AURIS MEDICAL HOLDING AG
(Exact Name of Registrant as Specified in
Its Charter)
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Switzerland
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Not Applicable
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification Number)
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Bahnhofstrasse 21
6300 Zug, Switzerland
+41 (0)41 729 71 94
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(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
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Cogency Global, Inc.
10 East 40
th
Street
New York, NY 10016
(212) 947-7200
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(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
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Copies to:
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Marcel Fausten
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
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Approximate date of commencement of
proposed sale to the public
: From time to time after this Registration Statement becomes effective.
If the only securities being registered
on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
☐
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the
following box.
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If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering.
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If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
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If this Form is a registration statement
pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.
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If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount to be Registered(1)
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Proposed Maximum Offering Price Per Unit (2)
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Proposed Maximum Aggregate Offering Price
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Amount of
Registration Fee(3)
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Primary Offering:
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Common Shares, nominal value CHF 0.02 per share
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(1)
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Debt securities
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(1)
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Warrants
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(1)
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Purchase Contracts
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(1)
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Units
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(1)
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Subtotal
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$100,000,000
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$100,000,000
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12,120
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Secondary Offering:
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Common Shares, nominal value CHF 0.02 per share
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15,673
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10,187.45
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1.23
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Total
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100,010,187.45
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$12,121.23
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(1)
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There are being registered hereunder
such indeterminate number of the securities of each identified class being registered
as may be sold by the registrant from time to time at indeterminate prices, with the
maximum aggregate public offering price not to exceed $100,000,000. If any debt securities
are issued at an the selling shareholder identified in the Prospectus forming part of
this registration statement.
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(2)
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The proposed maximum aggregate price
per unit of each class of securities will be determined from time to time by the registrant
in connection with the issuance by the registrant of the securities registered hereunder
and is not specified as to each class of securities pursuant to the General Instruction
II.C. of Form F-3 under the Securities Act of 1933.
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(3)
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Estimated solely for the purpose
of calculating the registration fee pursuant to Rule 457(o) under the Securities Act
of 1933 with respect to the securities to be sold by the registrant and pursuant to Rule
457(c) under the Securities Act of 1933 with respect to the 15,673 common shares that
may be sold by the selling shareholder. The proposed maximum offering price of the 15,673
common shares to be sold by the selling shareholder is based on the average of the high
and low sale prices per share of the common stock on the Nasdaq Capital Market on October 29,
2018. In no event will the aggregate offering price of all securities sold by the
registrant from time to time pursuant to this registration statement exceed $100,000,000.
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The Registrant hereby
amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete
and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission
is effective. This prospectus is not an offer to sell these securities, and we are not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
NOVEMBER 1, 2018
PROSPECTUS
$100,000,000
Common Shares, Debt Securities, Warrants, Purchase Contracts and Units offered by the Company
and
15,673 Common Shares offered by the Selling Shareholder
AURIS MEDICAL HOLDING AG
(incorporated in Switzerland)
We may offer, from time to time, in one
or more offerings, common shares, senior debt securities, subordinated debt securities, warrants, purchase contracts or units,
which we collectively refer to as the “securities” and the selling shareholder may offer up to 15,673 common shares.
The aggregate initial offering price of the securities that we may offer and sell under this prospectus will not exceed $100,000,000.
We may offer and sell any combination of the securities described in this prospectus in different series, at times, in amounts,
at prices and on terms to be determined at or prior to the time of each offering. This prospectus describes the general terms of
these securities and the general manner in which these securities will be offered. We will provide the specific terms of these
securities in supplements to this prospectus. The prospectus supplements will also describe the specific manner in which these
securities will be offered and may also supplement, update or amend information contained in this prospectus. You should read this
prospectus and any applicable prospectus supplement before you invest.
The securities covered by this prospectus
may be offered through one or more underwriters, dealers and agents, or directly to purchasers. The names of any underwriters,
dealers or agents, if any, will be included in a supplement to this prospectus. For general information about the distribution
of securities offered, please see “Plan of Distribution” beginning on page 30.
Our common shares are listed on
the Nasdaq Global Market under the symbol “EARS.” On October 31, 2018, the last sale price of our common shares
as reported by the Nasdaq Capital Market was $0.64 per common share. As of October 31, 2018, the aggregate market value of
our outstanding common shares held by non-affiliates was approximately $36.2 million based on 29,612,738 outstanding
common shares, of which approximately 23,757,300 common shares were held by non-affiliates. We have offered $4.8 million of
our common shares pursuant to General Instruction I.B.5 of Form F-3 during the prior 12 calendar month period that ends on,
and includes, the date of this prospectus.
Investing in our securities involves
risks. See “Risk Factors” beginning on page 4 of this prospectus.
Neither the U.S. Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2018.
We have not authorized anyone to provide any information other than that contained or incorporated by reference in this prospectus
or any related prospectus supplement or in any free writing prospectus prepared by or on behalf of us or to which we have
referred you. Neither we nor the selling shareholder have authorized anyone to provide you with different or additional information.
We nor the selling shareholder take no responsibility for, and can provide no assurance as to the reliability of, any other
information that others may give you. Neither we nor the
selling shareholder are making an offer of securities in any state where the offer is not permitted. You should not assume that
the information contained in or incorporated by reference in this prospectus is accurate as of any date other than the date on
the front of this prospectus.
table
of contents
Page
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About This Prospectus
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1
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Where You Can Find More Information
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1
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Special Note Regarding Forward-Looking Statements
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1
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Auris Medical Holding AG
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4
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Risk Factors
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4
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Ratio of Earnings to Fixed Charges
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4
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Use of Proceeds
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4
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Selling Shareholder
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5
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Description of Share Capital and Articles of Association
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6
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Comparison of Swiss Law and Delaware Law
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17
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Description of Debt Securities
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23
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Description of Warrants
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27
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Description of Purchase Contracts
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28
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Description of Units
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29
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Forms of Securities
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30
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Plan of Distribution
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32
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Incorporation of Certain Information by Reference
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34
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Enforcement of Civil Liabilities
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35
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Expenses
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36
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Legal Matters
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36
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Experts
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36
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Unless otherwise indicated or the context
otherwise requires, all references in this prospectus to “Auris Medical Holding AG” or “Auris,” the “Company,”
“we,” “our,” “ours,” “us” or similar terms refer to Auris Medical Holding AG (formerly
Auris Medical AG), together with its subsidiaries, prior to our corporate reorganization by way of the Merger (as defined below)
on March 13, 2018 (i.e. to the transferring entity), and to Auris Medical Holding AG (formerly Auris Medical NewCo Holding AG),
together with its subsidiaries after the Merger (i.e. to the surviving entity). The trademarks, trade names and service marks appearing
in this prospectus are property of their respective owners.
Unless otherwise indicated or the context
otherwise requires, all references in this prospectus to our common shares as of any date prior to March 13, 2018 refer to our
common shares (having a nominal value of CHF 0.40 each) prior to the 10:1 “reverse stock split” effected through the
Merger and all references to our common shares as of, and after, March 13, 2018 refer to our common shares (having a nominal
value of CHF 0.02 each) after the 10:1 “reverse stock split” effected through the Merger.
About This
Prospectus
This prospectus is part of a registration
statement that we filed with the Securities and Exchange Commission, or the SEC, utilizing a “shelf” registration process.
Under this shelf process, we may sell any combination of the securities described in this prospectus in one or more offerings and
the selling shareholder may sell up to 15,673 common shares in one or more offerings. This prospectus provides you with a general
description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained
in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described
under the headings “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
We have filed or incorporated by reference
exhibits to the registration statement of which this prospectus forms a part. You should read the exhibits carefully for provisions
that may be important to you.
Neither the delivery of this prospectus
nor any sale made under it implies that there has been no change in our affairs or that the information in this prospectus is correct
as of any date after the date of this prospectus. You should not assume that the information in this prospectus, including any
information incorporated in this prospectus by reference, the accompanying prospectus supplement or any free writing prospectus
prepared by us, is accurate as of any date other than the date on the front of those documents. Our business, financial condition,
results of operations and prospects may have changed since that date.
You should not assume that the information
contained in this prospectus is accurate as of any other date.
Where You
Can Find More Information
We file annual reports on Form 20-F, reports
on Form 6-K, and other information with the SEC under the Securities Exchange Act of 1934, as amended, or the Exchange Act. You
may read and copy this information at the following location of the SEC: Public Reference Room, 100 F Street, N.E., Washington,
D.C. 20549.
You may obtain information on the operation
of the SEC’s Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet site that contains
reports and other information about issuers like us who file electronically with the SEC. The address of the site is http://www.sec.gov.
As a foreign private issuer, we are exempt
under the Exchange Act from, among other things, the rules prescribing the furnishing and content of proxy statements, and our
directors, executive officers and principal shareholders are exempt from the reporting and short-swing profit recovery provisions
contained in Section 16 of the Exchange Act.
Special
Note Regarding Forward-Looking Statements
This prospectus and the financial statements
and other documents incorporated by reference in this prospectus contain forward-looking statements, including statements concerning
our industry, our operations, our anticipated financial performance and financial condition, and our business plans and growth
strategy and product development efforts. These statements constitute forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Exchange Act. The words “may,”
“might,” “will,” “should,” “estimate,” “project,” “plan,”
“anticipate,” “expect,” “intend,” “outlook,” “believe” and other similar
expressions are intended to identify forward-looking statements. Readers are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of their dates. These forward-looking statements are based on estimates and assumptions by our
management that, although we believe to be reasonable, are inherently uncertain and subject to a number of risks and uncertainties.
Forward-looking statements appear in a
number of places in this prospectus and include, but are not limited to, statements regarding our intent, belief or current expectations.
Forward-looking statements are based on our management’s beliefs and assumptions and on information currently available to
our management. Such statements
are subject to risks and uncertainties,
and actual results may differ materially from those expressed or implied in the forward-looking statements due to various factors,
including, but not limited to:
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our operation as a development-stage company with limited operating history and a history of operating losses;
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our need for substantial additional funding to continue the development of our product candidates before we can expect to become
profitable from sales of our products;
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the outcome of our review of strategic options and of any action that we may pursue as a result of such review;
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our dependence on the success of Keyzilen® (AM-101), AM-111 and AM-125, which are still in clinical development and may
eventually prove to be unsuccessful, or that the post-hoc analysis in the subpopulation of profound acute hearing loss patients
in the HEALOS trial may not be considered acceptable for regulatory filing purposes by relevant health authorities, which may impair
our ability to raise additional funding to continue the development of our product candidates;
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the chance that we may become exposed to costly and damaging liability claims resulting from the testing of our product candidates
in the clinical or in the commercial stage;
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the chance our clinical trials may not be completed on schedule, or at all, as a result of factors such as delayed enrollment
or the identification of adverse effects;
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uncertainty surrounding whether any of our product candidates will receive regulatory approval, which is necessary before they
can be commercialized;
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if our product candidates obtain regulatory approval, our being subject to expensive, ongoing obligations and continued regulatory
overview;
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enacted and future legislation may increase the difficulty and cost for us to obtain marketing approval and commercialization;
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the chance that we do not obtain orphan drug exclusivity for AM-111, which would allow our competitors to sell products that
treat the same conditions;
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dependence on governmental authorities and health insurers establishing adequate reimbursement levels and pricing policies;
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our products may not gain market acceptance, in which case we may not be able to generate product revenues;
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our reliance on our current strategic relationships with INSERM or Xigen and the potential success or failure of strategic
relationships, joint ventures or mergers and acquisitions transactions;
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our reliance on third parties to conduct our nonclinical and clinical trials and on third-party, single-source suppliers to
supply or produce our product candidates;
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our ability to obtain, maintain and protect our intellectual property rights and operate our business without infringing or
otherwise violating the intellectual property rights of others;
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our ability to comply with the requirements under our term loan facility with Hercules, including repayment of amounts outstanding
when due;
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our ability to meet the continuing listing requirements of Nasdaq and remain listed on the Nasdaq Capital Market;
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the chance that certain intangible assets related to our product candidates will be impaired; and
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other risk factors set forth in our most recent Annual Report on Form 20-F.
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Our actual results or performance could
differ materially from those expressed in, or implied by, any forward-looking statements relating to those matters. Accordingly,
no assurances can be given that any of the events anticipated by the forward-looking statements will transpire or occur, or if
any of them do so, what impact they will have on our results of operations, cash flows or financial condition. Except as required
by law, we are under no obligation, and expressly disclaim any obligation, to update, alter or otherwise revise any forward-looking
statement, whether written or oral, that may be made from time to time, whether as a result of new information, future events or
otherwise.
Auris Medical
Holding AG
We are a clinical-stage biopharmaceutical
company focused on the development of novel products for the treatment of inner ear disorders. We have two lead clinical-stage
product candidates, (i) Keyzilen® (AM-101), which is being developed for the treatment of acute inner ear tinnitus and (ii)
AM-111, being developed for the treatment of acute inner ear hearing loss and has been granted orphan drug status by the FDA and
the EMA and has been granted fast track designation by the FDA. AM-125 is being developed for the treatment of vestibular disorders.
In addition, we are pursuing early stage projects for the treatment of tinnitus.
We are a stock corporation organized under
the laws of Switzerland. We began our current operations in 2003. On April 22, 2014, we changed our name from Auris Medical AG
to Auris Medical Holding AG and transferred our operational business to our newly incorporated subsidiary Auris Medical AG, which
is now our main operating subsidiary. On March 13, 2018, we effected a corporate reorganization through a merger (the “Merger”)
into a newly formed holding company for the purpose of effecting the equivalent of a 10-1 “reverse share split.” Our
principal office is located at Bahnhofstrasse 21, 6300 Zug, Switzerland, telephone number +41 (0)41 729 71 94. We maintain a website
at www.aurismedical.com where general information about us is available. Investors can obtain copies of our filings with the Securities
and Exchange Commission, or SEC, from this site free of charge, as well as from the SEC website at www.sec.gov. We are not incorporating
the contents of our website into this prospectus.
Risk Factors
Before making a decision to invest in our
securities, you should carefully consider the risks described under “Risk Factors” in the applicable prospectus supplement
and in our then most recent Annual Report on Form 20-F, and in any updates to those risk factors in our reports on Form 6-K incorporated
herein, together with all of the other information appearing or incorporated by reference in this prospectus and any applicable
prospectus supplement, in light of your particular investment objectives and financial circumstances.
Ratio of
Earnings to Fixed Charges
The following table sets forth our ratio
of earnings to fixed charges for each of the periods indicated. You should read this table in conjunction with the consolidated
financial statements and notes incorporated by reference in this prospectus.
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Six
Months Ended
June 30,
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Fiscal
Year Ended
December 31,
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2018
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2017
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2016
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2015
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Ratio of earnings to fixed charges
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*
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*
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*
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*
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*
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Our earnings were insufficient to cover fixed charges by CHF 419,602, CHF 1,343,479, CHF 673,390 and CHF 94,732 for the
six months ended June 30, 2018 and the years ended December 31,
2017, 2016 and 2015, respectively.
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For purposes of calculating the ratios
in the table above, earnings consist of net profit/(loss) before income taxes plus fixed charges. Fixed charges consist of rental
expenses and cash relevant interest expenses.
Use of Proceeds
Unless otherwise indicated in a prospectus
supplement, the net proceeds from our sale of the securities will be used for general corporate purposes and other business opportunities.
We will not receive any of the proceeds
from the sale of any common shares offered by the selling shareholder.
Selling
Shareholder
This prospectus also relates to the possible
resale from time to time by Hercules Capital, Inc., whom we refer to in this prospectus as the “selling shareholder,”
of up to 15,673 of our common shares. Such common shares may be acquired by the selling shareholder from us in private placement
transactions exempt from registration under the Securities Act, upon exercise of a warrant to purchase common shares. We issued
such warrants to the selling shareholder in a private placement transaction in connection with our entering into a term loan facility
with the selling shareholder.
If the selling shareholder offers common
shares in any future offering, an applicable prospectus supplement may set forth the nature of any position, office or other material
relationship which the selling shareholder has had with the Company or any of its predecessors or affiliates during the three years
prior to the date of the applicable prospectus supplement, the number of our common shares owned by the selling shareholder before
and after the offering and the number of our common shares to be offered by the selling shareholder.
We will pay the fees and the expenses incurred
in effecting the registration of the common shares covered by this prospectus, including, without limitation, all registration
and filing fees, fees and expenses of our counsel and accountants and fees and expenses of selling shareholder’ counsel.
The selling shareholder will pay any underwriting or broker discounts and any commissions incurred by the selling shareholder in
selling its common shares.
The selling shareholder may sell or transfer
all or a portion of its common shares pursuant to any available exemption from the registration requirements of the Securities
Act.
Description
of Share Capital and Articles of Association
The Company
We are registered with the
commercial register of the canton of Zug, Switzerland, under the company number CHE-474.294.374.
We
and our subsidiaries are together referred to as the “Group”.
Our purpose as stated in article 2 of our articles
of association is to participate in business organizations of all kinds in Switzerland and abroad, particularly in relation to
pharmaceutical products and services. Our purpose is to participate in business organizations of all kinds in Switzerland and abroad,
particularly in relation to pharmaceutical products and services. Moreover, we may transact any business conducive to our development
or furthering our corporate purpose. We may also arrange financing for our own or a third party account, in particular we may grant
loans to companies of the Group or to third parties, as well as guarantees or surety bonds of any sort for obligations towards
companies of the Group. These loans or guarantees may also be granted without any remuneration or compensation. We may in addition
participate in cash-pooling operations within the Group.
Share Capital
As of the date of this prospectus,
our issued fully paid-in share capital consists of CHF 592,254.76, divided into 29,612,738 common shares with a nominal
value of CHF 0.02 each and no preferred shares.
Articles of Association
Unless otherwise indicated or the context
otherwise requires, when we refer to our articles of association in this prospectus, we refer to our amended and restated articles
of association dated as of October 31, 2018.
Ordinary Capital Increase, Authorized
and Conditional Share Capital
Under Swiss law, we may increase our share
capital (
Aktienkapital
) with a resolution of the general meeting of shareholders (ordinary capital increase) that must be
carried out by the board of directors within three months in order to become effective. In the case of subscription and increase
against payment of contributions in cash, a resolution passed by an absolute majority of the shares represented at the general
meeting of shareholders is required. In the case of subscription and increase against contributions in kind or to fund acquisitions
in kind, when shareholders’ statutory pre-emptive rights are withdrawn or where transformation of reserves into share capital
is involved, a resolution passed by two-thirds of the shares represented at a general meeting of shareholders and the absolute
majority of the nominal amount of the shares represented is required.
Our shareholders, by a resolution passed
by two-thirds of the shares represented at a general meeting of shareholders and the absolute majority of the nominal amount of
the shares represented, may empower our board of directors to issue shares of a specific aggregate nominal amount up to a maximum
of 50% of the share capital in the form of:
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·
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conditional capital (
bedingtes Kapital
) for the purpose of issuing shares in connection with, among other things, (i)
option and conversion rights granted in connection with loans, warrants, convertible bonds or other financial market instruments
issued by the Company or one of our subsidiaries or (ii) grants of rights to employees, members of our board of directors or consultants
or our subsidiaries to subscribe for new shares (conversion or option rights); and/or ·
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·
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authorized capital (
genehmigtes Kapital
) to be utilized by the board of directors within a period determined by the
shareholders but not exceeding two years from the date of the shareholder approval.
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Pre-emptive Rights
Pursuant to the Swiss Code of Obligations,
or CO, shareholders have pre-emptive rights (
Bezugsrechte
) to subscribe for new issuances of shares. With respect to conditional
capital in connection with the issuance of conversion rights, convertible bonds or similar debt instruments, shareholders have
advance subscription rights (
Vorwegzeichnungsrechte
) for the subscription of conversion rights, convertible bonds or similar
debt instruments.
A resolution passed at a general meeting
of shareholders by two-thirds of the shares represented and the absolute majority of the nominal value of the shares represented
may authorize our board of directors to withdraw or limit pre-emptive rights and/or advance subscription rights in certain circumstances.
If pre-emptive rights are granted, but
not exercised, the board of directors may allocate the pre-emptive rights as it elects.
With respect to our authorized share capital,
the board of directors is authorized by our articles of association to withdraw or to limit the preemptive rights of shareholders,
and to allocate them to third parties or to us, in the event that the newly issued shares are used for a purpose set forth in our
articles of association.
Our Authorized Share Capital
The relevant
provision of the articles of association was adopted on October 31, 2018 (article 3a of the articles of association) and reads
as follows (translation of the binding original German version):
The
Board of Directors is authorized at any time until 27 June 2020 to increase the share capital by a maximum aggregate amount
of CHF 140,661.20 through the issuance of not more than 7,033,060 registered shares, which shall be fully paid-in, with a
nominal value of CHF 0.02 each.
Increases in partial amounts are permitted.
The Board of Directors may issue new shares also by means of underwriting or in any other manner by one or more banks and subsequent
offer to shareholders or third parties. The Board of Directors determines the type of contributions, the issue price, the time
of the issue, the conditions for the exercise of the pre-emptive rights, the allocation of pre-emptive rights which have not been
exercised, and the date on which the dividend entitlement starts. The Board of Directors is authorized to permit, to restrict or
to deny the trade with pre-emptive rights.
If pre-emptive rights are granted, but
not exercised, the Board of Directors may use the respective shares in the interest of the Corporation.
The Board of Directors is authorized
to restrict or to exclude the pre-emptive rights of the shareholders, and to allocate them to third parties or to the Corporation,
in the event of use of the shares for the purpose of: a) expanding the shareholder base in certain capital markets or in the context
of the listing, admission to official trading or registration of the shares at domestic or international stock exchanges;
b) granting an over-allotment option (“greenshoe”) to one or several underwriters in connection with a placement of
shares; c) share placements, provided the issue price is determined by reference to the market price; d) the participation
of employees, Members of the Board of Directors or consultants of the Corporation or of one of its Group companies according to
one or several equity incentive plans issued by the Board of Directors; e) the acquisition of companies, company assets, participations,
the acquisition of products, intellectual property rights, licenses or new investment projects or for public or private share placements
for the financing and/or refinancing of such transactions; f) for raising equity capital in a fast and flexible manner as
such transaction would be difficult to carry out, or could be carried out only at less favorable terms, without the exclusion of
the pre-emptive rights of the existing shareholders; or g) the acquisition of a participation in the Corporation by a strategic
partner (including in the case of a public takeover offer).
”
Within the limits of Swiss law, the general
meeting of shareholders may increase or alter the authorization granted to the board of directors. See “—Ordinary Capital
Increase, Authorized and Conditional Share Capital.”
To effect any capital increase based on
our authorized share capital in connection with any offering, we will have to follow the relevant procedures under Swiss law. In
particular, our board of directors will have to approve a general authorization resolution (Ermächtigungsbeschluss), issue
a capital increase report (Kapitalerhöhungsbericht), approve a notarized confirmation resolution (Feststellungsbeschluss)
on the capital increase and the articles of association, and obtain (i) duly executed subscription form(s) covering the subscription
of the relevant number of new shares, (ii) a report of an audit firm relating to the withdrawal of the pre-emptive rights, as well
as (iii) a banking confirmation confirming the payment of the aggregate nominal value of the respective number of new shares to
a special Swiss bank account, all in accordance with Swiss law. Our board of directors will subsequently have to file the relevant
documentation accompanied by an application form with the competent commercial register. Any issuance of common shares based on
such filing(s) is subject to the recording of the respective capital increase(s) in the commercial register in accordance with
Swiss law.
Our Conditional Share Capital
Conditional Share Capital for Warrants and
Convertible Bonds
The relevant provision of the
articles of association was adopted on October 31, 2018 (article 3b of the articles of association) and reads as follows (translation
of the binding original German version):
The
Corporation’s share capital shall be increased by a maximum aggregate amount of CHF 175,203.50 through the issuance of not
more than 8,760,175 registered shares, with a nominal value of CHF 0.02 each, by the exercise of option and conversion rights
which are granted in connection with bonds, similar obligations, loans or other financial market instruments or contractual obligations
of the Corporation or one of its Group companies, and/or by the exercise of option rights issued by the Corporation or one of
its Group companies (“Financial Instruments”). The pre-emptive rights of shareholders are excluded. The holders of
Financial Instruments are entitled to the new shares. The conditions of the Financial Instruments shall be determined by the Board
of Directors.
When issuing Financial Instruments the
Board of Directors is authorized to limit or exclude the advance subscription rights of shareholders:
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for the purpose of financing or refinancing the acquisition of enterprises, divisions thereof, or of participations, products,
intellectual property rights, licenses, cooperations or of newly planned investments of the Corporation;
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b)
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if the issue occurs on domestic or international capital markets including private placements; or
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for purposes of an underwriting of the Financial Instruments by a banking institution or a consortium of banks with subsequent
offering to the public.
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To the extent that the advance subscription
rights are excluded, i) the Financial Instruments are to be placed at market conditions; ii) the exercise period, the conversion
period or the exchange period of the Financial Instruments may not exceed 10 years as of the date of the issue; and iii) the
conversion price, the exchange price or other exercise price of the Financial Instruments must be determined by reference to the
market price.”
Conditional Share Capital for Equity Incentive
Plans
The relevant provision of the
articles of association was adopted on October 31, 2018 (last paragraph of article 3b of the articles of association) and reads
as follows (translation of the binding original German version):
The
Corporation’s share capital shall, to the exclusion of the preemptive rights and advance subscription rights of shareholders,
be increased by a maximum aggregate amount of CHF 18,300.00 through the issuance of not more than 915,000 registered shares, which
shall be fully paid-in, with a nominal value of CHF 0.02 each, by issuance of shares upon the exercise of options or pre-emptive
rights thereof, which have been issued or granted to employees, Members of the Board of Directors or consultants of the Corporation
or of one of its Group companies according to one or several equity incentive plans or regulations issued by the Board of Directors.
The details shall be determined by the Board of Directors.
Uncertificated Securities
Our shares are uncertificated securities
(
Wertrechte
, within the meaning of art. 973c of the CO) and, when administered by a financial intermediary (
Verwahrungsstelle
,
within the meaning of the Federal Act on Intermediated Securities, “FISA”), qualify as intermediated securities (
Bucheffekten
,
within the meaning of the FISA). In accordance with art. 973c of the CO, we maintain a non-public register of uncertificated securities
(
Wertrechtebuch
). We may at any time convert uncertificated securities into share certificates (including global certificates),
one kind of certificate into another, or share certificates (including global certificates) into uncertificated securities. If
registered in our share register, a shareholder may at any time request from us a written confirmation in respect of the shares.
Shareholders are not entitled, however, to request the printing and delivery of certificates.
Participation certificates and profit
sharing certificates
The Company has not issued any non-voting
equity securities, such as participation certificates (
Partizipationsscheine
) or profit sharing certificates (
Genussscheine
),
nor has it issued any preference shares (
Vorzugsaktien
).
No Additional Capital Contributions
Under Swiss law, shareholders are not obliged
to make any capital contribution in excess of the subscription amount.
General Meeting of Shareholders
Ordinary/extraordinary meetings and powers
The general meeting of shareholders is
our supreme corporate body. Under Swiss law, ordinary and extraordinary general meetings of shareholders may be held. Under Swiss
law, an ordinary general meeting of shareholders must be held annually within six months after the end of a corporation’s
financial year. In our case, this means on or before June 30.
The following powers are vested exclusively
in the general meeting of shareholders:
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adopting and amending our articles of association;
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electing the members of the board of directors, the chairman of the board of directors, the members of the compensation committee,
the auditors and the independent proxy;
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approving the annual report, the annual statutory financial statements and the consolidated financial statements, and deciding
on the allocation of profits as shown on the balance sheet, in particular with regard to dividends and bonus payments to members
of the board of directors;
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approving the compensation of members of the board of directors and executive management, which under Swiss law is not necessarily
limited to the executive officers;
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discharging the members of the board of directors and executive management from liability with respect to their tenure in the
previous financial year;
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dissolving the Company with or without liquidation;
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deciding matters reserved to the general meeting of shareholders by law or our articles of association or that are presented
to it by the board of directors.
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An extraordinary general meeting of shareholders
may be called by a resolution of the board of directors or, under certain circumstances, by the Company’s auditor, liquidator
or the representatives of convertible bond holders, if any. In addition, the board of directors is required to convene an extraordinary
general meeting of shareholders if shareholders representing at least ten percent of the share capital request such general meeting
of shareholders in writing. Such request must set forth the items to be discussed and the proposals to be acted upon. The board
of directors must convene an extraordinary general meeting of shareholders and propose financial restructuring measures if, based
on the Company’s stand-alone annual statutory balance sheet, half of our share capital and reserves are not covered by our
assets.
Voting and Quorum Requirements
Shareholder resolutions and elections (including
elections of members of the board of directors) require the affirmative vote of the absolute majority of shares represented at
the general meeting of shareholders, unless otherwise stipulated by law.
A resolution of the general meeting of
the shareholders passed by two-thirds of the shares represented at the meeting, and the absolute majority of the nominal value
of the shares represented is required for:
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amending the Company’s corporate purpose;
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creating or cancelling shares with preference rights or amending rights attached to such shares;
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cancelling or amending the transfer restrictions of registered shares;
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creating authorized or conditional share capital;
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increasing the share capital out of equity, against contributions in kind or for the purpose of acquiring specific assets and
granting specific benefits;
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limiting or suppressing shareholder’s pre-emptive rights;
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dissolving or liquidating the Company.
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The same voting requirements apply to resolutions
regarding transactions among corporations based on Switzerland’s Federal Act on Mergers, Demergers, Transformations and the
Transfer of Assets, or the Merger Act (including a merger, demerger or conversion of a corporation) see “—Compulsory
Acquisitions; Appraisal Rights.”
In accordance with Swiss law and generally
accepted business practices, our articles of association do not provide quorum requirements generally applicable to general meetings
of shareholders. To this extent, our practice varies from the requirement of Nasdaq Listing Rule 5620(c), which requires an issuer
to provide in its bylaws for a generally applicable quorum, and that such quorum may not be less than one-third of the outstanding
voting stock.
Notice
General meetings of shareholders must be
convened by the board of directors at least twenty days before the date of the meeting. The general meeting of shareholders is
convened by way of a notice appearing in our official publication medium, currently the Swiss Official Gazette of Commerce. Registered
shareholders may also be informed by ordinary mail. The notice of a general meeting of shareholders must state the items on the
agenda, the proposals to be acted upon and, in case of elections, the names of the nominated candidates. Except in the limited
circumstances listed below, a resolution may not be passed at a general meeting without proper notice. This limitation does not
apply to proposals to convene an extraordinary general meeting of shareholders or to initiate a special investigation. No previous
notification is required for proposals concerning items included in the agenda or for debates that do not result in a vote. The
notice period for a general meeting of shareholders may be waived if all shareholders are present or represented at such meeting.
Agenda Requests
Pursuant to Swiss law, one or more shareholders
whose combined shareholdings represent the lower of (i) one tenth of the share capital or (ii) an aggregate nominal value of at
least CHF 1,000,000, may request that an item be included in the agenda for an ordinary general meeting of shareholders. To be
timely, the shareholder’s request must be received by us at least 45 calendar days in advance of the meeting. The request
must be made in writing and contain, for each of the agenda items, the following information:
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a brief description of the business desired to be brought before the ordinary general meeting of shareholders and the reasons
for conducting such business at the ordinary general meeting of shareholders;
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the name and address, as they appear in the share register, of the shareholder proposing such business; and ·
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all other information required under the applicable laws and stock exchange rules.
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Our business report, the compensation report
and the auditor’s report must be made available for inspection by the shareholders at our registered office no later than
20 days prior to the general meeting of shareholders. Shareholders of record are notified of this in writing.
Voting Rights
Each of our shares entitles a holder to
one vote, regardless of its nominal value. The shares are not divisible. The right to vote and the other rights of share ownership
may only be exercised by shareholders (including any nominees) or usufructuaries who are entered in our share register at cut-off
date determined by the board of directors. Those entitled to vote in the general meeting of shareholders may be represented by
the independent proxy holder (annually elected by the general meeting of shareholders), another registered shareholder or third
person with written authorization to act as proxy or the shareholder’s legal representative. The chairman has the power to
decide whether to recognize a power of attorney. The Board of Directors issues the regulations on the determination of shareholder
status, on proxies and voting instructions, and on the issue of voting cards.
Dividends and Other Distributions
Our board of directors may propose to shareholders
that a dividend or other distribution be paid but cannot itself authorize the distribution. Dividend payments require a resolution
passed by an absolute majority of the shares represented at a general meeting of shareholders. In addition, our auditors must confirm
that the dividend proposal of our board of directors conforms to Swiss statutory law and our articles of association.
Under Swiss law, we may pay dividends only
if we have sufficient distributable profits brought forward from the previous business years (
Gewinnvortrag
), or if we have
distributable reserves (
frei verfügbare Reserven
), each as evidenced by our audited stand-alone statutory balance sheet
prepared pursuant to Swiss law, and after allocations to reserves required by Swiss law and the articles of association have been
deducted. We are not permitted to pay interim dividends out of profit of the current business year.
Distributable reserves are generally booked
either as “free reserves” (
freie Reserven
) or as “reserve from capital contributions” (
Reserven
aus Kapitaleinlagen
). Under the CO, if our general reserves (
allgemeine Reserve
) amount to less than 20% of our share
capital recorded in the commercial register (i.e., 20% of the aggregate nominal value of our issued capital), then at least 5%
of our annual profit must be retained as general reserves. The CO permits us to accrue additional general reserves. Further, a
purchase of our own shares (whether by us or a subsidiary) reduces the distributable reserves in an amount corresponding to the
purchase price of such own shares. Finally, the CO under certain circumstances requires the creation of revaluation reserves which
are not distributable.
Distributions out of issued share capital
(i.e. the aggregate nominal value of our issued shares) are not allowed and may be made only by way of a share capital reduction.
Such a capital reduction requires a resolution passed by an absolute majority of the shares represented at a general meeting of
shareholders. The resolution of the shareholders must be recorded in a public deed and a special audit report must confirm that
claims of our creditors remain fully covered despite the reduction in the share capital recorded in the commercial register. The
share capital may be reduced below CHF 100,000 only if and to the extent that at the same time the statutory minimum share capital
of CHF 100,000 is reestablished by sufficient new fully paid-up capital. Upon approval by the general meeting of shareholders of
the capital reduction, the board of directors must give public notice of the capital reduction resolution in the Swiss Official
Gazette of Commerce three times and notify creditors that they may request, within two months of the third publication, satisfaction
of or security for their claims. The reduction of the share capital may be implemented only after expiration of this time limit.
Our board of directors determines the date
on which the dividend entitlement starts. Dividends are usually due and payable shortly after the shareholders have passed the
resolution approving the payment, but shareholders may also resolve at the ordinary general meeting of shareholders to pay dividends
in quarterly or other installments.
Transfer of Shares
Shares in uncertificated form (
Wertrechte
)
may only be transferred by way of assignment. Shares that constitute intermediated securities (
Bucheffekten
) may only be
transferred when a credit of the relevant intermediated securities to the acquirer’s securities account is made in accordance
with the relevant provisions of the FISA. Article 4 of our articles of association provides that in the case of securities held
with an intermediary such as a registrar, transfer agent, trust corporation, bank or similar entity, any transfer, grant of a security
interest or usufructuary right in such intermediated securities and the appurtenant rights associated therewith requires the cooperation
of the intermediary in order for such transfer, grant of a security interest or usufructuary right to be valid against us.
Voting rights may be exercised only after
a shareholder has been entered in our share register (
Aktienbuch
) with his or her name and address (in the case of legal
entities, the registered office) as a shareholder with voting rights.
Any acquirer of our shares who is not registered
in our share register as a shareholder with voting rights will still be entitled to dividends and other rights with financial value
with respect to such shares.
Inspection of Books and Records
Under the CO, a shareholder has a right
to inspect our share register with respect to his own shares and otherwise to the extent necessary to exercise his shareholder
rights. No other person has a right to inspect our share register. Our books and correspondence may be inspected with the express
authorization of the general meeting of shareholders or by resolution of the board of directors and subject to the safeguarding
of our business secrets. See “Comparison of Swiss Law and Delaware Law—Inspection of Books and Records.”
Special Investigation
If the shareholders’ inspection rights
as outlined above prove to be insufficient in the judgment of the shareholder, any shareholder may propose to the general meeting
of shareholders that specific facts be examined by a special commissioner in a special investigation. If the general meeting of
shareholders approves the proposal, we or any shareholder may, within 30 calendar days after the general meeting of shareholders,
request a court in Zug, Switzerland, our registered office, to appoint a special commissioner. If the general meeting of shareholders
rejects the request, one or more shareholders representing at least 10 percent of the share capital or holders of shares in an
aggregate nominal value of at least CHF 2,000,000 may request that the court appoint a special commissioner. The court will issue
such an order if the petitioners can demonstrate that the board of directors, any member of the board of directors or our executive
management infringed the law or our articles of association and thereby caused damages to the Company or the shareholders. The
costs of the investigation would generally be allocated to us and only in exceptional cases to the petitioners.
Compulsory Acquisitions; Appraisal
Rights
Business combinations and other transactions
that are governed by the Swiss Merger Act (i.e. mergers, demergers, transformations and certain asset transfers) are binding on
all shareholders. A statutory merger or demerger requires approval of two-thirds of the shares represented at a general meeting
of shareholders and the absolute majority of the nominal value of the shares represented.
Swiss corporations may be acquired by an
acquirer through the direct acquisition of the share capital of the Swiss corporation. The Swiss Merger Act provides for the possibility
of a so-called “cash-out” or “squeeze-out” merger if the acquirer controls 90% of the outstanding shares.
In these limited circumstances, minority shareholders of the corporation being acquired may be compensated in a form other than
through shares of the acquiring corporation (for instance, through cash or securities of a parent corporation of the acquiring
corporation or of another corporation). Following a statutory merger or demerger, pursuant to the Merger Act, shareholders can
file an appraisal action against the surviving company. If the consideration is deemed inadequate, the court will determine an
adequate compensation payment.
In addition, under Swiss law, the sale
of “all or substantially all of our assets” by us may require the approval of two-thirds of the number of shares represented
at a general meeting shareholders and the absolute majority of the nominal value of the shares represented. Whether a shareholder
resolution is required depends on the particular transaction, including whether the following test is satisfied:
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a core part of the Company’s business is sold without which it is economically impracticable or unreasonable to continue
to operate the remaining business;
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the Company’s assets, after the divestment, are not invested in accordance with the Company’s statutory business
purpose; and ·
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the proceeds of the divestment are not earmarked for reinvestment in accordance with the Company’s business purpose but,
instead, are intended for distribution to the Company’s shareholders or for financial investments unrelated to the Company’s
business.
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Board of Directors
Our articles of association provide that
the board of directors shall consist of at least three and not more than nine members.
The members of the board of directors and
the chairman are elected annually by the general meeting of shareholders for a period until the completion of the subsequent ordinary
general meeting of shareholders and are eligible for re-election. Each member of the board of directors must be elected individually.
Unless an exception is granted by the general meeting of shareholders, only persons who have not completed their seventy-fifth
year of age on the election date are eligible for election. Under Swiss law, a member of the Board of Directors is not required
to be a shareholder.
Powers
The board of directors has the following
non-delegable and inalienable powers and duties:
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the ultimate direction of the business of the Company and issuing of the relevant directives;
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laying down the organization of the Company;
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formulating accounting procedures, financial controls and financial planning, to the extent required for the governance of
the Company;
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nominating and removing persons entrusted with the management and representation of the Company and regulating the power to
sign for the Company;
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the ultimate supervision of those persons entrusted with management of the Company, with particular regard to adherence to
law, our articles of association, and regulations and directives of the Company;
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issuing the annual report and the compensation report, and preparing for the general meeting of shareholders and carrying out
its resolutions; and
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informing the court in case of over-indebtedness.
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The board of directors may, while retaining
such non-delegable and inalienable powers and duties, delegate some of its powers, in particular direct management, to a single
or to several of its members, managing directors, committees or to third parties who need be neither members of the board of directors
nor shareholders. Pursuant to Swiss law and Article 13 of our articles of association, details of the delegation and other procedural
rules such as quorum requirements must be set in the organizational rules issued by the board of directors.
Indemnification of Executive Management and
Directors
Subject to Swiss law, Article 17 of our
articles of association provides for indemnification of the existing and former members of the board of directors, executive management
and their heirs, executors and administrators, against liabilities arising in connection with the performance of their duties in
such capacity, and permits us to advance the expenses of defending any act, suit or proceeding to our directors and executive management.
In addition, under general principles of
Swiss employment law, an employer may be required to indemnify an employee against losses and expenses incurred by such employee
in the proper execution of their duties under the employment agreement with the employer. See “Comparison of Swiss Law and
Delaware Law—Indemnification of directors and executive management and limitation of liability.”
We have entered into indemnification agreements
with each of the members of our board of directors and executive management. The indemnification agreements and our articles of
association require us to indemnify our directors and executive officers to the fullest extent permitted by law.
Conflict of Interest, Management Transactions
Swiss law does not provide for a general
provision regarding conflicts of interest. However, the CO contains a provision that requires our directors and executive management
to safeguard the Company’s interests and imposes a duty of loyalty and duty of care on our directors and executive management.
This rule is generally understood to disqualify directors and executive management from participation in decisions that directly
affect them. Our directors and executive officers are personally liable to us for breach of these provisions. In addition, Swiss
law contains provisions under which directors and all persons engaged in the Company’s management are liable to the Company,
each shareholder and the Company’s creditors for damages caused by an intentional or negligent violation of their duties.
Furthermore, Swiss law contains a provision under which payments made to any of the Company’s shareholders or directors or
any person associated with any such shareholder or director, other than payments made at arm’s length, must be repaid to
the Company if such shareholder or director acted in bad faith.
Our board of directors has adopted a Code
of Business Conduct and Ethics that covers a broad range of matters, including the handling of conflicts of interest.
Principles of the Compensation of the
Board of Directors and the Executive Management
Pursuant to Swiss law our shareholders
must annually resolve on the approval of the compensation of the board of directors and the persons whom the board of directors
has, fully or partially, entrusted with the management of the Company. The board of directors must issue, on an annual basis, a
written compensation report that must be reviewed together with a report on our business by our auditor. The compensation report
must disclose all compensation, loans and other forms of indebtedness granted by the Company, directly or indirectly, to current
or former members of the board of directors and executive management to the extent related to their former role within the Company
or not on customary market terms.
The disclosure concerning compensation,
loans and other forms of indebtedness must include the aggregate amount for the board of directors and the executive management
as well as the particular amount for each member of the board of directors and executive officer, specifying the name and function
of each respective person.
Certain forms of compensation are prohibited
for members of our board of directors and executive management, such as:
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severance payments provided for either contractually or in the articles of association (compensation due until the termination
of a contractual relationship does not qualify as severance payment);
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incentive fees for the acquisition or transfer of corporations or parts thereof by the Company or by companies being, directly
or indirectly, controlled by us;
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loans, other forms of indebtedness, pension benefits not based on occupational pension schemes and performance-based compensation
not provided for in the articles of association; and
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equity securities and conversion and option rights awards not provided for in the articles of association.
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Compensation to members of the board of
directors and executive management for activities in entities that are, directly or indirectly, controlled by the Company is prohibited
if the compensation (i) would have been prohibited if it was paid directly by the Company, (ii) is not provided for in the articles
of association or (iii) has not been approved by the general meeting of shareholders.
The general meeting of shareholders annually
votes on the proposals of the board of directors with respect to:
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the maximum aggregate amount of compensation of the board of directors for the subsequent term of office; and ·
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the maximum aggregate amount of compensation of the executive management for the subsequent financial year.
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The board of directors may submit for approval
at the general meeting of shareholders deviating or additional proposals relating to the same or different periods.
In the event that at the general meeting
of shareholders the shareholders do not approve a proposal of the board of directors, the board of directors must form a new proposal
for the maximum aggregate compensation and the particular compensation for each individual, taking into account all relevant factors,
and submit the new proposal for approval by the same general meeting of shareholders, at a subsequent extraordinary general meeting
or the next ordinary general meeting of shareholders.
In addition to fixed compensation, members
of the board of directors and executive management may be paid variable compensation, depending on the achievement of certain performance
criteria. The performance criteria may include individual targets, targets of the Company or parts thereof and targets in relation
to the market, other companies or comparable benchmarks, taking into account the position and level of responsibility of the recipient
of the variable compensation. The board of directors or, where delegated to it, the compensation committee shall determine the
relative weight of the performance criteria and the respective target values.
Compensation may be paid or granted in
the form of cash, shares, financial instruments, in kind, or in the form of other types of benefits. The board of directors or,
where delegated to it, the compensation committee shall determine grant, vesting, exercise and forfeiture conditions.
Borrowing Powers
Neither Swiss law nor our articles of association
restrict in any way our power to borrow and raise funds. The decision to borrow funds is made by or under the direction of our
board of directors, and no approval by the shareholders is required in relation to any such borrowing.
Repurchases of Shares and Purchases of
Own Shares and Other Limitations on the Rights to Own Securities
The CO limits our right to purchase and
hold our own shares. We and our subsidiaries may purchase shares only if and to the extent that (i) we have freely distributable
reserves in the amount of the purchase price; and (ii) the aggregate nominal value of all shares held by us does not exceed
10 percent of our share capital. Pursuant to Swiss law, where shares are acquired in connection with a transfer restriction set
out in the articles of association, the foregoing upper limit is 20 percent. We currently do not have any transfer restriction
in our articles of association. If we own shares that exceed the threshold of 10 percent of our share capital, the excess must
be sold or cancelled by means of a capital reduction within two years.
Shares held by us or our subsidiaries are
not entitled to vote at the general meeting of shareholders but are entitled to the economic benefits applicable to the shares
generally, including dividends and pre-emptive rights in the case of share capital increases.
Swiss law and/or our articles of association
do not impose any restrictions on the exercise of voting or any other shareholder right by shareholders resident outside Switzerland.
Notification and Disclosure of Substantial
Share Interests
The disclosure obligations generally applicable
to shareholders of Swiss corporations under the Swiss Financial Market Infrastructure Act do not apply to us since our shares are
not listed on a Swiss exchange.
Pursuant to art. 663c of the CO, Swiss
corporations whose shares are listed on a stock exchange must disclose their significant shareholders and their shareholdings in
the notes to their balance sheet, where this information is known or ought to be known. Significant shareholders are defined as
shareholders and groups of shareholders linked through voting rights who hold more than five percent of all voting rights.
Stock Exchange Listing
Our common shares are listed on the Nasdaq
Capital Market under the symbol “EARS.”
The Depository Trust Company
Initial settlement of any common shares
to be issued pursuant to this prospectus will take place through The Depository Trust Company, or DTC, in accordance with its customary
settlement procedures for equity securities. Each person owning common shares held through DTC must rely on the procedures thereof
and on institutions that have accounts therewith to exercise any rights of a holder of the shares.
Transfer Agent and Registrar of Shares
Our share register is currently kept by
American Stock Transfer & Trust Company, LLC., which acts as transfer agent and registrar. The share register reflects only
record owners of our shares. Swiss law does not recognize fractional shares.
Comparison
of Swiss Law and Delaware Law
The Swiss laws applicable to Swiss corporations
and their shareholders differ from laws applicable to U.S. corporations and their shareholders. The following table summarizes
significant differences in shareholder rights between the provisions of the Swiss Code of Obligations (
Schweizerisches Obligationenrecht
)
and the Swiss Ordinance against excessive compensation in listed stock corporations applicable to our company and the Delaware
General Corporation Law applicable to companies incorporated in Delaware and their shareholders. Please note that this is only
a general summary of certain provisions applicable to companies in Delaware. Certain Delaware companies may be permitted to exclude
certain of the provisions summarized below in their charter documents.
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DELAWARE CORPORATE LAW
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SWISS CORPORATE LAW
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Mergers and similar arrangements
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Under the Delaware General Corporation Law, with certain exceptions, a merger, consolidation, sale, lease or transfer of all or substantially all of the assets of a corporation must be approved by the board of directors and a majority of the outstanding shares entitled to vote thereon. A shareholder of a Delaware corporation participating in certain major corporate transactions may, under certain circumstances, be entitled to appraisal rights pursuant to which such shareholder may receive cash in the amount of the fair value of the shares held by such shareholder (as determined by a court) in lieu of the consideration such shareholder would otherwise receive in the transaction. The Delaware General Corporation Law also provides that a parent corporation, by resolution of its board of directors, may merge with any subsidiary, of which it owns at least 90.0% of each class of capital stock without a vote by the shareholders of such subsidiary. Upon any such merger, dissenting shareholders of the subsidiary would have appraisal rights.
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Under Swiss law, with certain exceptions, a merger or a division of the corporation or a sale of all or substantially all of the assets of a corporation must be approved by two-thirds of the shares represented at the respective general meeting of shareholders as well as the absolute majority of the share capital represented at such shareholders’ meeting. The articles of association may increase the voting threshold. A shareholder of a Swiss corporation participating in a statutory merger or demerger pursuant to the Swiss Merger Act can file an appraisal right lawsuit against the surviving company. As a result, if the consideration is deemed “inadequate,” such shareholder may, in addition to the consideration (be it in shares or in cash) receive an additional amount to ensure that such shareholder receives the fair value of the shares held by such shareholder. Swiss law also provides that a parent corporation, by resolution of its board of directors, may merge with any subsidiary, of which it owns at least 90.0% of the shares without a vote by shareholders of such subsidiary, if the shareholders of the subsidiary are offered the payment of the fair value in cash as an alternative to shares.
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Shareholders’ suits
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Class actions and derivative actions generally are available to shareholders of a Delaware corporation for, among other things, breach of fiduciary duty, corporate waste and actions not taken in accordance with applicable law. In such actions, the court has discretion to permit the winning party to recover attorneys’ fees incurred in connection with such action.
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Class actions and derivative actions as such are not available under Swiss law. Nevertheless, certain actions may have a similar effect. A shareholder is entitled to bring suit against directors for breach of, among other things, their fiduciary duties and claim the payment of the company’s damages to the corporation. Likewise, an appraisal lawsuit won by a shareholder will indirectly compensate all shareholders. Under Swiss law, the winning party is generally entitled to recover attorneys’ fees incurred in connection with such action, provided, however, that the court has discretion to permit the shareholder whose claim has been dismissed to recover attorneys’ fees incurred to the extent he acted in good faith.
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Shareholder vote on board and management compensation
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Under the Delaware General Corporation Law, the board of directors has the authority to fix the compensation of directors, unless otherwise restricted by the certificate of incorporation or bylaws.
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Pursuant to the Swiss Ordinance against excessive compensation in listed stock corporations, the general meeting of shareholders has the non-transferable right, amongst others, to vote on the compensation due to the
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DELAWARE CORPORATE LAW
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SWISS CORPORATE LAW
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board of directors, executive management and advisory boards.
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Annual vote on board renewal
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Unless directors are elected by written
consent in lieu of an annual meeting, directors are elected in an annual meeting of stockholders on a date and at a time designated
by or in the manner provided in the bylaws. Re-election is possible.
Classified boards are permitted.
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The general meeting of shareholders elects annually (i.e. until the following general meeting of shareholders) the members of the board of directors (including the chairman) and the members of the compensation committee individually for a term of office of one year. Re-election is possible.
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Indemnification of directors and executive management and limitation of liability
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The Delaware General Corporation Law provides
that a certificate of incorporation may contain a provision eliminating or limiting the personal liability of directors (but not
other controlling persons) of the corporation for monetary damages for breach of a fiduciary duty as a director, except no provision
in the certificate of incorporation may eliminate or limit the liability of a director for:
·
any breach of a director’s duty of loyalty to the corporation or its shareholders;
·
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
·
statutory liability for unlawful payment of dividends or unlawful stock purchase or redemption; or
·
any transaction from which the director derived an improper personal benefit.
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Under Swiss corporate law, an indemnification
of a director or member of the executive management in relation to potential personal liability is not effective to the extent
the director or member of the executive management intentionally or negligently violated his or her corporate duties towards the
corporation (certain views advocate that at least a grossly negligent violation is required to exclude the indemnification). Most
violations of corporate law are regarded as violations of duties towards the corporation rather than towards the shareholders.
In addition, indemnification of other controlling persons is not permitted under Swiss corporate law, including shareholders of
the corporation.
Nevertheless, a corporation may enter into
and pay for directors’ and officers’ liability insurance which typically covers negligent acts as well.
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A Delaware corporation may indemnify any
person who was or is a party or is threatened to be made a party to any proceeding, other than an action by or on behalf of the
corporation, because the person is or was a director or officer, against liability incurred in connection with the proceeding if
the director or officer acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests
of the corporation; and the director or officer, with respect to any criminal action or proceeding, had no reasonable cause
to believe his or her conduct was unlawful.
Unless ordered by a court, any foregoing
indemnification is subject to a determination that the director or officer has met the applicable standard of conduct:
·
by
a majority vote of the directors who are not parties to the proceeding, even though less than
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DELAWARE CORPORATE LAW
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SWISS CORPORATE LAW
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a quorum;
·
by a committee of directors designated by a majority vote of the eligible directors, even though less than a quorum;
·
by independent legal counsel in a written opinion if there are no eligible directors, or if the eligible directors so direct;
or
·
by the shareholders.
Moreover, a Delaware corporation may not
indemnify a director or officer in connection with any proceeding in which the director or officer has been adjudged to be liable
to the corporation unless and only to the extent that the court determines that, despite the adjudication of liability but in view
of all the circumstances of the case, the director or officer is fairly and reasonably entitled to indemnity for those expenses
which the court deems proper.
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Directors’ fiduciary duties
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A director of a Delaware corporation has
a fiduciary duty to the corporation and its shareholders. This duty has two components:
·
the duty of care; and ·
·
the duty of loyalty.
The duty of care requires that a director
act in good faith, with the care that an ordinarily prudent person would exercise under similar circumstances. Under this duty,
a director must inform himself of, and disclose to shareholders, all material information reasonably available regarding a significant
transaction. The duty of loyalty requires that a director act in a manner he reasonably believes to be in the best interests of
the corporation. He must not use his corporate position for personal gain or advantage. This duty prohibits self-dealing by a director
and mandates that the best interest of the corporation and its shareholders take precedence over any interest possessed by a director,
officer or controlling shareholder and not shared by the shareholders generally. In general, actions of a director are presumed
to have been made on an informed basis, in good faith and in the honest belief that the action taken was in the best interests
of the corporation. However, this presumption may be rebutted by evidence of a breach of one of the fiduciary duties.
Should such evidence be presented concerning
a transaction by a director, a director must prove the procedural fairness of the transaction, and that the transaction was of
fair value to the corporation.
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A director of a Swiss corporation has a
fiduciary duty to the corporation only. This duty has two components:
·
the duty of care; and ·
·
the duty of loyalty.
The duty of care requires that a director
act in good faith, with the care that an ordinarily prudent director would exercise under similar circumstances. Under this duty,
a director must inform himself of, and disclose, all material information reasonably available regarding a significant transaction.
The duty of loyalty requires that a director
act in a manner he reasonably believes to be in the best interest of the corporation. He must not use his corporate position for
personal gain or advantage. This duty prohibits in principle self-dealing by a director and mandates that the best interest of
the corporation take precedence over any interest possessed by a director or officer.
The burden of proof for a violation of
these duties is with the corporation or with the shareholder bringing a suit against the director.
Directors also have an obligation to treat
shareholders equally proportionate to their share ownership.
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DELAWARE CORPORATE LAW
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SWISS CORPORATE LAW
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Shareholder action by written consent
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A Delaware corporation may, in its certificate of incorporation, eliminate the right of shareholders to act by written consent.
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Shareholders of a Swiss corporation may only exercise their voting rights in a general meeting of shareholders and may not act by written consent.
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Shareholder proposals
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A shareholder of a Delaware corporation has the right to put any proposal before the annual meeting of shareholders, provided it complies with the notice provisions in the governing documents. A special meeting may be called by the board of directors or any other person authorized to do so in the governing documents, but shareholders may be precluded from calling special meetings.
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At any general meeting of shareholders
any shareholder may put proposals to the meeting if the proposal is part of an agenda item. Unless the articles of association
provide for a lower threshold or for additional shareholders’ rights:
·
one or several shareholders representing 10.0% of the share capital may ask that a general meeting of shareholders be called
for specific agenda items and specific proposals; and ·
·
one or several shareholders representing 10.0% of the share capital or CHF 1.0 million of nominal share capital may ask
that an agenda item including a specific proposal be put on the agenda for a regularly scheduled general meeting of shareholders,
provided such request is made with appropriate notice.
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Any shareholder can propose candidates
for election as directors without prior written notice.
In addition, any shareholder is entitled,
at a general meeting of shareholders and without advance notice, to (i) request information from the Board on the affairs of the
company (note, however, that the right to obtain such information is limited), (ii) request information from the auditors on the
methods and results of their audit, and (iii) request, under certain circumstances and subject to certain conditions, a special
audit.
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Cumulative voting
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Under the Delaware General Corporation Law, cumulative voting for elections of directors is not permitted unless the corporation’s certificate of incorporation provides for it.
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Cumulative voting is not permitted under Swiss corporate law. Pursuant to Swiss law, shareholders can vote for each proposed candidate, but they are not allowed to cumulate their votes for single candidates. An annual individual election of all members of the board of directors (including the chairman) for a term of office of one year (i.e. until the following annual general meeting) is mandatory for listed companies.
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Removal of Directors
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A Delaware corporation with a classified board may be removed only for cause with the approval of a majority of the outstanding shares entitled to vote, unless the certificate of incorporation provides otherwise.
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A Swiss corporation may remove, with or without cause, any director at any time with a resolution passed by an absolute majority of the shares represented at a general meeting of shareholders. The articles of association may provide for a qualified majority for the removal of a director.
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DELAWARE CORPORATE LAW
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SWISS CORPORATE LAW
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Transactions with interested shareholders
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The Delaware General Corporation Law generally prohibits a Delaware corporation from engaging in certain business combinations with an “interested shareholder” for three years following the date that such person becomes an interested shareholder. An interested shareholder generally is a person or group who or which owns or owned 15.0% or more of the corporation’s outstanding voting stock within the past three years.
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No such rule applies to a Swiss corporation.
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Dissolution; Winding up
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Unless the board of directors of a Delaware corporation approves the proposal to dissolve, dissolution must be approved by shareholders holding 100.0% of the total voting power of the corporation. Only if the dissolution is initiated by the board of directors may it be approved by a simple majority of the corporation’s outstanding shares. Delaware law allows a Delaware corporation to include in its certificate of incorporation a supermajority voting requirement in connection with dissolutions initiated by the board.
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A dissolution and winding up of a Swiss corporation requires the approval by two-thirds of the shares represented as well as the absolute majority of the nominal value of the share capital represented at a general meeting of shareholders passing a resolution on such dissolution and winding up. The articles of association may increase the voting thresholds required for such a resolution (but only by way of a resolution with the majority stipulated by law).
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Variation of right of shares
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A Delaware corporation may vary the rights of a class of shares with the approval of a majority of the outstanding shares of such class, unless the certificate of incorporation provides otherwise.
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A Swiss corporation may modify the rights of a category of shares with (i) a resolution passed by an absolute majority of the shares represented at the general meeting of shareholders and (ii) a resolution passed by an absolute majority of the shares represented at the special meeting of the affected preferred shareholders. Shares that are granted more voting power are not regarded a special class for these purposes.
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Amendment of governing documents
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A Delaware corporation’s governing documents may be amended with the approval of a majority of the outstanding shares entitled to vote, unless the certificate of incorporation provides otherwise.
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By way of a public deed, the articles of association of a Swiss corporation may be amended with a resolution passed by an absolute majority of the shares represented at such meeting, unless otherwise provided in the articles of association. There are a number of resolutions, such as an amendment of the stated purpose of the corporation and the introduction of authorized and conditional capital, that require the approval by two-thirds of the votes and an absolute majority of the nominal value of the shares represented at a shareholders’ meeting. The articles of association may increase the voting thresholds.
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Inspection of Books and Records
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Shareholders of a Delaware corporation, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose, and to obtain copies of list(s) of shareholders and other books and records of the corporation and its subsidiaries, if any, to the extent the books and records of such subsidiaries are available to
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Shareholders of a Swiss corporation may only inspect books and records if the general meeting of shareholders or the board of directors approved such inspection. The inspection right is limited in scope and only extends to information required for the exercise of shareholder rights and does not extend to confidential information. The right to inspect the share register is limited to the right to inspect that shareholder’s own
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DELAWARE CORPORATE LAW
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SWISS CORPORATE LAW
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the corporation.
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entry in the share register.
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Payment of dividends
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The board of directors may approve a dividend
without shareholder approval. Subject to any restrictions contained in its certificate of incorporation, the board may declare
and pay dividends upon the shares of its capital stock either:
·
out of its surplus, or ·
·
in case there is no such surplus, out of its net profits for the fiscal year in which the dividend is declared and/or the
preceding fiscal year.
Stockholder approval is required to authorize
capital stock in excess of that provided in the charter. Directors may issue authorized shares without stockholder approval.
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Dividend payments are subject to the approval
of the general meeting of shareholders. The board of directors may propose to shareholders that a dividend shall be paid but cannot
itself authorize the distribution.
Payments out of the Company’s share
capital (in other words, the aggregate nominal value of the Company’s registered share capital) in the form of dividends
are not allowed and may be made by way of a capital reduction only. Dividends may be paid only from the profits brought forward
from the previous business years or if the Company has distributable reserves, each as will be presented on the Company’s
audited annual stand-alone balance sheet. The dividend may be determined only after the allocations to reserves required by the
law and the articles of association have been deducted.
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Creation and issuance of new shares
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All creation of shares require the board of directors to adopt a resolution or resolutions, pursuant to authority expressly vested in the board of directors by the provisions of the company’s certificate of incorporation.
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All creation of shares requires a shareholders’ resolution documented by way of a public deed. Authorized shares can be, once created by shareholders’ resolution, issued by the board of directors (subject to fulfillment of the authorization). Conditional shares are created and issued through the exercise of options and conversion rights related to debt instruments issued by the board of directors or such rights issued to employees.
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Description
of Debt Securities
The debt securities will be our direct
general obligations. The debt securities will be either senior debt securities or subordinated debt securities and may be secured
or unsecured and may be convertible into other securities, including our common shares. The debt securities will be issued under
one or more separate indentures between our company and a financial institution that will act as trustee. Senior debt securities
will be issued under a senior indenture. Subordinated debt securities will be issued under a subordinated indenture. Each of the
senior indenture and the subordinated indenture is referred to individually as an indenture and collectively as the indentures.
Each of the senior debt trustee and the subordinated debt trustee is referred to individually as a trustee and collectively as
the trustees. The material terms of any indenture will be set forth in the applicable prospectus supplement.
We have summarized certain terms and provisions
of the indentures. The summary is not complete. The indentures are subject to and governed by the Trust Indenture Act of 1939,
as amended. The senior indenture and subordinated indenture are substantially identical, except for the provisions relating to
subordination.
Neither indenture will limit the amount
of debt securities that we may issue. We may issue debt securities up to an aggregate principal amount as we may authorize from
time to time. The applicable prospectus supplement will describe the terms of any debt securities being offered. These terms will
include some or all of the following:
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·
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classification as senior or subordinated debt securities;
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·
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ranking of the specific series of debt securities relative to other outstanding indebtedness, including subsidiaries’
debt;
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·
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if the debt securities are subordinated, the aggregate amount of outstanding indebtedness, as of a recent date, that is senior
to the subordinated securities, and any limitation on the issuance of additional senior indebtedness;
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·
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the designation, aggregate principal amount and authorized denominations;
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·
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the date or dates on which the principal of the debt securities may be payable;
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·
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the rate or rates (which may be fixed or variable) per annum at which the debt securities shall bear interest, if any;
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·
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the date or dates from which such interest shall accrue, on which such interest shall be payable, and on which a record shall
be taken for the determination of holders of the debt securities to whom interest is payable;
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·
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the place or places where the principal and interest shall be payable;
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·
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our right, if any, to redeem the debt securities, in whole or in part, at our option and the period or periods within which,
the price or prices at which and any terms and conditions upon which such debt securities may be so redeemed, pursuant to any sinking
fund or otherwise;
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·
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our obligation, if any, of the Company to redeem, purchase or repay any debt securities pursuant to any mandatory redemption,
sinking fund or other provisions or at the option of a holder of the debt securities;
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·
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if other than denominations of $2,000 and any higher integral multiple of $1,000, the denominations in which the debt securities
will be issuable;
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·
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if other than the currency of the United States, the currency or currencies, in which payment of the principal and interest
shall be payable;
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·
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whether the debt securities will be issued in the form of global securities;
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·
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provisions, if any, for the defeasance of the debt securities;
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·
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any U.S. federal income tax consequences; and
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·
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other specific terms, including any deletions from, modifications of or additions to the events of default or covenants described
below or in the applicable indenture.
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Senior Debt
We will issue under the senior indenture
the debt securities that will constitute part of our senior debt. These senior debt securities will rank equally and
pari passu
with all our other unsecured and unsubordinated debt.
Subordinated Debt
We will issue under the subordinated indenture
the debt securities that will constitute part of our subordinated debt. These subordinated debt securities will be subordinate
and junior in right of payment, to the extent and in the manner set forth in the subordinated indenture, to all our “senior
indebtedness.” “Senior indebtedness” is defined in the subordinated indenture and generally includes obligations
of, or guaranteed by, us for borrowed money, or as evidenced by bonds, debentures, notes or other similar instruments, or in respect
of letters of credit or other similar instruments, or to pay the deferred purchase price of property or services, or as a lessee
under capital leases, or as secured by a lien on any asset of ours. “Senior indebtedness” does not include the subordinated
debt securities or any other obligations specifically designated as being subordinate in right of payment to, or pari passu with,
the subordinated debt securities. In general, the holders of all senior indebtedness are first entitled to receive payment in full
of such senior indebtedness before the holders of any of the subordinated debt securities are entitled to receive a payment on
account of the principal or interest on the indebtedness evidenced by the subordinated debt securities in certain events. These
events include:
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·
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subject to Swiss law, any insolvency or bankruptcy proceedings, or any receivership, dissolution, winding up, total or partial
liquidation, reorganization or other similar proceedings in respect of us or a substantial part of our property, whether voluntary
or involuntary;
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·
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(i) a default having occurred with respect to the payment of principal or interest on or other monetary amounts due and payable
with respect to any senior indebtedness or (ii) an event of default (other than a default described in clause (i) above) having
occurred with respect to any senior indebtedness that permits the holder or holders of such senior indebtedness to accelerate the
maturity of such senior indebtedness. Such a default or event of default must have continued beyond the period of grace, if any,
provided in respect of such default or event of default, and such a default or event of default shall not have been cured or waived
or shall not have ceased to exist; and ·
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·
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the principal of, and accrued interest on, any series of the subordinated debt securities having been declared due and payable
upon an event of default pursuant to the subordinated indenture. This declaration must not have been rescinded and annulled as
provided in the subordinated indenture.
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Authentication and Delivery
We will deliver the debt securities to
the trustee for authentication, and the trustee will authenticate and deliver the debt securities upon our written order.
Events of Default
When we use the term “Event of Default”
in the indentures with respect to the debt securities of any series, set forth below are some examples of what we mean:
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(1)
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default in the payment of the principal on the debt securities when it becomes due and payable at maturity or otherwise;
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(2)
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default in the payment of interest on the debt securities when it becomes due and payable, and such default continues for a
period of 30 days;
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(3)
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default in the performance, or breach, of any covenant in the indenture (other than defaults specified in clauses (1) or (2)
above) and the default or breach continues for a period of 90 consecutive days or more after written notice to us by the trustee
or to us and the trustee by the holders of 25% or more in aggregate principal amount of the outstanding debt securities of all
series affected thereby;
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(4)
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the occurrence of certain events of bankruptcy, insolvency, or similar proceedings with respect to us or any substantial part
of our property; or
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(5)
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any other Events of Default that may be set forth in the applicable prospectus supplement.
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If an Event of Default (other than an Event
of Default specified in clause (4) above) with respect to the debt securities of any series then outstanding occurs and is continuing,
then either the trustee or the holders of not less than 25% in principal amount of the securities of all such series then outstanding
in respect of which an Event of Default has occurred may by notice in writing to us declare the entire principal amount of all
debt securities of the affected series, and accrued interest, if any, to be due and payable immediately, and upon any such declaration
the same shall become immediately due and payable.
If an Event of Default described in clause
(4) above occurs and is continuing, then the principal amount of all the debt securities then outstanding and accrued interest
shall be and become due immediately and payable without any declaration, notice or other action by any holder of the debt securities
or the trustee.
The trustee will, within 90 days after
the occurrence of any default actually known to it, give notice of the default to the holders of the debt securities of that series,
unless the default was already cured or waived. Unless there is a default in paying principal or interest when due, the trustee
can withhold giving notice to the holders if it determines in good faith that the withholding of notice is in the interest of the
holders.
Satisfaction, Discharge and Defeasance
We may discharge our obligations under
each indenture, except as to:
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·
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the rights of registration of transfer and exchange of debt securities, and our right of optional redemption, if any;
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·
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substitution of mutilated, defaced, destroyed, lost or stolen debt securities;
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·
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the rights of holders of the debt securities to receive payments of principal and interest;
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·
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the rights, obligations and immunities of the trustee; and
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·
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the rights of the holders of the debt securities as beneficiaries with respect to the property deposited with the trustee payable
to them (as described below);
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when:
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·
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all debt securities of any series issued that have been authenticated and delivered have been delivered by us to the trustee
for cancellation; or
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·
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all the debt securities of any series issued that have not been delivered by us to the trustee for cancellation have become
due and payable or will become due and payable within one year or are to be called for redemption within one year under arrangements
satisfactory to the trustee for the giving of notice of redemption by such trustee in our name and at our expense, and we have
irrevocably deposited or caused to be deposited with the trustee as trust funds the entire amount sufficient to pay at maturity
or upon redemption all debt securities of such series not delivered to the trustee for cancellation, including principal and interest
due or to become due on or prior to such date of maturity or redemption;
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·
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we have paid or caused to be paid all other sums then due and payable under such indenture; and ·
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·
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we have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that all conditions
precedent under such indenture relating to the satisfaction and discharge of such indenture have been complied with.
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In addition, unless the applicable prospectus
supplement and supplemental indenture otherwise provide, we may elect either (i) to have our obligations under each indenture discharged
with respect to the outstanding debt securities of any series (“legal defeasance”) or (ii) to be released from our
obligations under each indenture with respect to certain covenants applicable to the outstanding debt securities of any series
(“covenant defeasance”). Legal defeasance means that we will be deemed to have paid and discharged the entire indebtedness
represented by the outstanding debt securities of such series under such indenture and covenant defeasance means that we will no
longer be required to comply with the obligations with respect to such covenants (and an omission to comply with such obligations
will not constitute a default or event of default).
In order to exercise legal defeasance or
covenant defeasance with respect to outstanding debt securities of any series:
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·
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we must irrevocably have deposited or caused to be deposited with the trustee as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated solely to the benefits of the holders of the debt securities
of a series:
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·
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U.S. government obligations; or ·
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·
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a combination of money and U.S. government obligations,
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in each case sufficient without reinvestment, in the
written opinion of a nationally recognized firm of independent public accountants, to pay and discharge, and which shall be applied
by the trustee to pay and discharge, all of the principal and interest at due date or maturity or if we have made irrevocable arrangements
satisfactory to the trustee for the giving of notice of redemption by the trustee, the redemption date;
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·
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we have delivered to the trustee an opinion of counsel stating that, under then applicable U.S. federal income tax law, the
holders of the debt securities of that series will not recognize gain or loss for U.S. federal income tax purposes as a result
of the defeasance and will be subject to the same federal income tax as would be the case if the defeasance did not occur;
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·
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no default relating to bankruptcy or insolvency and, in the case of a covenant defeasance, no other default has occurred and
is continuing at any time;
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·
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if at such time the debt securities of such series are listed on a national securities exchange, we have delivered to the trustee
an opinion of counsel to the effect that the debt securities of such series will not be delisted as a result of such defeasance;
and ·
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·
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we have delivered to the trustee an officers’ certificate and an opinion of counsel stating that all conditions precedent
with respect to the defeasance have been complied with.
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We are required to furnish to each trustee
an annual statement as to compliance with all conditions and covenants under the indenture.
Description
of Warrants
We may issue warrants to purchase debt
securities, common shares or other securities. We may issue warrants independently or together with other securities. Warrants
sold with other securities may be attached to or separate from the other securities. We will issue warrants under one or more warrant
agreements between our company and a warrant agent that we will name in the applicable prospectus supplement.
The prospectus supplement relating to any
warrants we offer will include specific terms relating to the offering. These terms will include some or all of the following:
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·
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the title of the warrants;
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·
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the aggregate number of warrants offered;
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·
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the designation, number and terms of the debt securities, common shares or other securities purchasable upon exercise of the
warrants and procedures by which those numbers may be adjusted;
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·
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the exercise price of the warrants;
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·
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the dates or periods during which the warrants are exercisable;
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the designation and terms of any securities with which the warrants are issued;
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if the warrants are issued as a unit with another security, the date on and after which the warrants and the other security
will be separately transferable;
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if the exercise price is not payable in U.S. dollars, the foreign currency, currency unit or composite currency in which the
exercise price is denominated;
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any minimum or maximum amount of warrants that may be exercised at any one time;
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any terms relating to the modification of the warrants;
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any terms, procedures and limitations relating to the transferability, exchange or exercise of the warrants; and
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any other specific terms of the warrants.
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The terms of any warrants to be issued
and a description of the material provisions of the applicable warrant agreement will be set forth in the applicable prospectus
supplement.
Description
of Purchase Contracts
We may issue purchase contracts for the
purchase or sale of debt or equity securities issued by us or securities of third parties, a basket of such securities, an index
or indices or such securities or any combination of the above as specified in the applicable prospectus supplement.
Each purchase contract will entitle the
holder thereof to purchase or sell, and obligate us to sell or purchase, on specified dates, such securities at a specified purchase
price, which may be based on a formula, all as set forth in the applicable prospectus supplement. We may, however, satisfy our
obligations, if any, with respect to any purchase contract by delivering the cash value of such purchase contract or the cash value
of the property otherwise deliverable as set forth in the applicable prospectus supplement. The applicable prospectus supplement
will also specify the methods by which the holders may purchase or sell such securities and any acceleration, cancellation or termination
provisions or other provisions relating to the settlement of a purchase contract.
The purchase contracts may require us to
make periodic payments to the holders thereof or vice versa, which payments may be deferred to the extent set forth in the applicable
prospectus supplement, and those payments may be unsecured or prefunded on some basis. The purchase contracts may require the holders
thereof to secure their obligations in a specified manner to be described in the applicable prospectus supplement. Alternatively,
purchase contracts may require holders to satisfy their obligations thereunder when the purchase contracts are issued. Our obligation
to settle such pre-paid purchase contracts on the relevant settlement date may constitute indebtedness. Accordingly, pre-paid purchase
contracts will be issued under either the senior indenture or the subordinated indenture.
Description
of Units
As specified in the applicable prospectus
supplement, we may issue units consisting of one or more common shares, debt securities, warrants, purchase contracts or any combination
of such securities. The applicable prospectus supplement will describe:
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the terms of the units and of the common shares, debt securities, warrants and/ or purchase contracts comprising the units,
including whether and under what circumstances the securities comprising the units may be traded separately;
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a description of the terms of any unit agreement governing the units; and
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·
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a description of the provisions for the payment, settlement, transfer or exchange of the units.
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Forms of
Securities
Each debt security, warrant and unit will
be represented either by a certificate issued in definitive form to a particular investor or by one or more global securities representing
the entire issuance of securities. Certificated securities in definitive form and global securities will be issued in registered
form. Definitive securities name you or your nominee as the owner of the security, and in order to transfer or exchange these securities
or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities
to the trustee, registrar, paying agent or other agent, as applicable. Global securities name a depositary or its nominee as the
owner of the debt securities, warrants or units represented by these global securities. The depositary maintains a computerized
system that will reflect each investor’s beneficial ownership of the securities through an account maintained by the investor
with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Registered Global Securities
We may issue the registered debt securities,
warrants and units in the form of one or more fully registered global securities that will be deposited with a depositary or its
nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases,
one or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the
aggregate principal or face amount of the securities to be represented by registered global securities. Unless and until it is
exchanged in whole for securities in definitive registered form, a registered global security may not be transferred except as
a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of the
depositary or those nominees.
If not described below, any specific terms
of the depositary arrangement with respect to any securities to be represented by a registered global security will be described
in the prospectus supplement relating to those securities. We anticipate that the following provisions will apply to all depositary
arrangements.
Ownership of beneficial interests in a
registered global security will be limited to persons, called participants, that have accounts with the depositary or persons that
may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its
book-entry registration and transfer system, the participants’ accounts with the respective principal or face amounts of
the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution of
the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will
be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with
respect to interests of participants, and on the records of participants, with respect to interests of persons holding through
participants. The laws of some states may require that some purchasers of securities take physical delivery of these securities
in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary, or its nominee,
is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered
the sole owner or holder of the securities represented by the registered global security for all purposes under the applicable
indenture, warrant agreement or unit agreement. Except as described below, owners of beneficial interests in a registered global
security will not be entitled to have the securities represented by the registered global security registered in their names, will
not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners
or holders of the securities under the applicable indenture, warrant agreement or unit agreement. Accordingly, each person owning
a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered global
security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest,
to exercise any rights of a holder under the applicable indenture, warrant agreement or unit agreement. We understand that under
existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global
security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement
or unit agreement, the depositary for the registered global security would authorize the participants holding the relevant beneficial
interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take
that action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal, premium, if any, and interest
payments on debt securities, and any payments to holders with respect to warrants or units, represented by a registered global
security registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be,
as the registered owner of the registered global security. None of Auris Medical Holding AG, its affiliates, the trustees, the
warrant agents, the unit agents or any other agent of Auris Medical Holding AG, agent of the trustees or agent of the warrant agents
or unit agents will have any responsibility or liability for any aspect of the records relating to payments made on account of
beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating
to those beneficial ownership interests.
We expect that the depositary for any of
the securities represented by a registered global security, upon receipt of any payment of principal, premium, interest or other
distribution of underlying securities or other property to holders on that registered global security, will immediately credit
participants’ accounts in amounts proportionate to their respective beneficial interests in that registered global security
as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a
registered global security held through participants will be governed by standing customer instructions and customary practices,
as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,”
and will be the responsibility of those participants.
If the depositary for any of these securities
represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing
agency registered under the Exchange Act, and a successor depositary registered as a clearing agency under the Exchange Act is
not appointed by us within 90 days, we will issue securities in definitive form in exchange for the registered global security
that had been held by the depositary. Any securities issued in definitive form in exchange for a registered global security will
be registered in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent or other relevant
agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions received by the
depositary from participants with respect to ownership of beneficial interests in the registered global security that had been
held by the depositary.
Plan of
Distribution
We, or the selling shareholder, as applicable,
may sell the securities in one or more of the following ways (or in any combination) from time to time:
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through underwriters or dealers;
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directly to a limited number of purchasers or to a single purchaser;
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in “at the market” offerings, within the meaning of the Rule 415(a)(4) of the Securities Act, to or through a market
maker or into an existing trading market on an exchange or otherwise; or
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through any other method permitted by applicable law and described in the applicable prospectus supplement.
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The prospectus supplement will state the
terms of the offering of the securities, including:
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the name or names of any underwriters, dealers or agents;
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the purchase price of such securities and the proceeds to be received by us, if any;
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any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation;
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any initial public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchanges on which the securities may be listed.
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Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale, the
securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions,
including:
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negotiated transactions;
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·
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at a fixed public offering price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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·
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at prices related to prevailing market prices; or
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Unless otherwise stated in a prospectus
supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary closing conditions
and the underwriters will be obligated to purchase all of such series of securities, if any are purchased.
The securities may be sold through agents
from time to time. The prospectus supplement will name any agent involved in the offer or sale of the securities and any commissions
paid to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment.
We, or the selling shareholder, as applicable,
may authorize underwriters, dealers or agents to solicit offers by certain purchasers to purchase the securities at the public
offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery
on a specified date in the future. The
contracts will be subject only to those
conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions paid for solicitation
of these contracts.
Underwriters and agents may be entitled
under agreements entered into with us or the selling shareholder, as applicable, to indemnification by us or the selling shareholder,
as applicable, against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect
to payments which the underwriters or agents may be required to make.
The prospectus supplement may also set
forth whether or not underwriters may over-allot or effect transactions that stabilize, maintain or otherwise affect the market
price of the securities at levels above those that might otherwise prevail in the open market, including, for example, by entering
stabilizing bids, effecting syndicate covering transactions or imposing penalty bids.
Underwriters and agents may be customers
of, engage in transactions with, or perform services for us and our affiliates in the ordinary course of business.
Each series of securities will be a new
issue of securities and will have no established trading market, other than our common shares, which are listed on Nasdaq Global
Market. Any underwriters to whom securities are sold for public offering and sale may make a market in the securities, but such
underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The securities, other
than our common shares, may or may not be listed on a national securities exchange.
Incorporation
of Certain Information by Reference
The SEC allows us to incorporate by reference
information into this document. This means that we can disclose important information to you by referring you to another document
filed separately with the SEC. The information incorporated by reference is considered to be a part of this document, except for
any information superseded by information that is included directly in this prospectus or incorporated by reference subsequent
to the date of this prospectus.
We incorporate by reference the following
documents or information that we have filed with the SEC
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our Annual Report on Form 20-F for the fiscal year ended December 31, 2017;
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our Reports on Form 6-K filed on August 15, 2018 (other than exhibit 99.3 thereto) and October 17, 2018; and
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the description of our common shares contained in our registration statement on Form 8-A filed with the SEC on July 29, 2014
and amended on June 1, 2016, including any subsequent amendment or reports filed for the purpose of updating such description.
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All annual reports we file with the SEC
pursuant to the Exchange Act on Form 20-F after the date of this prospectus and prior to termination or expiration of this registration
statement shall be deemed incorporated by reference into this prospectus and to be part hereof from the date of filing of such
documents. We may incorporate by reference any Form 6-K subsequently submitted to the SEC by identifying in such Form 6-K that
it is being incorporated by reference into this prospectus.
Documents incorporated by reference in
this prospectus are available from us without charge upon written or oral request, excluding any exhibits to those documents that
are not specifically incorporated by reference into those documents. You can obtain documents incorporated by reference in this
document by requesting them from us in writing or at Auris Medical Holding AG, Bahnhofstrasse 21, 6300 Zug, Switzerland or via
telephone at +41 (0)41 729 71 94.
Enforcement
of Civil Liabilities
We are organized under the laws of Switzerland
and our jurisdiction of incorporation is Zug, Switzerland. Moreover, a number of our directors and executive officers and a number
of directors of each of our subsidiaries are not residents of the United States, and all or a substantial portion of the assets
of such persons are located outside the United States. As a result, it may not be possible for investors to effect service of process
within the United States upon us or upon such persons or to enforce against them judgments obtained in U.S. courts, including amongst
others judgments in actions predicated upon the civil liability provisions of the federal securities laws of the United States.
We have been advised by our Swiss counsel that there is doubt as to the enforceability in Switzerland of original actions, or of
actions for enforcement of judgments of U.S. courts, of civil liabilities to the extent predicated inter alia upon the federal
and state securities laws of the United States. Original actions against persons in Switzerland based solely upon the U.S. federal
or state securities laws are governed, among other things, by the principles set forth in the Swiss Federal Act on International
Private Law. This statute provides that the application of provisions of non-Swiss law by the courts in Switzerland shall be precluded
if the result was incompatible with Swiss public policy. Also, mandatory provisions of Swiss law may be applicable regardless of
any other law that would otherwise apply.
Switzerland and the United States do not
have a treaty providing for reciprocal recognition of and enforcement of judgments in civil and commercial matters. The recognition
and enforcement of a judgment of the courts of the United States in Switzerland is governed by the principles set forth in the
Swiss Federal Act on Private International Law. This statute provides in principle that a judgment rendered by a non-Swiss court
may be enforced in Switzerland only if:
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the non-Swiss court had jurisdiction pursuant to the Swiss Federal Act on Private International Law;
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the judgment of such non-Swiss court has become final and non-appealable;
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the judgment does not contravene Swiss public policy;
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the court procedures and the service of documents leading to the judgment were in accordance with the due process of law;
and
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no proceeding involving the same position and the same subject matter was first brought in Switzerland, or adjudicated in Switzerland,
or was earlier adjudicated in a third state and this decision is recognizable in Switzerland.
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Expenses
The following table sets forth the expenses
(other than underwriting discounts and commissions or agency fees and other items constituting underwriters’ or agents’
compensation, if any) expected to be incurred by us in connection with a possible offering of securities registered under this
registration statement.
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Amount
To Be Paid
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SEC registration fee
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$
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12,122
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FINRA filing fee
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$
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*
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Transfer agent’s fees
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*
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Printing and engraving expenses
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*
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Legal fees and expenses
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*
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Accounting fees and expenses
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*
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Miscellaneous
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*
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Total
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$
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*
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*
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To be provided by a prospectus supplement or a Report on Form 6-K that is incorporated by reference into this prospectus.
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Legal Matters
The validity of our common shares and certain
other matters of Swiss law will be passed upon for us by Walder Wyss Ltd., Switzerland. Certain matters of U.S. federal and New
York State law will be passed upon for us by Davis Polk & Wardwell LLP, New York, New York.
Experts
The consolidated financial statements incorporated
in this prospectus by reference from the Auris Medical Holding AG’s Annual Report on Form 20-F for the year ended December
31, 2017 have been audited by Deloitte AG, an independent registered public accounting firm, as stated in their report, which is
incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance upon the report
of such firm, given upon their authority as experts in accounting and auditing.
The current address of Deloitte AG is General
Guisan-Quai 38, 8002 Zurich, Switzerland, phone number +(41) 58 279 60 00.
Auris Medical Holding AG
Common Shares
Debt Securities
Warrants
Purchase Contracts
Units
PROSPECTUS
Part II – Information Not Required In Prospectus
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Under Swiss law, a corporation may indemnify
its directors or officers against losses and expenses (except for such losses and expenses arising from willful misconduct or negligence,
although legal scholars advocate that at least gross negligence be required), including attorneys’ fees, judgments, fines
and settlement amounts actually and reasonably incurred in a civil or criminal action, suit or proceeding by reason of having been
the representative of, or serving at the request of, the corporation.
Subject to Swiss law, Article 17 of our
articles of association provides for indemnification of the existing and former members of the board of directors, executive management
and their heirs, executors and administrators, against liabilities arising in connection with the performance of their duties in
such capacity, and permits us to advance the expenses of defending any act, suit or proceeding to members of our board of directors
and executive management.
In addition, under general principles of
Swiss employment law, an employer may be required to indemnify an employee against losses and expenses incurred by such employee
in the proper execution of their duties under the employment agreement with the employer.
We have entered into indemnification agreements
with each of the members of our board of directors and executive officers.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company, the Company has
been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed
in the Securities Act of 1933, as amended, and is, therefore, unenforceable.
EXHIBITS
The following documents are filed as part
of this registration statement:
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1.1*
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Form of Underwriting Agreement
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4.5*
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Form of Subordinated Note
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4.6*
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Form of Warrant Agreement
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4.7*
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Form of Purchase Contract
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4.8*
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Form of Unit Agreement
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25.1*
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Statement of Eligibility on Form T-1 for Senior Indenture
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25.2*
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Statement of Eligibility on Form T-1 for Subordinated Indenture
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* To be filed, if necessary, by amendment.
UNDERTAKINGS
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(a)
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The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) (§ 230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than
20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement.
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
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Provided
,
however
, That:
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(A)
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Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8 (§ 239.16b
of this chapter), and the information required to be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration statement; and
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(B)
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Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3
(§ 239.13 of this chapter) or Form F-3 (§ 239.33 of this chapter) and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b) (§ 230.424(b) of this chapter) that is part of the registration
statement.
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(C)
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Provided further
,
however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement
is for an offering of asset-backed securities on Form S-1 (§ 239.11 of this chapter) or Form S-3 (§ 239.13 of this chapter),
and the information required to be included in a post-effective amendment is provided pursuant to Item 1100(c) of Regulation AB
(§ 229.1100(c)).
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
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(4)
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To file a post-effective amendment to the registration statement to include any financial statements required by “Item
8.A. of Form 20- F” at the start of any delayed offering or
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throughout a continuous offering.
Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the
registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph
(a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date
of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3 (§ 239.33
of this chapter), a post-effective amendment need not be filed to include financial statements and information required by Section
10(a)(3) of the Act or § 210.3-19 of this chapter if such financial statements and information are contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Form F-3.
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(5)
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That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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(A)
|
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and
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(B)
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Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Provided
,
however
, that no statement made
in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to
a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or made in any such document immediately prior
to such effective date; or
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(6)
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That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities:
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The undersigned registrant undertakes that
in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of
the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
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(i)
|
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
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(ii)
|
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
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(iii)
|
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
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(iv)
|
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(b)
|
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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(c)
|
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
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(d)
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The undersigned registrant hereby undertakes that:
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(1)
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For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement
as of the time it was declared effective.
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(2)
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For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains
a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(e)
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The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations
prescribed by the Commission under section 305(b)(2) of the Act.
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SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in Zug, Switzerland on this day of November 1, 2018.
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Auris Medical Holding AG
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By:
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/s/ Thomas Meyer
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Name:
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Thomas Meyer
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Title:
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Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below hereby constitutes and appoints Thomas Meyer and Hernan Levett and
each of them, individually, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead in any and all capacities, in connection with this registration statement,
including to sign in the name and on behalf of the undersigned, this registration statement and any and all amendments thereto,
including post-effective amendments and registrations filed pursuant to Rule 462 under the U.S. Securities Act of 1933, and to
file the same, with all exhibits thereto, and other documents in connection therewith, with the U.S. Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or either them or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates
indicated:
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Name
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Title
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Date
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/s/
Thomas Meyer
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Thomas Meyer
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Chief Executive Officer and Director (principal executive officer)
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November 1, 2018
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/s/
Hernan Levett
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Hernan Levett
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Chief Financial Officer
(principal financial officer and principal accounting officer)
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November 1, 2018
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/s/
Armando Anido
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Armando Anido
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Director
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November 1, 2018
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/s/
Alain Munoz
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Alain Munoz
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Director
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November 1, 2018
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/s/
Calvin Roberts
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Calvin Roberts
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Director
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November 1, 2018
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/s/
Mats Peter Blom
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Mats Peter Blom
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Director
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November 1, 2018
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/s/
Colleen A. DeVries
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Colleen A. DeVries
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SVP
of Cogency Global Inc.
Authorized
Representative in the
United States
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November 1, 2018
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EXHIBIT INDEX
The following documents are filed as part
of this registration statement:
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1.1*
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Form of Underwriting Agreement
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4.1
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Amended and Restated Articles of Association dated October 31, 2018
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4.2
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Form of Senior Indenture (incorporated herein by reference to exhibit 4.2 of the Auris Medical Holding AG registration statement
on Form F-3 (Registration no. 333-206710) filed with the Commission on September 1, 2015)
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4.3
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Form of Subordinated Indenture (incorporated herein by reference to exhibit 4.3 of the Auris Medical Holding AG registration
statement on Form F-3 (Registration no. 333-206710) filed with the Commission on September 1, 2015)
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4.5*
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Form of Subordinated Note
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4.6*
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Form of Warrant Agreement
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4.7*
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Form of Purchase Contract
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4.8*
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Form of Unit Agreement
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5.1
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Opinion of Walder Wyss Ltd.
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5.2
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Opinion of Davis Polk & Wardwell LLP
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23.1
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Consent of Deloitte AG
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23.2
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Consent of Walder Wyss Ltd. (included in exhibit 5.1)
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23.3
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Consent of Davis Polk & Wardwell LLP (included in exhibit 5.2)
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24.1
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Powers of attorney (included on signature page to the registration statement)
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25.1*
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Statement of Eligibility on Form T-1 for Senior Indenture
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25.2*
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Statement of Eligibility on Form T-1 for Subordinated Indenture
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* To be filed, if necessary, by as an exhibit to a post-effective amendment to this registration statement or as an exhibit to a report filed under the Securities
Exchange Act of 1934, as amended, and incorporated herein by reference.
