by any non-contractual obligation, other than by written licenses granted by the Company or any Subsidiary. The
Company has not received any written notice of any claim challenging the rights of the Company or its Subsidiaries in or to any Intellectual
Property owned, licensed or optioned by the Company or any Subsidiary which claim, if the subject of an unfavorable decision, would result
in a Material Adverse Effect.
aa.
Compliance with Applicable Laws. The Company and the Subsidiaries: (A) are and at all times have been in material compliance with
all statutes, rules and regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution,
marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product under development, manufactured
or distributed by the Company or the Subsidiaries (“Applicable Laws”), (b) have not received any Form 483 from the
FDA, notice of adverse finding, warning letter, or other written correspondence or notice from the FDA, the European Medicines Agency
(the “EMA”), or any other federal, state, local or foreign governmental or regulatory authority alleging or asserting
material noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations, permits and supplements
or amendments thereto required by any such Applicable Laws (“Authorizations”), which would, individually or in the
aggregate, result in a Material Adverse Effect; (C) possess all material Authorizations and such Authorizations are valid and in full
force and effect and neither the Company nor the Subsidiaries is in material violation of any term of any such Authorizations; (D) have
not received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action
from the FDA, the EMA, or any other federal, state, local or foreign governmental or regulatory authority or third party alleging that
any Company product, operation or activity is in material violation of any Applicable Laws or Authorizations and has no knowledge that
the FDA, the EMA, or any other federal, state, local or foreign governmental or regulatory authority or third party is considering any
such claim, litigation, arbitration, action, suit, investigation or proceeding against the Company; (E) have not received written notice
that the FDA, EMA, or any other federal, state, local or foreign governmental or regulatory authority has taken, is taking or intends
to take action to limit, suspend, modify or revoke any material Authorizations and has no knowledge that the FDA, EMA, or any other federal,
state, local or foreign governmental or regulatory authority is considering such action; and (F) have filed, obtained, maintained or
submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required
by any Applicable Laws or Authorizations except where the failure to file such reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments would not result in a Material Adverse Effect, and that all such reports, documents,
forms, notices, applications, records, claims, submissions and supplements or amendments were materially complete and correct on the
date filed (or were corrected or supplemented by a subsequent submission).
bb.
Compliance Program. The Company has established and administers a compliance program applicable to the Company, to assist the
Company and the directors, officers and employees of the Company in complying with applicable regulatory guidelines (including, without
limitation, those administered by the FDA, the EMA, and any other foreign, federal, state or local governmental or regulatory authority
performing functions similar to those performed by the FDA or EMA); except where such noncompliance would not reasonably be expected
to have a Material Adverse Effect.
cc.
Clinical Studies. The animal and other preclinical studies and clinical trials conducted by the Company or on behalf of the Company
were, and, if still pending are, to the Company’s knowledge, being conducted in all material respects in compliance with all Applicable
Laws and in accordance with experimental protocols, procedures and controls generally used by qualified experts in the preclinical study
and clinical trials of new drugs and biologics as applied to comparable products to those being developed by the Company; the descriptions
of the results of such preclinical studies and clinical trials contained in the Registration Statement and the Prospectus are accurate
and complete in all material respects, and, except as set forth in the Registration Statement and the Prospectus, the Company has no
knowledge of any other clinical trials or preclinical studies, the results of which reasonably call into question the clinical trial
or preclinical study results described or referred to in the Registration Statement and the Prospectus when viewed in the context in
which such results are described; and the Company has not received any written notices or correspondence from the FDA, the EMA, or any
other domestic or foreign governmental agency requiring the termination, suspension or modification of any preclinical studies or clinical
trials conducted by or on behalf of the Company that are described in the Registration Statement and the Prospectus or the results of
which are referred to in the Registration Statement and the Prospectus.
dd.
Environmental Laws. The Company and the Subsidiaries (i) are in compliance with any and all applicable federal, state, local and
foreign laws, rules, regulations, decisions and orders relating to the protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”); (ii) have received
and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their
respective businesses as described in the Registration Statement and the Prospectus; and (iii) have not received notice of any actual
or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants
or contaminants, except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive
required permits, licenses, other approvals or liability as would not, individually or in the aggregate, have a Material Adverse Effect.
ee.
Disclosure Controls. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company is not aware of any material weaknesses in its internal control over financial reporting (other than as set forth in the
Registration Statement or the Prospectus). Since the date of the latest audited financial statements of the Company included in the Prospectus,
there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control over financial reporting (other than as set forth in the Registration
Statement or the Prospectus). The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15
and 15d-15) that comply with the requirements of the Exchange Act. The Company’s certifying officers have evaluated the effectiveness
of the Company’s controls and procedures as of a date within 90 days prior to the filing date of the Form 20-F for the fiscal year
most recently ended (such date, the “Evaluation Date”). The Company presented in its Form 20-F for the fiscal year
most recently ended the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based
on their evaluations as of the most recent Evaluation Date, and the “disclosure controls and procedures” are effective.
ff.
Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the
Company’s directors or officers, in their capacities as such, to comply in all material respects with any applicable provisions
of the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder. Each of the principal executive officer and the principal
financial officer of the Company (or each former principal executive officer of the Company and each former principal financial officer
of the Company as applicable) has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to
all reports, schedules, forms, statements and other documents required to be filed by it or furnished by it to the Commission during
the past 12 months. For purposes of the preceding sentence, “principal executive officer” and “principal financial
officer” shall have the meanings given to such terms in the Exchange Act Rules 13a-15 and 15d-15.
gg.
Finder’s Fees. Neither the Company nor any Subsidiary has incurred any liability for any finder’s fees, brokerage
commissions or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to
the Agent pursuant to this Agreement.
hh.
Labor Disputes. No labor disturbance by or dispute with employees of the Company or any Subsidiary exists or, to the knowledge
of the Company, is threatened which would result in a Material Adverse Effect.
ii.
Investment Company Act. Neither the Company nor any Subsidiary is or, after giving effect to the offering and sale of the Placement
Shares, will be required to register as an “investment company” or an entity “controlled” by an “investment
company,” as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
jj.
Operations. The operations of the Company and the Subsidiaries are and have been conducted at all times in compliance with applicable
financial record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions to which the Company or the Subsidiaries are subject, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency having jurisdiction
over the Company (collectively, the “Money Laundering Laws”), except where the failure to be in such compliance would
not result in a Material Adverse Effect; and no action, suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company, threatened.
kk.
Off-Balance Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company,
and/or, to the knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited to, any structured
finance, special purpose or limited purpose entity (each, an “Off Balance Sheet Transaction”) that would affect materially
the Company’s liquidity or the availability of or requirements for its capital resources, including those Off Balance Sheet Transactions
described in the Commission’s Statement about Management’s Discussion and Analysis of Financial Conditions and Results of
Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described in the Registration Statement or the Prospectus which have
not been described as required.
ll.
Underwriter Agreements. Other than with respect to this Agreement, the Company is not a party to any agreement with an agent or
underwriter for any other “at the market” or continuous equity transaction.
mm.
ERISA. To the knowledge of the Company, (i) each material employee benefit plan, within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”) that is maintained, administered or contributed to by
the Company or any of its affiliates for employees or former employees of the Company and the Subsidiaries has been maintained in material
compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to
ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); (ii) no prohibited transaction, within the meaning
of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result in a material liability to the Company with respect
to any such plan excluding transactions effected pursuant to a statutory or administrative exemption; and (iii) for each such plan that
is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as
defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value of the assets of each such plan
(excluding for these purposes accrued but unpaid contributions) equals or exceeds the present value of all benefits accrued under such
plan determined using reasonable actuarial assumptions, other than, in the case of (i), (ii) and (iii) above, as would not have a Material
Adverse Effect.
nn.
Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) (a “Forward-Looking Statement”) contained in the Registration Statement and the Prospectus
has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
oo.
Margin Rules. Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the
Company as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of
the Federal Reserve System.
pp.
Insurance. The Company and the Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the
Company and the Subsidiaries reasonably believe are adequate for the conduct of their business.
qq.
No Improper Practices. (i) Neither the Company nor, to the Company’s knowledge, the Subsidiaries, nor to the Company’s
knowledge, any of their respective executive officers has, in the past five years, made any unlawful contributions to any candidate for
any political office (or failed fully to disclose any contribution in violation of law) or made any contribution or other payment to
any official of, or candidate for, any federal, state, municipal, or foreign office or other person charged with similar public or quasi-public
duty in violation of any law or of the character required to be disclosed in the Prospectus; (ii) no relationship, direct or indirect,
exists between or among the Company or, to the Company’s knowledge, the Subsidiaries or any affiliate of any of them, on the one
hand, and the directors, officers and stockholders of the Company or, to the Company’s knowledge, the Subsidiaries, on the other
hand, that is required by the Securities Act to be described in the Registration Statement and the Prospectus that is not so described;
(iii) no relationship, direct or indirect, exists between or among the Company or the Subsidiaries or any affiliate of them, on the one
hand, and the directors, officers, stockholders or directors of the Company or, to the Company’s knowledge, the Subsidiaries, on
the other hand, that is required by the rules of FINRA to be described in the Registration Statement and the Prospectus that is not so
described; (iv) there are no material outstanding loans or advances or material guarantees of indebtedness by the Company or, to the
Company’s knowledge, the Subsidiaries to or for the benefit of any of their respective officers or directors or any of the members
of the families of any of them; and (v) the Company has not offered, or caused any placement agent to offer, Ordinary Shares to any person
with the intent to influence unlawfully (A) a customer or supplier of the Company or the Subsidiaries to alter the customer’s or
supplier’s level or type of business with the Company or the Subsidiaries or (B) a trade journalist or publication to write or
publish favorable information about the Company or the Subsidiaries or any of their respective products or services, and, (vi) neither
the Company nor the Subsidiaries nor, to the Company’s knowledge, any employee or agent of the Company or the Subsidiaries has
made any payment of funds of the Company or the Subsidiaries or received or retained any funds in violation of any law, rule or regulation
(including, without limitation, the Foreign Corrupt Practices Act of 1977), which payment, receipt or retention of funds is of a character
required to be disclosed in the Registration Statement or the Prospectus.
rr.
Status Under the Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405 under the Securities
Act at the times specified in Rules 164 and 433 under the Securities Act in connection with the offering of the Placement Shares.
ss.
No Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and
as of each Applicable Time (as defined in Section 27 below), did not, does not and will not, through the completion of the Placement
or Placements for which such Issuer Free Writing Prospectus is issued, include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement or the Prospectus, including any incorporated document deemed to be a part
thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer
Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Agent specifically for
use therein.
tt.
No Conflicts. Neither the execution of this Agreement, nor the issuance, offering or sale of the Placement Shares, nor the consummation
of any of the transactions contemplated herein, nor the compliance by the Company with the terms and provisions hereof will conflict
with, or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute a default under, or has
resulted in or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company
pursuant to the terms of any contract or other agreement to which the Company may be bound or to which any of the property or assets
of the Company is subject, except (i) such conflicts, breaches or defaults as may have been waived and (ii) such conflicts, breaches
and defaults that would not have a Material Adverse Effect; nor will such action result (x) in any violation of the provisions of the
organizational or governing documents of the Company, or (y) in any material violation of the provisions of any statute or any order,
rule or regulation applicable to the Company or of any court or of any federal, state or other regulatory authority or other government
body having jurisdiction over the Company, except where such violation would not have a Material Adverse Effect.
uu.
OFAC.
(i)
Neither the Company nor any Subsidiary (collectively, the “Entity”) nor any director or officer of the Entity nor,
to the Company’s knowledge, any employee, agent, affiliate or representative of the Entity, is a government, individual, or entity
(in this paragraph (uu), “Person”) that is, or is owned or controlled by a Person that is:
(a)
the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council, the European Union, His Majesty’s Treasury, the States of Guernsey, the Guernsey Financial
Services Commission or other relevant sanctions authority (collectively, “Sanctions”), nor
(b)
located, organized or resident in a country or territory that is the subject of Sanctions.
(ii)
The Entity will not, directly or indirectly, knowingly use the proceeds of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other Person:
(a)
to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding
or facilitation, is the subject of Sanctions; or
(b)
in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether
as underwriter, advisor, investor or otherwise).
(iii)
The Entity represents and covenants that, except as detailed in the Registration Statement and the Prospectus, for the past 5 years,
it has not knowingly engaged in and is not now knowingly engaged in any dealing or transactions with any Person, or in any country or
territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
vv.
Stock Transfer Taxes. On each Settlement Date, all material stock transfer or other taxes (other than income taxes) which are
required to be paid in connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been,
fully paid or provided for by the Company and all laws imposing such taxes will be or will have been fully complied with by the Company
in all material respects.
ww.
IT Systems. (i)(x) To the knowledge of Company, there has been no security breach or other compromise of any Company’s information
technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers,
vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and
Data”) and (y) the Company has not been notified of, and have no knowledge of any event or condition that would reasonably
be expected to result in, any security breach or other compromise to their IT Systems and Data; (ii) the Company is presently in material
compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental
or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and
to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, in
the case of this clause (ii), individually or in the aggregate, have a Material Adverse Effect; and (iii) the Company has implemented
backup and disaster recovery technology consistent with industry standards and practices.
xx.
No Immunity. Neither the Company nor any of its Subsidiaries or their properties or assets has immunity under Guernsey (or any
political subdivision thereof), U.S. federal or New York state law from any legal action, suit or proceeding, from the giving of any
relief in any such legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any Guernsey (or any political
subdivision thereof), U.S. federal or New York state court, from service of process, attachment upon or prior to judgment, or attachment
in aid of execution of judgment, or from execution of a judgment, or other legal process or proceeding for the giving of any relief or
for the enforcement of a judgment, in any such court with respect to their respective obligations, liabilities or any other matter under
or arising out of or in connection herewith; and, to the extent that the Company or any of its Subsidiaries or any of its properties,
assets or revenues may have or may hereafter become entitled to any such right of immunity in any such court in which proceedings arising
out of, or relating to the transactions contemplated by this Agreement, may at any time be commenced, the Company has, pursuant to Section
17 of this Agreement, waived, and it will waive, or will cause its Subsidiaries to waive, such right to the extent permitted by law.
yy.
Enforcement of Foreign Judgments. Any final judgment for a fixed or determined sum of money rendered by any U.S. federal or New
York state court located in the State of New York having jurisdiction under its own laws in respect of any suit, action or proceeding
against the Company based upon this Agreement would be enforceable against the Company by the courts of Guernsey, or any political subdivision
thereof, without reconsideration or reexamination of the merits.
zz.
Valid Choice of Law. The choice of the laws of the State of New York as the governing law of this Agreement is a valid choice
of law under the laws of Guernsey and should be honored by courts in Guernsey. The Company has the power to submit, and pursuant to this
Agreement, has legally, validly, effectively and irrevocably submitted, to the personal jurisdiction of each the State of New York and
United States Federal court sitting in New York County (each, a “New York Court”) and has validly and irrevocably
waived any objection to the laying of venue of any suit, action or proceeding brought in any such court; and the Company has the power
to designate, appoint and empower, and pursuant to this Agreement, has legally, validly, effectively and irrevocably designated, appointed
and empowered, an authorized agent for service of process in any action arising out of or relating to this Agreement, or the offering
of the Placement Shares in any New York Court, and service of process effected on such authorized agent will be effective to confer valid
personal jurisdiction over the Company as provided in this Agreement.
aaa.
Indemnification and Contribution. The indemnification and contribution provisions set forth in Section 11 hereof do not
contravene Guernsey law.
bbb.
Legality. The legality, validity or enforceability of any of the Registration Statement, the Prospectus, this Agreement or the
Placement Shares in any jurisdiction in which the Company is organized or does business is not dependent upon such document being submitted
into, filed or recorded with any court or other authority in any such jurisdiction on or before the date hereof or that any tax, imposition
or charge be paid in any such jurisdiction on or in respect of any such document.
ccc.
Legal Action. Subject to the limitations described in Section 20 hereof, the Agents are entitled to sue as plaintiff in
the court of the jurisdiction of formation and domicile of the Company for the enforcement of its rights under this Agreement and the
Placement Shares and such access to such courts will not be subject to any conditions which are not applicable to residents of such jurisdiction
or a company incorporated in such jurisdiction except that plaintiffs not residing in Guernsey may be required to guarantee payment of
a possible order for payment of costs or damages at the request of the defendant.
ddd.
Foreign Issuer. The Company is a “foreign private issuer” as defined in Rule 405 under the Securities Act.
eee.
Passive Foreign Investment Company. The Company does not believe that it was classified as a “passive foreign investment
company” (“PFIC”) as defined in Section 1297 of the Code based on the information available to the Company at
the time of the filing of the Company’s most recent Form 20-F, for its most recently completed taxable year and, based on certain
estimates of the Company’s gross income and the value of its assets, the intended use of proceeds from the offering and sale of
the Securities and the nature of the Company’s business, the Company does not expect to be classified as a PFIC for the current
taxable year.
Any
certificate signed by an officer of the Company and delivered to the Agent or to counsel for the Agent pursuant to or in connection with
this Agreement shall be deemed to be a representation and warranty by the Company, as applicable, to the Agent as to the matters set
forth therein.
7.
Covenants of the Company. The Company covenants and agrees with the Agent that:
a.
Registration Statement Amendments. After the date of this Agreement and during any period in which a prospectus relating to any
Placement Shares is required to be delivered by the Agent under the Securities Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act) (the “Prospectus Delivery Period”) (i) the Company
will notify the Agent promptly of the time when any subsequent amendment to the Registration Statement, other than documents incorporated
by reference or amendments not related to any Placement, has been filed with the Commission and/or has become effective or any subsequent
supplement to the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Registration
Statement or Prospectus related to the Placement or for additional information related to the Placement, (ii) the Company will prepare
and file with the Commission, promptly upon the Agent’s request, any amendments or supplements to the Registration Statement or
Prospectus that, upon the advice of the Company’s legal counsel, may be necessary or advisable in connection with the distribution
of the Placement Shares by the Agent (provided, however, that the failure of the Agent to make such request shall not relieve
the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations and warranties
made by the Company in this Agreement and provided, further, that the only remedy the Agent shall have with respect to the failure to
make such filing shall be to cease making sales under this Agreement until such amendment or supplement is filed); (iii) the Company
will not file any amendment or supplement to the Registration Statement or Prospectus relating to the Placement Shares or a security
convertible into the Placement Shares (other than an Incorporated Document) unless a copy thereof has been submitted to the Agent within
a reasonable period of time before the filing and the Agent has not reasonably objected thereto (provided, however, that (A) the
failure of the Agent to make such objection shall not relieve the Company of any obligation or liability hereunder, or affect the Agent’s
right to rely on the representations and warranties made by the Company in this Agreement and (B) the Company has no obligation to provide
the Agent any advance copy of such filing or to provide the Agent an opportunity to object to such filing if the filing does not name
the Agent or does not relate to the transaction herein provided; and provided, further, that the only remedy the Agent shall have with
respect to the failure by the Company to obtain such consent shall be to cease making sales under this Agreement) and the Company will
furnish to the Agent at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference
into the Registration Statement or Prospectus, except for those documents available via EDGAR; and (iv) the Company will cause each amendment
or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the
Securities Act or, in the case of any document to be incorporated therein by reference, to be filed with the Commission as required pursuant
to the Exchange Act, within the time period prescribed (the determination to file or not file any amendment or supplement with the Commission
under this Section 7(a), based on the Company’s reasonable opinion or reasonable objections, shall be made exclusively by
the Company).
b.
Notice of Commission Stop Orders. The Company will advise the Agent, promptly after it receives notice or obtains knowledge thereof,
of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceeding for any such purpose; and it will use its commercially reasonable efforts to prevent the issuance of any stop order
or to obtain its withdrawal if such a stop order should be issued. The Company will advise the Agent promptly after it receives any request
by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any Issuer Free
Writing Prospectus or for additional information related to the offering of the Placement Shares or for additional information related
to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.
c.
Delivery of Prospectus; Subsequent Changes. During the Prospectus Delivery Period, the Company will comply with all requirements
imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports
and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a),
13(c), 14, 15(d) or any other provision of or under the Exchange Act. If the Company has omitted any information from the Registration
Statement pursuant to Rule 430A under the Securities Act, it will use its commercially reasonable efforts to comply with the provisions
of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Agent promptly of all such filings.
If during the Prospectus Delivery Period any event occurs as a result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such Prospectus Delivery Period it is necessary to amend or supplement the
Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify the Agent to suspend the offering
of Placement Shares during such period and the Company will promptly amend or supplement the Registration Statement or Prospectus (at
the expense of the Company) so as to correct such statement or omission or effect such compliance; provided, however, that the
Company may delay the filing of any amendment or supplement, if in the judgment of the Company, it is in the best interest of the Company.
d.
Listing of Placement Shares. During the Prospectus Delivery Period, the Company will use its commercially reasonable efforts to
cause the Placement Shares to be listed on the Exchange and to qualify the Placement Shares for sale under the securities laws of such
jurisdictions in the United States as the Agent reasonably designates and to continue such qualifications in effect so long as required
for the distribution of the Placement Shares; provided, however, that the Company shall not be required in connection therewith
to qualify as a foreign corporation or dealer in securities, file a general consent to service of process, or subject itself to taxation
in any jurisdiction if it is not otherwise so subject.
e.
Delivery of Registration Statement and Prospectus. The Company will furnish to the Agent and its counsel (at the reasonable expense
of the Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and
all amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission during the Prospectus Delivery
Period (including all documents filed with the Commission during such period that are deemed to be incorporated by reference therein),
in each case as soon as reasonably practicable and in such quantities as the Agent may from time to time reasonably request and, at the
Agent’s request, will also furnish copies of the Prospectus to each exchange or market on which sales of the Placement Shares may
be made; provided, however, that the Company shall not be required to furnish any document (other than the Prospectus) to the
Agent to the extent such document is available on EDGAR.
f.
Earnings Statement. The Company will make generally available to its security holders as soon as practicable, but in any event
not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period
that satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act.
g.
Use of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
h.
Notice of Other Sales. Without the prior written consent of the Agent, the Company will not, directly or indirectly, offer to
sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Ordinary Shares (other than the Placement Shares offered
pursuant to this Agreement) or securities convertible into or exchangeable for Ordinary Shares, warrants or any rights to purchase or
acquire, Ordinary Shares during the period beginning on the date on which any Placement Notice is delivered to the Agent hereunder and
ending on the third (3rd) Trading Day immediately following the final Settlement Date with respect to Placement Shares sold pursuant
to such Placement Notice (or, if the Placement Notice has been terminated or suspended prior to the sale of all Placement Shares covered
by a Placement Notice, the date of such suspension or termination); and will not directly or indirectly in any other “at the market”
or continuous equity transaction offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Ordinary
Shares (other than the Placement Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Ordinary
Shares, warrants or any rights to purchase or acquire, Ordinary Shares prior to the termination of this Agreement; provided, however,
that such restrictions will not apply in connection with the Company’s issuance or sale of (i) Ordinary Shares, options to purchase
Ordinary Shares or Ordinary Shares issuable upon the exercise of options, pursuant to any stock option, or benefits plan, stock ownership
plan or dividend reinvestment plan (but not Ordinary Shares subject to a waiver to exceed plan limits in its dividend reinvestment plan)
of the Company whether now in effect or hereafter implemented; (ii) Ordinary Shares issuable upon conversion of securities or the exercise
of warrants, options or other rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR or otherwise
in writing to the Agent, (iii) Ordinary Shares, or securities convertible into or exercisable for Ordinary Shares, offered and sold in
a privately negotiated transaction to vendors, customers, strategic partners or potential strategic partners or other investors conducted
in a manner so as not to be integrated with the offering of Ordinary Shares hereby and (iv) Ordinary Shares in connection with any acquisition,
strategic investment or other similar transaction (including any joint venture, strategic alliance or partnership).
i.
Change of Circumstances. The Company will, at any time during the pendency of a Placement Notice advise the Agent promptly after
it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect
any opinion, certificate, letter or other document required to be provided to the Agent pursuant to this Agreement.
j.
Due Diligence Cooperation. During the term of this Agreement, the Company will cooperate with any reasonable due diligence review
conducted by the Agent or its representatives in connection with the transactions contemplated hereby, including, without limitation,
providing information and making available documents and senior corporate officers, during regular business hours and at the Company’s
principal offices, as the Agent may reasonably request.
k.
Required Filings Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities Act shall
require, the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the
Securities Act (each and every date a filing under Rule 424(b) is made, a “Filing Date”), which prospectus supplement
will set forth, within the relevant period, the amount of Placement Shares sold through the Agent, the Net Proceeds to the Company and
the compensation payable by the Company to the Agent with respect to such Placement Shares, and (ii) deliver such number of copies of
each such prospectus supplement to each exchange or market on which such sales were effected as may be required by the rules or regulations
of such exchange or market.
l.
Representation Dates; Certificate. Each time during the term of this Agreement that the Company:
(i)
amends or supplements (other than a prospectus supplement relating solely to an offering of securities other than the Placement Shares)
the Registration Statement or the Prospectus relating to the Placement Shares by means of a post-effective amendment, sticker, or supplement
but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus relating to the Placement
Shares;
(ii)
files an annual report on Form 20-F under the Exchange Act (including any Form 10-K/A containing amended audited financial information
or a material amendment to the previously filed Form 20-F);
(iii)
furnishes its unaudited interim financial statements on Form 6-K under the Exchange Act; or
(iv)
files a current report on Form 6-K containing amended financial information under the Exchange Act;
(Each
date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation
Date.”) the Company shall furnish the Agent (but in the case of clause (iv) above only if the Agent reasonably determines
that the information contained in such Form 6-K is material) with a certificate, in the form attached hereto as Exhibit 7(1).
The requirement to provide a certificate under this Section 7(1) shall be waived for any Representation Date occurring at a
time at which no Placement Notice is pending, which waiver shall continue until the earlier to occur of the date the Company
delivers a Placement Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and the next
occurring Representation Date on which the Company files its annual report on Form 20-F. Notwithstanding the foregoing, (i) upon the
delivery of the first Placement Notice hereunder and (ii) if the Company subsequently decides to sell Placement Shares following a
Representation Date when the Company relied on such waiver and did not provide the Agent with a certificate under this Section
7(1), then before the Agent sells any Placement Shares, the Company shall provide the Agent with a certificate, in the form
attached hereto as Exhibit 7(1), dated the date of the Placement Notice.
m.
Legal Opinion. On or prior to the date of the first Placement Notice given hereunder the Company shall cause to be furnished to
the Agent a written opinion and a negative assurance letter of Sheppard Mullin Richter & Hampton LLP (“Company U.S. Counsel”),
counsel to the Company as to certain matters of U.S. law, a written opinion of Carey Olsen (Guernsey) LLP (“Company Guernsey
Counsel”), counsel for the Company as to certain matters of Guernsey law, and a written opinion of Cooley LLP (“Company
IP Counsel”), counsel to the Company as to certain matters of intellectual property law, or other counsel reasonably satisfactory
to the Agent, each in form and substance reasonably satisfactory to the Agent. Thereafter, within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(l) for which no
waiver is applicable, the Company shall cause to be furnished to the Agent a negative assurance letter of Company Counsel in form and
substance reasonably satisfactory to the Agent; provided that, in lieu of such negative assurance for subsequent periodic filings under
the Exchange Act, counsel may furnish the Agent with a letter (a “Reliance Letter”) to the effect that the Agent may
rely on the negative assurance letter previously delivered under this Section 7(m) to the same extent as if it were dated the date of
such letter (except that statements in such prior letter shall be deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented as of the date of the Reliance Letter).
n.
Comfort Letter. On or prior to the date of the first Placement Notice given hereunder and within five (5) Trading Days after each
subsequent Representation Date, other than pursuant to Section 7(l)(iii), the Company shall cause its independent accountants to furnish
the Agent letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet the requirements
set forth in this Section 7(n). The Comfort Letter from the Company’s independent accountants shall be in a form and substance
reasonably satisfactory to the Agent, (i) confirming that they are an independent public accounting firm within the meaning of the Securities
Act and the Public Company Accounting Oversight Board (the “PCAOB”), (ii) stating, as of such date, the conclusions
and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort
letters” to underwriters in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”)
and (iii) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it
been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented
to the date of such letter.
o.
Market Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or would constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of
Ordinary Shares or (ii) sell, bid for, or purchase Ordinary Shares in violation of Regulation M, or pay anyone any compensation for soliciting
purchases of the Placement Shares other than the Agent.
p.
Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor the
Subsidiaries will be or become, at any time prior to the termination of this Agreement, an “investment company,” as such
term is defined in the Investment Company Act.
q.
No Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Agent in its capacity
as agent hereunder pursuant to Section 23, neither of the Agent nor the Company (including its agents and representatives, other
than the Agent in its capacity as such) will make, use, prepare, authorize, approve or refer to any written communication (as defined
in Rule 405), required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement
Shares hereunder.
r.
Sarbanes-Oxley Act. The Company will maintain and keep accurate books and records reflecting its assets and maintain internal
accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with IFRS and including those policies and procedures that (i) pertain to
the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of
the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit the preparation of the Company’s
consolidated financial statements in accordance with IFRS, (iii) that receipts and expenditures of the Company are being made only in
accordance with management’s and the Company’s directors’ authorization, and (iv) provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material
effect on its financial statements. The Company will maintain disclosure controls and procedures that comply with the requirements of
the Exchange Act.
8.
Representations and Covenants of the Agent. The Agent represents and warrants that it is duly registered as a broker-dealer under
FINRA, the Exchange Act and the applicable statutes and regulations of each state in which the Placement Shares will be offered and sold,
except such states in which the Agent is exempt from registration or such registration is not otherwise required. The Agent shall continue,
for the term of this Agreement, to be duly registered as a broker-dealer under FINRA, the Exchange Act and the applicable statutes and
regulations of each state in which the Placement Shares will be offered and sold, except such states in which it is exempt from registration
or such registration is not otherwise required, during the term of this Agreement. The Agent shall comply with all applicable law and
regulations in connection with the transactions contemplated by this Agreement, including the issuance and sale through the Agent of
the Placement Shares.
9.
Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including
(i) the preparation, filing, including any fees required by the Commission, and printing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment and supplement thereto and each Free Writing Prospectus, in such number
as the Agent shall deem reasonably necessary, (ii) the printing and delivery to the Agent of this Agreement and such other documents
as may be required in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation,
issuance and delivery of the certificates, if any, for the Placement Shares to the Agent, including any stock or other transfer taxes
and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to
the Agent, (iv) the fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the reasonable and documented
out-of-pocket fees and disbursements of counsel to the Agent (x) not to exceed $75,000 in connection with the filing of this Agreement
and (y) not to exceed $5,000 per calendar quarter thereafter in connection with updates at the time of Representation Dates; (vi) the
fees and expenses of the transfer agent and registrar for the Ordinary Shares, (vii) the filing fees incident to any review by FINRA
of the terms of the sale of the Placement Shares, and (viii) the fees and expenses incurred in connection with the listing of the Placement
Shares on the Exchange.
10.
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder with respect to a Placement will be subject
to the continuing accuracy and completeness of the representations and warranties made by the Company herein (other than those representations
and warranties made as of a specified date or time), to the due performance in all material respects by the Company of its obligations
hereunder, to the completion by the Agent of a due diligence review satisfactory to it in its reasonable judgment, and to the continuing
reasonable satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
a.
Registration Statement Effective. The Registration Statement shall remain effective and shall be available for the sale of all
Placement Shares contemplated to be issued by any Placement Notice.
b.
No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request
for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness
of the Registration Statement, the response to which would require any post-effective amendments or supplements to the Registration Statement
or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending
the effectiveness of the Registration Statement or receipt by the Company of notification of the initiation of any proceedings for that
purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification
of any of the Placement Shares for sale in any jurisdiction or receipt by the Company of notification of the initiation of, or a threat
to initiate, any proceeding for such purpose; or (iv) the occurrence of any event that makes any material statement made in the Registration
Statement or the Prospectus or any material Incorporated Document untrue in any material respect or that requires the making of any changes
in the Registration Statement, the Prospectus or any material Incorporated Document so that, in the case of the Registration Statement,
it will not contain any materially untrue statement of a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and, that in the case of the Prospectus or any material Incorporated Document,
it will not contain any materially untrue statement of a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
c.
No Misstatement or Material Omission. The Agent shall not have advised the Company that the Registration Statement or Prospectus,
or any amendment or supplement thereto, contains an untrue statement of fact that in the Agent’s reasonable opinion is material,
or omits to state a fact that in the Agent’s reasonable opinion is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
d.
Material Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission,
there shall not have been any Material Adverse Effect, or any development that would cause a Material Adverse Effect, or a downgrading
in or withdrawal of the rating assigned to any of the Company’s securities (other than asset backed securities) by any “nationally
recognized statistical rating organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act (a “Rating Organization”), or a public announcement by any Rating Organization that it has under surveillance
or review its rating of any of the Company’s securities (other than asset backed securities), the effect of which, in the case
of any such action by a Rating Organization described above, in the reasonable judgment of the Agent (without relieving the Company of
any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with the offering
of the Placement Shares on the terms and in the manner contemplated in the Prospectus.
e.
Company Counsel Legal Opinions. The Agent shall have received the opinion and negative assurance letter of Company U.S. Counsel,
the opinion of Company Guernsey Counsel and the opinion of Company IP Counsel required to be delivered pursuant to Section 7(m)
on or before the date on which such delivery of such opinion and negative assurance letter are required pursuant to Section 7(m).
f.
Agent Counsel Legal Opinion. Agent shall have received from Duane Morris LLP, counsel for the Agent, such opinion or opinions,
on or before the date on which the delivery of the Company Counsel legal opinion is required pursuant to Section 7(m), with respect
to such matters as the Agent may reasonably require, and the Company shall have furnished to such counsel such documents as they request
for enabling them to pass upon such matters.
g.
Comfort Letter. The Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(n) on or before
the date on which such delivery of such letter is required pursuant to Section 7(n).
h.
Representation Certificate. The Agent shall have received the certificate required to be delivered pursuant to Section 7(1)
on or before the date on which delivery of such certificate is required pursuant to Section 7(1).
i.
Secretary’s Certificate. On or prior to the first Representation Date, the Agent shall have received a certificate, signed
on behalf of the Company by its corporate Secretary, in form and substance satisfactory to the Agent and its counsel.
j.
No Suspension. Trading in the Ordinary Shares shall not have been suspended on the Exchange and the Ordinary Shares shall not
have been delisted from the Exchange.
k.
Other Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(1), the Company
shall have furnished to the Agent such appropriate further information, certificates and documents as the Agent may reasonably request
and which are usually and customarily furnished by an issuer of securities in connection with a securities offering of the type contemplated
hereby. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof.
l.
Securities Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed
prior to the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing
by Rule 424.
m.
Approval for Listing. The Placement Shares shall either have been approved for listing on the Exchange, subject only to notice
of issuance, or the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to, the
issuance of any Placement Notice.
n.
No Termination Event. There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant
to Section 13(a).
11.
Indemnification and Contribution.
(a)
Company Indemnification. The Company agrees to indemnify and hold harmless the Agent, its partners, members, directors, officers,
employees and agents and each person, if any, who controls the Agent within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act as follows:
(i)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto),
or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein
not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact included in any related Issuer
Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading;
(ii)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 11(d) below) any such settlement is effected with the written consent of the Company, which consent shall
not unreasonably be delayed or withheld; and
(iii)
against any and all expense whatsoever, as incurred (including the reasonable and documented out-of-pocket fees and disbursements of
counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above,
provided,
however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity with written
information furnished to the Company by the Agent expressly for use in the Registration Statement (or any amendment thereto), or in any
related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(b)
Indemnification by the Agent. The Agent agrees to indemnify and hold harmless the Company and its directors and officers, and
each person, if any, who (i) controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act or (ii) is controlled by or is under common control with the Company against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 11(a), as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto) or in any related Issuer Free
Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information relating
to the Agent and furnished to the Company in writing by the Agent expressly for use therein.
(c)
Procedure. Any party that proposes to assert the right to be indemnified under this Section 11 will, promptly after receipt
of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or
parties under this Section 11, notify each such indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that
it might have to any indemnified party otherwise than under this Section 11 and (ii) any liability that it may have to any indemnified
party under the foregoing provisions of this Section 11 unless, and only to the extent that, such omission results in the forfeiture
of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies
the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects
by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory
to the indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense,
the indemnifying party will not be liable to the indemnified party for any legal or other expenses except as provided below and except
for the reasonable costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will
be at the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing
by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict of interest exists (based on advice of counsel to the indemnified party) between the indemnified party
and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf
of the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action within
a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable and documented out-of-pocket
fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable and documented out-of-pocket fees, disbursements and other charges of more than one separate firm admitted to practice
in such jurisdiction at any one time for all such indemnified party or parties. All such reasonable and documented out-of-pocket fees,
disbursements and other charges will be reimbursed by the indemnifying party promptly after the indemnifying party receives a written
invoice relating to fees, disbursements and other charges in reasonable detail. An indemnifying party will not, in any event, be liable
for any settlement of any action or claim effected without its written consent. No indemnifying party shall, without the prior written
consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action
or proceeding relating to the matters contemplated by this Section 11 (whether or not any indemnified party is a party thereto),
unless such settlement, compromise or consent (1) includes an unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (2) does not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of any indemnified party.
(d)
Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification provided for
in the foregoing paragraphs of this Section 11 is applicable in accordance with its terms but for any reason is held to be unavailable
from the Company or the Agent, the Company and the Agent will contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons other
than the Agent, such as persons who control the Company within the meaning of the Securities Act or the Exchange Act, officers of the
Company who signed the Registration Statement and directors of the Company, who also may be liable for contribution) to which the Company
and the Agent may be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the
one hand and the Agent on the other hand. The relative benefits received by the Company on the one hand and the Agent on the other hand
shall be deemed to be in the same proportion as the total Net Proceeds from the sale of the Placement Shares (before deducting expenses)
received by the Company bear to the total compensation received by the Agent (before deducting expenses) from the sale of Placement Shares
on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the
allocation of contribution shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in
the foregoing sentence but also the relative fault of the Company, on the one hand, and the Agent, on the other hand, with respect to
the statements or omission that resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as
any other relevant equitable considerations with respect to such offering. Such relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or the Agent, the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company and the Agent agree that it would not be just and equitable
if contributions pursuant to this Section 11(d) were to be determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as
a result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this Section 11(d)
shall be deemed to include, for the purpose of this Section 11(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim to the extent consistent with Section 11(c)
hereof. Notwithstanding the foregoing provisions of this Section 11(d), the Agent shall not be required to contribute any
amount in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 11(d), any person who controls a party to this Agreement within the meaning of
the Securities Act or the Exchange Act, and any officers, directors, partners, employees or agents of the Agent, will have the same rights
to contribution as that party, and each officer who signed the Registration Statement and director of the Company will have the same
rights to contribution as the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after
receipt of notice of commencement of any action against such party in respect of which a claim for contribution may be made under this
Section 11(d), will notify any such party or parties from whom contribution may be sought, but the omission to so notify will
not relieve that party or parties from whom contribution may be sought from any other obligation it or they may have under this Section
11(d) except to the extent that the failure to so notify such other party materially prejudiced the substantive rights or defenses
of the party from whom contribution is sought. Except for a settlement entered into pursuant to the last sentence of Section 11(c)
hereof, no party will be liable for contribution with respect to any action or claim settled without its written consent if such
consent is required pursuant to Section 11(c) hereof.
12.
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 11 of this
Agreement and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as
of their respective dates, regardless of (i) any investigation made by or on behalf of the Agent, any controlling persons, or the Company
(or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement Shares and payment
therefor or (iii) any termination of this Agreement.
13.
Termination.
a.
The Agent may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there has been, since the
time of execution of this Agreement or since the date as of which information is given in the Prospectus, any Material Adverse Effect,
or any development that would have a Material Adverse Effect that, in the sole judgment of the Agent, is material and adverse and makes
it impractical or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (2) if there
has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak
of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment
of the Agent, impracticable or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares,
(3) if trading in the Ordinary Shares has been suspended or limited by the Commission or the Exchange, or if trading generally on the
Exchange has been suspended or limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension of trading
of any securities of the Company on any exchange or in the over-the-counter market shall have occurred and be continuing, (5) if a major
disruption of securities settlements or clearance services in the United States shall have occurred and be continuing, or (6) if a banking
moratorium has been declared by either U.S. Federal or New York authorities. Any such termination shall be without liability of any party
to any other party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution),
Section 12 (Representations and Agreements to Survive Delivery), Section 19 (Governing Law and Time; Waiver of Jury Trial),
Section 20 (Consent to Jurisdiction) and Section 21 (Appointment of Agent for Service) hereof shall remain in full force
and effect notwithstanding such termination. If the Agent elects to terminate this Agreement as provided in this Section 13(a), the Agent
shall provide the required notice as specified in Section 14 (Notices).
b.
The Company shall have the right, by giving five (5) days’ notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section
12 (Representations and Agreements to Survive Delivery), Section 19 (Governing Law and Time; Waiver of Jury Trial) and Section
20 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.
c.
The Agent shall have the right, by giving five (5) days’ notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section
12 (Representations and Agreements to Survive Delivery), Section 19 (Governing Law and Time; Waiver of Jury Trial) and Section
20 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.
d.
Unless earlier terminated pursuant to this Section 13, this Agreement shall automatically terminate upon the issuance and sale
of all of the Placement Shares through the Agent on the terms and subject to the conditions set forth herein except that the provisions
of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations and
Agreements to Survive Delivery), Section 19 (Governing Law and Time; Waiver of Jury Trial) and Section 20 (Consent to Jurisdiction)
hereof shall remain in full force and effect notwithstanding such termination.
e.
This Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), (b), (c), or
(d) above or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement
shall in all cases be deemed to provide that Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution),
Section 12 (Representations and Agreements to Survive Delivery), Section 19 (Governing Law and Time; Waiver of Jury Trial)
and Section 20 (Consent to Jurisdiction) shall remain in full force and effect. Upon termination of this Agreement, the Company
shall not have any liability to the Agent for any discount, commission or other compensation with respect to any Placement Shares not
otherwise sold by the Agent under this Agreement.
f.
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however, that
such termination shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company,
as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares
shall settle in accordance with the provisions of this Agreement.
14.
Notices. All notices or other communications required or permitted to be given by any party to any other party pursuant to the
terms of this Agreement shall be in writing, unless otherwise specified, and if sent to the Agent, shall be delivered to:
B.
Riley Securities, Inc.
299
Park Avenue, 7th Floor
New
York, NY 10171
| |
Attention: |
General
Counsel |
| |
Telephone:
|
(212)
457-9947 |
| |
Email:
|
atmdesk@brileyfin.com |
with
a copy to:
Duane
Morris LLP
1540
Broadway
New
York, NY 10036
| |
Attention:
|
Dean
M. Colucci |
| |
Telephone:
|
(973)
424-2020 |
| |
Email:
|
dmcolucci@duanemorris.com |
and
if to the Company, shall be delivered to:
OKYO
Pharma Limited
Martello
Court
Admiral
Park
St.
Peter Port
Guernsey
GY1 3HB
| |
Attention:
|
Keeren
Shah |
| |
Telephone:
|
44
(0) 207 495 2379 |
| |
Email: |
kshah@okyopharma.com |
with
a copy to:
Sheppard
Mullin Richter & Hampton LLP
30
Rockefeller Plaza
New
York, NY 10112
| |
Attention: |
Jeffrey
Fessler |
| |
Telephone:
|
212-653-8700 |
| |
Email:
|
jfessler@sheppardmullin.com |
Orrick,
Herrington & Sutcliffe (UK) LLP, United Kingdom
107
Cheapside,
London
EC2V 6DN
United
Kingdom
| |
Attention: |
Ed
Lukins |
| |
Telephone:
|
+44
207 862 4620 |
| |
Email:
|
elukins@orrick.com |
Carey
Olsen (Guernsey) LLP
Carey
House
Les
Banques
St.
Peter Port
Guernsey
GY1 4BZ
Channel
Islands
| |
Attention:
|
James
Cooke |
| |
Telephone:
|
+44
1481 732016 |
| |
Email:
|
james.cooke@careyolsen.com |
Cooley
LLP
55
Hudson Yards
New
York, NY 10001
| |
Attention:
|
Ivor
Elrifi |
| |
Telephone:
|
212-479-6000 |
| |
Email:
|
ielrifi@cooley.com |
Each
party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address
for such purpose. Each such notice or other communication shall be deemed given (i) when delivered personally, by email, or by verifiable
facsimile transmission on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day, on the next
succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier and (iii) on
the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid).
For purposes of this Agreement, “Business Day” shall mean any day on which the Exchange and commercial banks in the
City of New York are open for business.
15.
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent and their respective
successors and the affiliates, controlling persons, officers and directors referred to in Section 11 hereof. References to any
of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing in
this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors
and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement. Neither the Company nor the Agent may assign its rights or obligations under this Agreement without the prior written
consent of the other party.
16.
Adjustments for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall
be adjusted to take into account any share consolidation, stock split, stock dividend, corporate domestication or similar event effected
with respect to the Placement Shares.
17.
Waiver of Immunity. To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from jurisdiction
of any court of (i) Guernsey, or any political subdivision thereof, (ii) the United States or the State of New York, (iii) any jurisdiction
in which it owns or leases property or assets or from any legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution, set-off or otherwise) with respect to themselves or their respective property and assets or
this Agreement, the Company hereby irrevocably waives such immunity in respect of its obligations under this Agreement to the fullest
extent permitted by applicable law.
18.
Entire Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement
Notices issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof
may be amended except pursuant to a written instrument executed by the Company and the Agent. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by
a court of competent jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is
valid, legal and enforceable, and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or
unenforceable term or provision was not contained herein, but only to the extent that giving effect to such provision and the remainder
of the terms and provisions hereof shall be in accordance with the intent of the parties as reflected in this Agreement.
19.
GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. THE
COMPANY AND THE AGENT EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
20.
CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS
SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION
CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS
NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM
OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND
CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE
GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO
SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
21.
Appointment of Agent for Service. The Company hereby irrevocably appoints OKYO Pharma US, Inc. as its agent for service of process
in any suit, action or proceeding described in Section 20 and agrees that service of process in any suit, action or proceeding
may be made upon it at the office of such agent. The Company waives, to the fullest extent permitted by law, any other requirements of
or objections to personal jurisdiction with respect thereto. The Company represents and warrants that such agent has agreed to act as
the Company’s agent for service of process, and the Company agrees to take any and all action, including the filing of any and
all documents and instruments, that may be necessary to continue such appointment in full force and effect.
22.
Use of Information. The Agent may not use any information gained in connection with this Agreement and the transactions contemplated
by this Agreement, including due diligence, to advise any party with respect to transactions not expressly approved by the Company.
23.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made
by facsimile transmission or email of a .pdf attachment.
24.
Effect of Headings. The section, Schedule and Exhibit headings herein are for convenience only and shall not affect the construction
hereof.
25.
Permitted Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior consent of
the Agent, and the Agent represents, warrants and agrees that, unless it obtains the prior consent of the Company, it has not made and
will not make any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus, or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing
prospectus consented to by the Agent or by the Company, as the case may be, is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free Writing
Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements
of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending
and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in Exhibit
23 hereto are Permitted Free Writing Prospectuses.
26.
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
a.
The Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction
contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company
or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand,
and the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether or not the Agent has advised or is advising the Company on other matters, and the Agent has no obligation to the Company with
respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
b.
it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;
c.
the Agent has not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated by this Agreement
and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
d.
it is aware that the Agent and its affiliates are engaged in a broad range of transactions which may involve interests that differ from
those of the Company and the Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary,
advisory or agency relationship or otherwise; and
e.
it waives, to the fullest extent permitted by law, any claims it may have against the Agent for breach of fiduciary duty or alleged breach
of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that the Agent shall not have any liability
(whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any person asserting
a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of the
Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent and its counsel confidential
to the extent not otherwise publicly-available.
27.
Definitions. As used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable
Time” means (i) each Representation Date and (ii) the time of each sale of any Placement Shares pursuant to this Agreement.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement
Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show” that is a “written
communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (3) is exempt
from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares or of the offering that does not
reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed,
in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act.
“Rule
172,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule 424(b),”
“Rule 430B,” and “Rule 433” refer to such rules under the Securities Act.
All
references in this Agreement to financial statements and schedules and other information that is “contained,” “included”
or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other information that is incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
All
references in this Agreement to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free Writing
Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission)
shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to “supplements”
to the Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection
with any offering, sale or private placement of any Placement Shares by the Agent outside of the United States.
[Remainder
of the page intentionally left blank]
If
the foregoing correctly sets forth the understanding between the Company and the Agent, please so indicate in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement between the Company and the Agent.
| |
Very
truly yours, |
| |
|
|
| |
OKYO
PHARMA LIMITED |
| |
|
|
| |
By: |
/s/ Gary S. Jacob |
| |
Name: |
Gary S. Jacob, Ph.D |
| |
Title: |
CEO |
| |
ACCEPTED
as of the date first-above written: |
| |
|
|
| |
B.
RILEY SECURITIES, INC. |
| |
|
|
| |
By: |
/s/
Patrice McNicoll |
| |
Name:
|
Patrice
McNicoll |
| |
Title:
|
Co-Head
of Investment Banking |
[Signature
Page to At Market Issuance Sales Agreement]
SCHEDULE
1
FORM
OF PLACEMENT NOTICE
| |
From: |
OKYO
Pharma Limited |
| |
|
|
| |
To: |
B.
Riley Securities, Inc. |
| |
|
|
| |
Attention:
|
[●] |
| |
|
|
| |
Subject: |
At
Market Issuance—Placement Notice |
Ladies
and Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the At Market Issuance Sales Agreement between OKYO Pharma Limited, a public
limited liability company incorporated under the laws of Guernsey (the “Company”), and B. Riley Securities, Inc. (the
“Agent”), dated December 20, 2023, the Company hereby requests that the Agent sell up to [____] of the Company’s
Ordinary Shares, no par value, at a minimum market price of $per share, during the time period beginning [month, day, time] and ending
[month, day, time].
SCHEDULE
2
Compensation
The
Company shall pay to the Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to up to 3.0%
of the gross proceeds from each sale of Placement Shares.
SCHEDULE
3
Notice
Parties
The
Company
| Gabriele
Cerrone |
gabri@bvcap.net |
| |
|
| Gary
Jacob |
gjacob@okyopharma.com |
B.
Riley Securities
| Seth
Appel |
sappel@brileyfin.com |
| |
|
| Patrice
McNicoll |
pmcnicoll@brileyfin.com |
| |
|
| Keith
Pompliano |
kpompliano@brileyfin.com |
| |
|
| Scott
Ammaturo |
sammaturo@brileyfin.com |
with
a copy to atmdesk@brileyfin.com
EXHIBIT
7(1)
Form
of Representation Date Certificate
___________,
20___
This
Representation Date Certificate (this “Certificate”) is executed and delivered in connection with Section 7(1)
of the At Market Issuance Sales Agreement (the “Agreement”), dated December 20, 2023, and entered into between
OKYO Pharma Limited (the “Company”) and B. Riley Securities, Inc. All capitalized terms used but not defined herein
shall have the meanings given to such terms in the Agreement.
The
Company hereby certifies as follows:
1.
As of the date of this Certificate (i) the Registration Statement does not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (ii) neither
the Registration Statement nor the Prospectus contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made,
not misleading and (iii) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to
make the statements therein not untrue or misleading for this paragraph 1 to be true.
2.
Each of the representations and warranties of the Company contained in the Agreement were, when originally made, and are, as of the date
of this Certificate, true and correct in all material respects.
3.
Except as waived by the Agent in writing, each of the covenants required to be performed by the Company in the Agreement on or prior
to the date of the Agreement, this Representation Date, and each such other date prior to the date hereof as set forth in the Agreement,
has been duly, timely and fully performed in all material respects and each condition required to be complied with by the Company on
or prior to the date of the Agreement, this Representation Date, and each such other date prior to the date hereof as set forth in the
Agreement has been duly, timely and fully complied with in all material respects.
4.
Subsequent to the date of the most recent financial statements in the Prospectus, and except as described in the Prospectus, including
Incorporated Documents, there has been no Material Adverse Effect.
5.
No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued, and no proceedings for
that purpose have been instituted or are pending or threatened by any securities or other governmental authority (including, without
limitation, the Commission).
6.
No order suspending the effectiveness of the Registration Statement or the qualification or registration of the Placement Shares under
the securities or Blue Sky laws of any jurisdiction are in effect and no proceeding for such purpose is pending before, or threatened,
to the Company’s knowledge or in writing by, any securities or other governmental authority (including, without limitation, the
Commission).
The
undersigned has executed this Representation Date Certificate as of the date first written above.
| |
OKYO
PHARMA LIMITED |
| |
|
|
| |
By: |
|
| |
Name:
|
|
| |
Title: |
|
EXHIBIT
23
Permitted
Issuer Free Writing Prospectuses
None.
Exhibit
5.1
Our
ref:
|
BM/JC/CC/1065260/0002/G15809782v1
|
| OKYO
Pharma Limited |
|
Martello
Court
|
|
Admiral
Park
|
|
St
Peter Port
|
|
Guernsey
|
|
| GY1
3HB |
|
| |
20
December 2023 |
(the
“Addressee”)
Dear
Sirs
OKYO
Pharma Limited (the “Company”)
| 1. |
BACKGROUND |
| |
|
| |
We have acted as counsel as to Guernsey law to the Company in connection with the Registration Statement and a Prospectus Supplement
relating to the offering of Ordinary Shares having an aggregate offering price of up to US$4 million (the “New Ordinary
Shares”) in accordance with the Sales Agreement. |
| |
|
| 2. |
Definitions
and interpretation |
| |
|
| 2.1 | Capitalised
terms used in this Opinion shall have the meanings given to them in Part A of Schedule 4
(Definitions and Interpretation). |
| | |
| 2.2 | This
Opinion shall be interpreted and construed in accordance with Part B of Schedule 4 (Definitions
and Interpretation). |
| | |
| 3. |
Scope |
| |
|
| 3.1 | This
Opinion is limited to: (a) matters of Guernsey law and practice as at the date of this Opinion;
and (b) matters expressly stated in this Opinion. |
| | |
| 3.2 | We
have made no investigation and express no opinion with respect to the law or practice of
any other jurisdiction. |
PARTNERS:
A Alexander C Anderson A Boyce T Carey R Clark T Corfield D Crosland M Dunster E Gray
D
Jones N Kapp T Lane K Le Cras D Le Marquand P Montgomery B Morgan J Morgan CONSULTANTS: N Carey
K Friedlaender J Greenfield G Hall
The
Guernsey limited liability partnership known as Carey Olsen (Guernsey) LLP is a limited liability partnership incorporated in Guernsey
on 1 March 2018 with its registered office at Carey House, Les Banques, St Peter Port GY1 4BZ and registration number 95.
| 3.3 | This
Opinion is based only on those matters of fact known to us at the date of this Opinion. |
| | |
| 4. |
Documents
EXAMINED AND SEARCHES |
| |
|
| 4.1 | In
preparing this Opinion, we have reviewed copies of the documents set out in Schedule 1 hereto. |
| | |
| 4.2 | The
documents listed in Schedule 1 hereto are the only documents and/or records we have examined
and the only enquiries we have carried out. In particular, we have made no enquiries as to
matters of fact, other than those obtained by the Searches. |
| | |
| 5. |
Assumptions
and qualifications |
| |
|
| 5.1 | This
Opinion is given: (a) in reliance on the Assumptions; and (b) on the basis that the Assumptions
(which we have not independently investigated or verified) are accurate, and have been accurate,
in all respects at the date of this Opinion, and at all other relevant times. |
| | |
| 5.2 | This
Opinion is subject to the Qualifications. |
| | |
| 6. |
opinion |
We
are of the opinion that:
| 6.1 | Incorporation,
valid existence, power, capacity and authority |
| |
6.1.1 | The
Company is duly incorporated as a non-cellular company with limited liability and validly
existing under Guernsey law and is subject to suit in its own name. |
| |
| |
| |
6.1.2 | The
Company has the corporate power and capacity to exercise
its rights and perform its obligations under the Registration Statement and the Prospectus
Supplement. |
| |
| |
| |
6.1.3 | The
New Ordinary Shares to be offered
and sold by the Company as contemplated by the Prospectus Supplement, when issued by the
Company against payment in full of the consideration in accordance with the terms set out
in the Prospectus Supplement and the Sales Agreement and duly registered in the Company’s
register of members, will be validly issued, fully paid and will not be subject to
any call for payment of further capital. |
| |
| |
| |
6.1.4 | The
performance of the Company’s obligations under the Registration Statement and the Prospectus
Supplement do not conflict with any applicable law or regulation of Guernsey to which the
Company is subject or any provision of the Memorandum and Articles of Incorporation. |
| |
6.2.1 | The
Searches revealed no evidence of any current resolutions for the winding up or dissolution
of the Company and no evidence of the appointment of any liquidator, administrator or other
such person having been given control of the Company or any of its assets. |
| |
6.2.2 | The
Searches did not reveal any proceedings against the Company including any proceedings to
declare the property of the Company to be en désastre. |
| 7. | Governing
law, limitations, benefit, disclosure and reliance |
| | |
| 7.1 | This
Opinion is governed by and shall be construed in accordance with Guernsey law. |
| | |
| 7.2 | We
assume no obligation to advise you or any other person, or undertake any investigations,
as to any legal developments or factual matters arising after the date of this Opinion that
might affect the opinions expressed in this Opinion. |
| | |
| 7.3 | This
Opinion is addressed only to you and is solely for your benefit in connection with each Document
and except with our prior written consent it may not be disclosed to, used or relied on by
any other person or for any other purpose, or referred to or made public in any way. |
Yours
faithfully
/s/
Carey Olsen (Guernsey) LLP
Schedule
1
Documents
EXAMINED
| 1. |
A
copy of the Registration Statement. |
| |
|
| 2. | A
copy of the Prospectus Supplement. |
| | |
| 3. | A
copy of the Sales Agreement. |
| | |
| 4. | The
Public Records. |
| | |
| 5. |
The Director Resolutions. |
| |
|
| 6. |
The Certificate
of Incorporation. |
| |
|
| 7. |
The Memorandum and
Articles of Incorporation. |
SCHEDULE
2
ASSUMPTIONS
| 1. |
Copies |
| |
|
| |
The
completeness and conformity to original documents of all copies examined by us. |
| |
|
| 2. |
Validity
under other laws |
| |
|
| |
The
obligations expressed to be assumed by each party in the Registration Statement and the Prospectus Supplement constitute the legal,
valid and binding and enforceable obligations of that party under all laws other than, in the case of the Company, Guernsey law. |
| |
|
| 3. |
No
conflict – foreign law or regulation |
| |
|
| |
There
is no provision of the law or regulation of any jurisdiction other than Guernsey that would have any adverse implication in relation
to the opinions expressed in this Opinion. |
| |
|
| 4. |
Searches |
| |
|
| 4.1 | All
documents or information that are required to be filed or registered by or in relation to
the Company with the Registrar of Companies (whether or not any time limit for such filing
or registration has yet expired) have been so filed or registered and appear on the Public
Records and are accurate and complete. |
| | |
| 5. |
Unknown
facts |
| |
|
| |
That
there is no document or other information or matter (including, without limitation, any arrangement or understanding) that has not
been provided or disclosed to us that is relevant to or that might affect the opinions expressed in this Opinion. |
schedule
3
Qualifications
| 1. |
No
conflict – contractual obligations etc. |
| |
|
| |
We offer no opinion on whether
there are any contractual or other obligations or restrictions binding on the Company (beyond any obligation or restriction stated
in the Further Documents) in relation to the opinions expressed in this Opinion. |
| |
|
| 2. | Searches |
| | |
| 2.1 | The
Searches are not conclusively capable of revealing whether or not: |
| 2.1.1 | a
winding up order has been made or a resolution passed for the winding up of the Company;
or |
| | | |
| 2.1.2 | an
order has been made or a resolution passed appointing a liquidator or administrator or other
person to control the assets of the Company, |
|
as notice of these matters
might not be filed with the Registry or the Greffe immediately and, when filed, might not be entered on the Public Records of the
Company immediately. A company search conducted in Guernsey is limited in respect of the information it produces. The Companies Law
allows for various periods of time to file certain information with the Registry including resolutions, notices and court orders
which if the relevant period is still running may not appear in time for the search. Any changes to the details of the directors of
a company must be filed within 14 days of that change. There is no requirement to file at the Registry information regarding the
shareholders or secretary of a company or regarding mortgages, security interests or charges created by a company other than in
respect of real property situated in Guernsey. Moreover, a company search carried out in Guernsey is unlikely to reveal any
information as to any such procedure or similar proceedings initiated in any other jurisdiction. It should be noted that the
Guernsey Courts have the power to recognise, in Guernsey, insolvency office holders appointed in respect of a Guernsey company
pursuant to the laws of a foreign jurisdiction. Any such recognition may not be revealed by our Searches. |
| |
|
| 2.2 | There
is no official register of pending actions in Guernsey available for public inspection and
no formal procedure for determining whether any proceedings have been commenced against the
Company including as to whether proceedings have commenced to declare the property of the
Company en désastre; the Searches and enquiry of the Public Records referred
to in this Opinion are an informal enquiry only and cannot be relied upon exclusively. |
SCHEDULE
4
Definitions
and interpretation
Part
A
Definitions
| “Articles
of Incorporation” |
means
a copy of the current articles of incorporation of the Company, as obtained from the Registry on the date hereof; |
| |
|
| “Assumptions” |
means
the assumptions set out in Schedule 2 (Assumptions); |
| |
|
| “Certificate
of Incorporation” |
means
a copy of the Company’s certificate of incorporation; |
| |
|
| “Companies
Law” |
means
the Companies (Guernsey) Law, 2008; |
| |
|
| “Director
Resolutions” |
means:
(a) the written resolutions of the directors of the Company passed on 17 May 2023 and 20 December 2023 in which the directors of
the Company resolved to approve (as applicable) (i) the preparation, execution and filing with the SEC of the Registration Statement;
(ii) the preparation, execution and filing with the SEC of the Prospectus Supplement; and (iii) the issuance of the New Ordinary
Shares; |
| |
|
| “Greffe” |
means
the registry of the Guernsey Courts; |
| |
|
| “Guernsey” |
for
the avoidance of doubt means the islands of Guernsey (and excludes Alderney and Sark); |
| |
|
| “Guernsey
Court” |
means
the Royal Court of Guernsey which definition shall include any court in Guernsey where the context so requires; |
| |
|
| “Memorandum” |
means
the memorandum of incorporation of the Company as obtained from the Registry on the date hereof; |
| |
|
| “New
Ordinary Shares” |
has
the meaning given in paragraph 1 of this Opinion; |
| |
|
| “Opinion” |
means
this legal opinion and includes the Schedules; |
| |
|
| “Ordinary
Shares” |
means
ordinary shares of no par value each in the capital of the Company; |
| |
|
| “Qualifications” |
means
the observations and qualifications set out in Schedule 3 (Qualifications); |
| Prospectus
Supplement |
means
the prospectus supplement filed with the SEC on or about the date hereof, incorporating by refence the Registration Statement; |
| |
|
| “Public
Records” |
means
together the public records of the Company on file and available for the purposes of public inspection: |
| |
● |
at the Registry (including its public website), on the date hereof;
and |
| |
|
|
| |
● |
on
a search of the computerised records of matters raised in the Guernsey Courts available for inspection at the Greffe on the date
hereof; |
| “Registration
Statement” |
the
registration statement on Form F-3 (File No. 333-272516), including a base prospectus, filed with the SEC on June 8, 2023, and declared
effective on June 14, 2023; |
| |
|
| “Registry” |
means
the Registry of Companies in Guernsey; |
| |
|
| “Sales
Agreement” |
means
a Market Issuance Sales Agreement dated [ ] between the Company and B. Riley Securities, Inc.; |
| |
|
| “Search”
and “Searches” |
means
our inspection of the Public Records on the date hereof; and |
| |
|
| “SEC” |
means
the U.S. Securities and Exchange Commission.
|
Part
B
Interpretation
| 1. |
References in this
Opinion to: |
| |
|
| 1.1 | a
Schedule are references to a schedule to this Opinion; |
| | |
| 1.2 | a
“person” include any body of persons corporate or unincorporated; and |
| | |
| 1.3 | legislation
includes, where relevant, a reference to such legislation as amended at the date of this
Opinion. |
| | |
| 2. | Where
a capitalised term appears in the left-hand column of Part A of Schedule 4 (Definitions
and Interpretation) in the singular, its plural form, if used in this Opinion, shall
be construed accordingly, and vice versa. |
| | |
| 3. | Headings
in this Opinion are inserted for convenience only and shall not affect the construction of
this Opinion. |
Grafico Azioni OKYO Pharma (NASDAQ:OKYO)
Storico
Da Ott 2024 a Nov 2024
Grafico Azioni OKYO Pharma (NASDAQ:OKYO)
Storico
Da Nov 2023 a Nov 2024
